1009-00003 · Client 1009 · Closing

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FORM OF FIRPTA CERTIFICATE

CERTIFICATION OF NON-FOREIGN STATUS AND NON-U.S. REAL PROPERTY HOLDING CORPORATION STATUS

Pursuant to Treasury Regulation § 1.1445-2(c)(3) and Section 1445 of the Internal Revenue Code of 1986, as Amended

INSTRUCTION: This certificate is a standard form template intended for use in connection with the closing of a merger, acquisition, or other disposition transaction subject to the withholding provisions of Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code"). This form is designed to be delivered at the closing of the transaction pursuant to Treasury Regulation § 1.1445-2(c)(3), which provides that no withholding is required under Section 1445 of the Code if the transferor furnishes to the transferee an affidavit stating, under penalty of perjury, the transferor's United States taxpayer identification number and that the transferor is not a foreign person. This form should be completed and executed by a duly authorized officer of the target entity who has sufficient knowledge of the facts and circumstances necessary to make the certifications contained herein. All bracketed placeholders must be completed with the applicable transaction-specific information prior to execution. This form should not be executed without prior review and approval by qualified tax counsel.

FIRPTA CERTIFICATE

CERTIFICATION OF NON-FOREIGN STATUS AND NON-U.S. REAL PROPERTY HOLDING CORPORATION STATUS

RECITALS AND PURPOSE

This Certificate of Non-Foreign Status and Non-U.S. Real Property Holding Corporation Status (this "Certificate") is made and delivered as of [Insert date of execution — should correspond to the closing date of the transaction] by [Insert full legal name of certifying entity], a [Insert entity type, e.g., corporation, limited liability company] organized under the laws of [Insert jurisdiction of organization] (the "Company").

This Certificate is delivered pursuant to the terms and conditions of that certain [Insert title of transaction agreement, e.g., Agreement and Plan of Merger], dated as of [Insert date of transaction agreement], by and among [Insert names of all parties to the transaction agreement] (as the same may have been amended, restated, supplemented, or otherwise modified from time to time, the "Transaction Agreement"). Capitalized terms used but not otherwise defined in this Certificate shall have the meanings ascribed to such terms in the Transaction Agreement.

This Certificate is provided to [Insert full legal name of acquiror or surviving entity] (the "Acquiror") in accordance with the requirements of Treasury Regulation § 1.1445-2(c)(3), promulgated under Section 1445 of the Code, in order to establish that the Acquiror is not required to withhold tax under Section 1445 of the Code with respect to the transactions contemplated by the Transaction Agreement (the "Transactions"). Section 1445 of the Code generally requires a transferee to withhold tax if the transferor is a foreign person. Treasury Regulation § 1.1445-2(c)(3) provides an exemption from such withholding obligation where the transferor entity furnishes to the transferee an affidavit, signed under penalty of perjury, stating the transferor's name, address, and United States taxpayer identification number, and certifying that the transferor is not a foreign person. The Company delivers this Certificate for the purpose of satisfying such requirements and confirming the Acquiror's entitlement to rely upon the exemption from withholding set forth therein.

SECTION 1 — CERTIFICATION OF NON-FOREIGN STATUS

INSTRUCTION: This Section 1 contains the core certifications required under Treasury Regulation § 1.1445-2(c)(3) to establish that the Company is not a "foreign person" for purposes of Section 1445 of the Code. Each subsection must be completed with the applicable entity-specific information. The authorized officer executing this Certificate should independently verify the accuracy of each certification prior to execution.

The undersigned, in the capacity set forth in Section 4 below, hereby certifies, represents, and warrants to the Acquiror, under penalty of perjury, as follows:

(a) The Company is not a "foreign person" within the meaning of Section 1445(f)(3) of the Code. For purposes of this certification, a "foreign person" means a nonresident alien individual, a foreign corporation that does not have an election in effect under Section 897(i) of the Code, a foreign partnership, a foreign trust, or a foreign estate, as each such term is defined in the Code and the Treasury Regulations promulgated thereunder. The Company is a domestic entity that is not treated as a foreign person under any provision of the Code or the Treasury Regulations.

(b) The Company's United States employer identification number, as assigned by the Internal Revenue Service, is: [Insert U.S. Employer Identification Number (EIN)].

