Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.
Appears in 10 contracts
Samples: Loan and Security Agreement (Strategic Hotels & Resorts, Inc), Loan and Security Agreement (Strategic Hotels & Resorts, Inc), Loan and Security Agreement (Strategic Hotels & Resorts, Inc)
Contest. Nothing contained herein (a) If an Indemnitee receives a written claim for any Tax for which Lessee would be required to pay an indemnity pursuant to Clause 5.7 or Clause 5.8, such Indemnitee shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereofnotify Lessee promptly of such claim, provided that any failure to provide such notice will not relieve Lessee of any indemnification obligation pursuant to Clause 5.7 or Clause 5.8. If requested by Lessee in each casewriting promptly after receipt of such Indemnitee's notice, such Indemnitee shall, upon receipt of indemnity satisfactory to it and at the time expense of the commencement of any such action or proceedingLessee (including, without limitation, all costs, expenses, legal and accountants' fees and disbursements, and during penalties, interest and additions to tax incurred in contesting such claim) in good faith contest or (if permitted by applicable Law in the pendency case of Taxes other than those payable pursuant to Clauses 5.7(b) and (c)) permit Lessee to contest such action or proceeding claim by (i) no Event of Default shall exist resisting payment thereof if practicable and be continuing hereunderappropriate, (ii) Borrower shall keep Lender informed of not paying the status of such contest at reasonable intervalssame except under protest if protest is necessary and proper, or (iii) if neither Borrower nor Operating payment is made, using reasonable efforts to obtain a refund of such Taxes in appropriate administrative and judicial proceedings. Such Indemnitee shall determine the method of any contest conducted by such Indemnitee and (in good faith consultation with Lessee) control the conduct thereof. Lessee shall determine the method of any contest conducted by Lessee and (in good faith consultation with such Indemnitee) control the conduct thereof. Lessee shall pay in full all payments of Rent and other amounts payable pursuant to the Operative Documents to which Lessee is providing security as provided in clause (vi) belowa party, adequate reserves with respect thereto are maintained without reduction for or on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Accountaccount of any Tax, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and while such contest is maintained and prosecuted continuously and with diligence continuing. Such Indemnitee shall not be required to contest, or the Imposition or Lien is bondedto continue to contest, a claim for Taxes under this Clause 5.12 if (vw) in the case of any Insurance RequirementTaxes payable pursuant to Clauses 5.7(b) or (c), the failure amount in dispute is less than $*, or (x