[Insert street address] [Insert city, state, and zip code] [Insert country, if applicable]

(d) The Company is a [Insert entity type, e.g., corporation, limited liability company, limited partnership] duly organized, validly existing, and in good standing under the laws of the [Insert state or jurisdiction of organization, e.g., State of Delaware, Commonwealth of Virginia].

(e) The Company is not a disregarded entity for United States federal income tax purposes. The Company is classified as a [Insert applicable federal income tax classification, e.g., corporation, partnership] for United States federal income tax purposes and has not elected to be treated as an entity other than its default classification under Treasury Regulation § 301.7701-3.

INSTRUCTION: If the Company is a disregarded entity, this form may not be appropriate, and the certificate should instead be provided by the regarded owner of the disregarded entity. Consult tax counsel to determine the appropriate certifying party and the form of the certificate.

SECTION 2 — CERTIFICATION REGARDING U.S. REAL PROPERTY HOLDING CORPORATION STATUS

INSTRUCTION: This Section 2 provides certifications that the Company does not constitute a "United States real property holding corporation" as defined in Section 897(c)(2) of the Code. These certifications serve as an additional layer of comfort to the Acquiror, confirming that no interest in the Company constitutes a "United States real property interest" by reason of the Company's status. If the Company cannot truthfully make the certifications set forth in subsection (a) below, this form should not be used; in such event, the parties should consult qualified tax counsel regarding alternative approaches, including the potential application of the withholding requirements under Section 1445 of the Code and the availability of any other exemptions, reduced rates, or withholding certificates from the Internal Revenue Service pursuant to Section 1445(b)(4) or Treasury Regulation § 1.1445-3.

The undersigned further certifies, represents, and warrants to the Acquiror, under penalty of perjury, as follows:

(a) The Company is not, and has not been at any time during the five-year period ending on the date hereof (or, if shorter, the period during which the Company has been in existence), a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Code. For purposes of this certification, a "United States real property holding corporation" is any corporation if the fair market value of its United States real property interests equals or exceeds fifty percent (50%) of the sum of the fair market value of (i) its United States real property interests, (ii) its interests in real property located outside the United States, and (iii) any other assets which are used or held for use in a trade or business, as determined in accordance with Treasury Regulation § 1.897-2.

(b) No interest in the Company constitutes a "United States real property interest" within the meaning of Section 897(c)(1) of the Code by reason of the Company being a United States real property holding corporation, as described in Section 897(c)(1)(A)(ii) of the Code. Accordingly, the disposition of any interest in the Company in connection with the Transactions does not give rise to gain that is subject to tax under Section 897(a) of the Code by reason of such provision.

INSTRUCTION: If the Company holds, or has held during the relevant five-year lookback period, any United States real property interests (as defined in Section 897(c)(1) of the Code, which generally includes interests in real property located within the United States or the U.S. Virgin Islands, as well as any interest, other than solely as a creditor, in any domestic corporation that is itself a United States real property holding corporation), additional analysis is required to determine whether the Company satisfies the asset-ratio test of Section 897(c)(2). Specifically, tax counsel should determine whether the fair market value of the Company's United States real property interests equals or exceeds 50% of the aggregate fair market value of (i) all of the Company's United States real property interests, (ii) all of the Company's interests in real property located outside the United States, and (iii) all other assets of the Company that are used or held for use in a trade or business. If the Company meets or exceeds this threshold at any time during the applicable lookback period, this Certificate should not be delivered. If the transaction involves a merger or other reorganization, counsel should also consider whether the exemption from gain recognition under Section 897(e) of the Code, or the reorganization provisions of Section 354 or Section 368 of the Code, may apply so as to obviate the need for withholding under Section 1445 of the Code, in which case an alternative form of certificate or other documentation may be appropriate.

SECTION 3 — ACKNOWLEDGMENTS AND RELIANCE

The undersigned, on behalf of the Company, further acknowledges and agrees as follows:

(a) Reliance. This Certificate is made and delivered pursuant to the provisions of Treasury Regulation § 1.1445-2(c)(3) and is intended to and may be relied upon by the Acquiror and its agents, successors, and assigns for the purpose of establishing an exemption from the withholding obligation imposed by Section 1445 of the Code with respect to the Transactions. The Acquiror is entitled to rely on the certifications set forth in this Certificate in determining that no withholding is required under Section 1445 of the Code in connection with the consummation of the Transactions, and the Acquiror shall have no independent obligation to investigate or verify the accuracy of the certifications contained herein, except to the extent that the Acquiror has actual knowledge, or receives notice, that any such certification is untrue.

(b) Disclosure to Internal Revenue Service. The Company acknowledges and understands that this Certificate may be disclosed to the Internal Revenue Service by the Acquiror or by any other party as may be required or permitted by applicable law, regulation, or administrative guidance. The Company further acknowledges and understands that any false statement contained in this Certificate could be punished by fine, imprisonment, or both, under the applicable provisions of the Code and Title 18 of the United States Code (including, without limitation, Section 7206 of the Code and 18 U.S.C. § 1001), and that the undersigned could be subject to civil penalties under the Code for any negligent or intentional disregard of the rules and regulations governing the certifications contained herein.

(c) Notification of Changes. The undersigned, on behalf of the Company, agrees to promptly notify [Insert full legal name of acquiror] in writing if, at any time prior to the closing of the Transactions (including any postponement or adjournment thereof), the undersigned becomes aware that any of the certifications, representations, or warranties set forth in this Certificate are or have become untrue, inaccurate, or misleading in any respect. Such notification shall be provided in accordance with the notice provisions of the Transaction Agreement, or if no such provisions are applicable, by hand delivery or nationally recognized overnight courier to the address of the Acquiror set forth in the Transaction Agreement.

(d) No Other Representations. Except as expressly set forth in this Certificate, the Company makes no representation or warranty of any kind to the Acquiror with respect to the tax treatment of the Transactions, and nothing in this Certificate shall be deemed to expand or modify the representations, warranties, covenants, or obligations of the Company under the Transaction Agreement.

SECTION 4 — AUTHORITY OF SIGNATORY

The undersigned hereby certifies, represents, and warrants that:

(a) The undersigned is a duly authorized officer of the Company, holding the office set forth in the signature block below, and is fully authorized and empowered to execute and deliver this Certificate on behalf of the Company.

(b) The execution and delivery of this Certificate by the undersigned has been duly authorized by all necessary corporate (or equivalent organizational) action on the part of the Company, and no further consent, approval, authorization, or other action by any person or entity is required in connection therewith.

(c) The undersigned has the requisite knowledge of the facts, circumstances, and records of the Company necessary to make the certifications, representations, and warranties contained in this Certificate, and has made such inquiry and investigation as the undersigned has deemed necessary and appropriate to confirm the accuracy of such certifications, representations, and warranties.

(d) The undersigned has reviewed this Certificate with qualified tax counsel and understands the legal significance and consequences of the certifications, representations, and warranties contained herein, including the potential penalties for any false or misleading statements.

EXECUTION

IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the date first set forth above.

[INSERT FULL LEGAL NAME OF CERTIFYING ENTITY]

By: ________

Name: [Insert name of authorized officer]

Title: [Insert title of authorized officer, e.g., Chief Executive Officer, Chief Financial Officer, President, General Counsel, or other duly authorized officer]

Date: ________

INSTRUCTION: The date of execution should correspond to the closing date of the Transactions, or such other date as may be specified in the Transaction Agreement as the date on which this Certificate is required to be delivered.

FORMATTING AND DELIVERY NOTES (Internal Instructions — Not Part of Certificate)

The following instructions are provided for the guidance of the parties and their counsel in connection with the preparation, execution, and delivery of this Certificate. These instructions do not form a part of the Certificate itself and should not be included in the executed version of the Certificate delivered at closing.

1. Presentation and Format

This Certificate should be printed on the letterhead of the certifying entity, or alternatively, presented as a standalone executed document. If printed on letterhead, the title block of the Certificate (including the heading "Certification of Non-Foreign Status and Non-U.S. Real Property Holding Corporation Status") should appear prominently on the first page. If presented as a standalone document, the full legal name and organizational details of the certifying entity should be clearly identified in the recitals.

2. Closing Condition Cross-Reference

Delivery of this Certificate is typically a condition to the closing of the Transactions as set forth in the Transaction Agreement. Prior to execution, counsel for the Acquiror and counsel for the Company should confirm that the applicable closing condition in the Transaction Agreement correctly cross-references this Certificate, including the specific section of the Transaction Agreement pursuant to which delivery is required (e.g., Section [__] of the Transaction Agreement). Any discrepancy between the closing condition and the form of this Certificate should be resolved prior to execution.

3. Retention of Original

A copy of the fully executed Certificate should be retained in the closing binder maintained by the parties and their respective counsel. The Acquiror must retain the original executed Certificate in its files and records pursuant to Treasury Regulation § 1.1445-2(c)(3)(ii), which requires the transferee to retain the affidavit until the end of the fifth calendar year following the calendar year in which the transfer takes place. The Acquiror should ensure that its document retention policies comply with this requirement.

4. Review by Tax Counsel

This Certificate should be reviewed by qualified tax counsel (both for the Company and for the Acquiror) prior to execution to confirm that: (i) the factual representations and certifications contained herein are accurate and complete in all material respects; (ii) the form of the Certificate complies with the requirements of Treasury Regulation § 1.1445-2(c)(3) and all other applicable Treasury Regulations; (iii) the use of this form is appropriate in light of the specific facts and circumstances of the Transactions; and (iv) no additional certifications, representations, or disclosures are required under applicable law or regulation.

5. Mergers, Reorganizations, and Other Special Transactions

If the Transactions involve a merger, consolidation, share exchange, or other form of reorganization, counsel should confirm that this Certificate is appropriately tailored to the specific structure of the Transactions. In particular, counsel should consider: (i) whether Section 897(a) of the Code applies to the disposition of interests in the Company in connection with the Transactions; (ii) whether the exemption from gain recognition under Section 897(e) of the Code is available (which generally provides that gain shall not be recognized on the transfer of a United States real property interest to a foreign corporation in an exchange described in Section 332, 351, 354, 355, 356, or 361 of the Code, subject to certain conditions and limitations); and (iii) whether the reorganization provisions of Sections 354, 355, 356, 361, or 368 of the Code otherwise obviate the need for withholding under Section 1445, in which case an alternative form of certificate or other documentation (such as a notice of nonrecognition pursuant to Treasury Regulation § 1.1445-2(d)) may be more appropriate.

6. U.S. Real Property Interests — Asset-Ratio Test Analysis

If the certifying entity holds, or has held at any time during the applicable five-year lookback period (or shorter period of existence), any United States real property interests (as defined in Section 897(c)(1) of the Code), a detailed analysis must be conducted prior to execution of this Certificate to determine whether the certifying entity qualifies, or has qualified, as a "United States real property holding corporation" under the asset-ratio test of Section 897(c)(2) of the Code. This test requires a determination of whether the fair market value of the certifying entity's United States real property interests equals or exceeds fifty percent (50%) of the sum of the fair market values of:

(i) all of the certifying entity's United States real property interests;

(ii) all of the certifying entity's interests in real property located outside the United States; and

(iii) all other assets of the certifying entity that are used or held for use in a trade or business.

This determination must be made on each "determination date" during the lookback period, as prescribed by Treasury Regulation § 1.897-2(c). If the certifying entity meets or exceeds the fifty percent (50%) threshold on any determination date during the applicable period, the certifications in Section 2 of this Certificate cannot be made, and this form should not be used. In such event, the parties should consult with tax counsel regarding the withholding obligations of the Acquiror under Section 1445 of the Code and the potential availability of a withholding certificate from the Internal Revenue Service under Section 1445(b)(4) and Treasury Regulation § 1.1445-3, or such other exemptions or reduced rates as may be applicable.

7. State and Local Withholding

This Certificate addresses only the federal withholding requirements of Section 1445 of the Code. The parties and their counsel should independently confirm whether any state or local withholding or reporting obligations apply in connection with the Transactions and, if so, whether additional certifications or filings are required.

END OF FORM — TEMPLATE ONLY This document is a blank form template and does not constitute legal advice. All bracketed placeholders must be completed with transaction-specific information prior to execution. Review by qualified tax counsel is required.

FORM OF FIRPTA CERTIFICATE
CERTIFICATION OF NON-FOREIGN STATUS AND NON-U.S. REAL PROPERTY HOLDING CORPORATION STATUS
Pursuant to Treasury Regulation § 1.1445-2(c)(3) and Section 1445 of the Internal Revenue Code of 1986, as Amended
INSTRUCTION: This certificate is a standard form template intended for use in connection with the closing of a merger, acquisition, or other disposition transaction subject to the withholding provisions of Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code"). This form is designed to be delivered at the closing of the transaction pursuant to Treasury Regulation § 1.1445-2(c)(3), which provides that no withholding is required under Section 1445 of the Code if the transferor furnishes to the transferee an affidavit stating, under penalty of perjury, the transferor's United States taxpayer identification number and that the transferor is not a foreign person. This form should be completed and executed by a duly authorized officer of the target entity who has sufficient knowledge of the facts and circumstances necessary to make the certifications contained herein. All bracketed placeholders must be completed with the applicable transaction-specific information prior to execution. This form should not be executed without prior review and approval by qualified tax counsel.
FIRPTA CERTIFICATE
CERTIFICATION OF NON-FOREIGN STATUS AND NON-U.S. REAL PROPERTY HOLDING CORPORATION STATUS
RECITALS AND PURPOSE
This Certificate of Non-Foreign Status and Non-U.S. Real Property Holding Corporation Status (this "Certificate") is made and delivered as of [Insert date of execution — should correspond to the closing date of the transaction] by [Insert full legal name of certifying entity], a [Insert entity type, e.g., corporation, limited liability company] organized under the laws of [Insert jurisdiction of organization] (the "Company").
This Certificate is delivered pursuant to the terms and conditions of that certain [Insert title of transaction agreement, e.g., Agreement and Plan of Merger], dated as of [Insert date of transaction agreement], by and among [Insert names of all parties to the transaction agreement] (as the same may have been amended, restated, supplemented, or otherwise modified from time to time, the "Transaction Agreement"). Capitalized terms used but not otherwise defined in this Certificate shall have the meanings ascribed to such terms in the Transaction Agreement.
This Certificate is provided to [Insert full legal name of acquiror or surviving entity] (the "Acquiror") in accordance with the requirements of Treasury Regulation § 1.1445-2(c)(3), promulgated under Section 1445 of the Code, in order to establish that the Acquiror is not required to withhold tax under Section 1445 of the Code with respect to the transactions contemplated by the Transaction Agreement (the "Transactions"). Section 1445 of the Code generally requires a transferee to withhold tax if the transferor is a foreign person. Treasury Regulation § 1.1445-2(c)(3) provides an exemption from such withholding obligation where the transferor entity furnishes to the transferee an affidavit, signed under penalty of perjury, stating the transferor's name, address, and United States taxpayer identification number, and certifying that the transferor is not a foreign person. The Company delivers this Certificate for the purpose of satisfying such requirements and confirming the Acquiror's entitlement to rely upon the exemption from withholding set forth therein.
SECTION 1 — CERTIFICATION OF NON-FOREIGN STATUS
INSTRUCTION: This Section 1 contains the core certifications required under Treasury Regulation § 1.1445-2(c)(3) to establish that the Company is not a "foreign person" for purposes of Section 1445 of the Code. Each subsection must be completed with the applicable entity-specific information. The authorized officer executing this Certificate should independently verify the accuracy of each certification prior to execution.
The undersigned, in the capacity set forth in Section 4 below, hereby certifies, represents, and warrants to the Acquiror, under penalty of perjury, as follows:
(a) The Company is not a "foreign person" within the meaning of Section 1445(f)(3) of the Code. For purposes of this certification, a "foreign person" means a nonresident alien individual, a foreign corporation that does not have an election in effect under Section 897(i) of the Code, a foreign partnership, a foreign trust, or a foreign estate, as each such term is defined in the Code and the Treasury Regulations promulgated thereunder. The Company is a domestic entity that is not treated as a foreign person under any provision of the Code or the Treasury Regulations.
(b) The Company's United States employer identification number, as assigned by the Internal Revenue Service, is: [Insert U.S. Employer Identification Number (EIN)].
(c) The Company's principal business address is:
[Insert street address] [Insert city, state, and zip code] [Insert country, if applicable]
(d) The Company is a [Insert entity type, e.g., corporation, limited liability company, limited partnership] duly organized, validly existing, and in good standing under the laws of the [Insert state or jurisdiction of organization, e.g., State of Delaware, Commonwealth of Virginia].
(e) The Company is not a disregarded entity for United States federal income tax purposes. The Company is classified as a [Insert applicable federal income tax classification, e.g., corporation, partnership] for United States federal income tax purposes and has not elected to be treated as an entity other than its default classification under Treasury Regulation § 301.7701-3.
INSTRUCTION: If the Company is a disregarded entity, this form may not be appropriate, and the certificate should instead be provided by the regarded owner of the disregarded entity. Consult tax counsel to determine the appropriate certifying party and the form of the certificate.
SECTION 2 — CERTIFICATION REGARDING U.S. REAL PROPERTY HOLDING CORPORATION STATUS
INSTRUCTION: This Section 2 provides certifications that the Company does not constitute a "United States real property holding corporation" as defined in Section 897(c)(2) of the Code. These certifications serve as an additional layer of comfort to the Acquiror, confirming that no interest in the Company constitutes a "United States real property interest" by reason of the Company's status. If the Company cannot truthfully make the certifications set forth in subsection (a) below, this form should not be used; in such event, the parties should consult qualified tax counsel regarding alternative approaches, including the potential application of the withholding requirements under Section 1445 of the Code and the availability of any other exemptions, reduced rates, or withholding certificates from the Internal Revenue Service pursuant to Section 1445(b)(4) or Treasury Regulation § 1.1445-3.
The undersigned further certifies, represents, and warrants to the Acquiror, under penalty of perjury, as follows:
(a) The Company is not, and has not been at any time during the five-year period ending on the date hereof (or, if shorter, the period during which the Company has been in existence), a "United States real property holding corporation" within the meaning of Section 897(c)(2) of the Code. For purposes of this certification, a "United States real property holding corporation" is any corporation if the fair market value of its United States real property interests equals or exceeds fifty percent (50%) of the sum of the fair market value of (i) its United States real property interests, (ii) its interests in real property located outside the United States, and (iii) any other assets which are used or held for use in a trade or business, as determined in accordance with Treasury Regulation § 1.897-2.
(b) No interest in the Company constitutes a "United States real property interest" within the meaning of Section 897(c)(1) of the Code by reason of the Company being a United States real property holding corporation, as described in Section 897(c)(1)(A)(ii) of the Code. Accordingly, the disposition of any interest in the Company in connection with the Transactions does not give rise to gain that is subject to tax under Section 897(a) of the Code by reason of such provision.
INSTRUCTION: If the Company holds, or has held during the relevant five-year lookback period, any United States real property interests (as defined in Section 897(c)(1) of the Code, which generally includes interests in real property located within the United States or the U.S. Virgin Islands, as well as any interest, other than solely as a creditor, in any domestic corporation that is itself a United States real property holding corporation), additional analysis is required to determine whether the Company satisfies the asset-ratio test of Section 897(c)(2). Specifically, tax counsel should determine whether the fair market value of the Company's United States real property interests equals or exceeds 50% of the aggregate fair market value of (i) all of the Company's United States real property interests, (ii) all of the Company's interests in real property located outside the United States, and (iii) all other assets of the Company that are used or held for use in a trade or business. If the Company meets or exceeds this threshold at any time during the applicable lookback period, this Certificate should not be delivered. If the transaction involves a merger or other reorganization, counsel should also consider whether the exemption from gain recognition under Section 897(e) of the Code, or the reorganization provisions of Section 354 or Section 368 of the Code, may apply so as to obviate the need for withholding under Section 1445 of the Code, in which case an alternative form of certificate or other documentation may be appropriate.
SECTION 3 — ACKNOWLEDGMENTS AND RELIANCE
The undersigned, on behalf of the Company, further acknowledges and agrees as follows:
(a) Reliance. This Certificate is made and delivered pursuant to the provisions of Treasury Regulation § 1.1445-2(c)(3) and is intended to and may be relied upon by the Acquiror and its agents, successors, and assigns for the purpose of establishing an exemption from the withholding obligation imposed by Section 1445 of the Code with respect to the Transactions. The Acquiror is entitled to rely on the certifications set forth in this Certificate in determining that no withholding is required under Section 1445 of the Code in connection with the consummation of the Transactions, and the Acquiror shall have no independent obligation to investigate or verify the accuracy of the certifications contained herein, except to the extent that the Acquiror has actual knowledge, or receives notice, that any such certification is untrue.
(b) Disclosure to Internal Revenue Service. The Company acknowledges and understands that this Certificate may be disclosed to the Internal Revenue Service by the Acquiror or by any other party as may be required or permitted by applicable law, regulation, or administrative guidance. The Company further acknowledges and understands that any false statement contained in this Certificate could be punished by fine, imprisonment, or both, under the applicable provisions of the Code and Title 18 of the United States Code (including, without limitation, Section 7206 of the Code and 18 U.S.C. § 1001), and that the undersigned could be subject to civil penalties under the Code for any negligent or intentional disregard of the rules and regulations governing the certifications contained herein.
(c) Notification of Changes. The undersigned, on behalf of the Company, agrees to promptly notify [Insert full legal name of acquiror] in writing if, at any time prior to the closing of the Transactions (including any postponement or adjournment thereof), the undersigned becomes aware that any of the certifications, representations, or warranties set forth in this Certificate are or have become untrue, inaccurate, or misleading in any respect. Such notification shall be provided in accordance with the notice provisions of the Transaction Agreement, or if no such provisions are applicable, by hand delivery or nationally recognized overnight courier to the address of the Acquiror set forth in the Transaction Agreement.
(d) No Other Representations. Except as expressly set forth in this Certificate, the Company makes no representation or warranty of any kind to the Acquiror with respect to the tax treatment of the Transactions, and nothing in this Certificate shall be deemed to expand or modify the representations, warranties, covenants, or obligations of the Company under the Transaction Agreement.
SECTION 4 — AUTHORITY OF SIGNATORY
The undersigned hereby certifies, represents, and warrants that:
(a) The undersigned is a duly authorized officer of the Company, holding the office set forth in the signature block below, and is fully authorized and empowered to execute and deliver this Certificate on behalf of the Company.
(b) The execution and delivery of this Certificate by the undersigned has been duly authorized by all necessary corporate (or equivalent organizational) action on the part of the Company, and no further consent, approval, authorization, or other action by any person or entity is required in connection therewith.
(c) The undersigned has the requisite knowledge of the facts, circumstances, and records of the Company necessary to make the certifications, representations, and warranties contained in this Certificate, and has made such inquiry and investigation as the undersigned has deemed necessary and appropriate to confirm the accuracy of such certifications, representations, and warranties.
(d) The undersigned has reviewed this Certificate with qualified tax counsel and understands the legal significance and consequences of the certifications, representations, and warranties contained herein, including the potential penalties for any false or misleading statements.
EXECUTION
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the date first set forth above.
[INSERT FULL LEGAL NAME OF CERTIFYING ENTITY]
By: ________
Name: [Insert name of authorized officer]
Title: [Insert title of authorized officer, e.g., Chief Executive Officer, Chief Financial Officer, President, General Counsel, or other duly authorized officer]
Date: ________
INSTRUCTION: The date of execution should correspond to the closing date of the Transactions, or such other date as may be specified in the Transaction Agreement as the date on which this Certificate is required to be delivered.
FORMATTING AND DELIVERY NOTES (Internal Instructions — Not Part of Certificate)
The following instructions are provided for the guidance of the parties and their counsel in connection with the preparation, execution, and delivery of this Certificate. These instructions do not form a part of the Certificate itself and should not be included in the executed version of the Certificate delivered at closing.
1. Presentation and Format
This Certificate should be printed on the letterhead of the certifying entity, or alternatively, presented as a standalone executed document. If printed on letterhead, the title block of the Certificate (including the heading "Certification of Non-Foreign Status and Non-U.S. Real Property Holding Corporation Status") should appear prominently on the first page. If presented as a standalone document, the full legal name and organizational details of the certifying entity should be clearly identified in the recitals.
2. Closing Condition Cross-Reference
Delivery of this Certificate is typically a condition to the closing of the Transactions as set forth in the Transaction Agreement. Prior to execution, counsel for the Acquiror and counsel for the Company should confirm that the applicable closing condition in the Transaction Agreement correctly cross-references this Certificate, including the specific section of the Transaction Agreement pursuant to which delivery is required (e.g., Section [__] of the Transaction Agreement). Any discrepancy between the closing condition and the form of this Certificate should be resolved prior to execution.
3. Retention of Original
A copy of the fully executed Certificate should be retained in the closing binder maintained by the parties and their respective counsel. The Acquiror must retain the original executed Certificate in its files and records pursuant to Treasury Regulation § 1.1445-2(c)(3)(ii), which requires the transferee to retain the affidavit until the end of the fifth calendar year following the calendar year in which the transfer takes place. The Acquiror should ensure that its document retention policies comply with this requirement.
4. Review by Tax Counsel
This Certificate should be reviewed by qualified tax counsel (both for the Company and for the Acquiror) prior to execution to confirm that: (i) the factual representations and certifications contained herein are accurate and complete in all material respects; (ii) the form of the Certificate complies with the requirements of Treasury Regulation § 1.1445-2(c)(3) and all other applicable Treasury Regulations; (iii) the use of this form is appropriate in light of the specific facts and circumstances of the Transactions; and (iv) no additional certifications, representations, or disclosures are required under applicable law or regulation.
5. Mergers, Reorganizations, and Other Special Transactions
If the Transactions involve a merger, consolidation, share exchange, or other form of reorganization, counsel should confirm that this Certificate is appropriately tailored to the specific structure of the Transactions. In particular, counsel should consider: (i) whether Section 897(a) of the Code applies to the disposition of interests in the Company in connection with the Transactions; (ii) whether the exemption from gain recognition under Section 897(e) of the Code is available (which generally provides that gain shall not be recognized on the transfer of a United States real property interest to a foreign corporation in an exchange described in Section 332, 351, 354, 355, 356, or 361 of the Code, subject to certain conditions and limitations); and (iii) whether the reorganization provisions of Sections 354, 355, 356, 361, or 368 of the Code otherwise obviate the need for withholding under Section 1445, in which case an alternative form of certificate or other documentation (such as a notice of nonrecognition pursuant to Treasury Regulation § 1.1445-2(d)) may be more appropriate.
6. U.S. Real Property Interests — Asset-Ratio Test Analysis
If the certifying entity holds, or has held at any time during the applicable five-year lookback period (or shorter period of existence), any United States real property interests (as defined in Section 897(c)(1) of the Code), a detailed analysis must be conducted prior to execution of this Certificate to determine whether the certifying entity qualifies, or has qualified, as a "United States real property holding corporation" under the asset-ratio test of Section 897(c)(2) of the Code. This test requires a determination of whether the fair market value of the certifying entity's United States real property interests equals or exceeds fifty percent (50%) of the sum of the fair market values of:
(i) all of the certifying entity's United States real property interests;
(ii) all of the certifying entity's interests in real property located outside the United States; and
(iii) all other assets of the certifying entity that are used or held for use in a trade or business.
This determination must be made on each "determination date" during the lookback period, as prescribed by Treasury Regulation § 1.897-2(c). If the certifying entity meets or exceeds the fifty percent (50%) threshold on any determination date during the applicable period, the certifications in Section 2 of this Certificate cannot be made, and this form should not be used. In such event, the parties should consult with tax counsel regarding the withholding obligations of the Acquiror under Section 1445 of the Code and the potential availability of a withholding certificate from the Internal Revenue Service under Section 1445(b)(4) and Treasury Regulation § 1.1445-3, or such other exemptions or reduced rates as may be applicable.
7. State and Local Withholding
This Certificate addresses only the federal withholding requirements of Section 1445 of the Code. The parties and their counsel should independently confirm whether any state or local withholding or reporting obligations apply in connection with the Transactions and, if so, whether additional certifications or filings are required.
END OF FORM — TEMPLATE ONLY This document is a blank form template and does not constitute legal advice. All bracketed placeholders must be completed with transaction-specific information prior to execution. Review by qualified tax counsel is required.

FORM OF FIRPTA CERTIFICATE

FIRPTA CERTIFICATE

RECITALS AND PURPOSE

EXECUTION

Record

Parties

Dates

Amounts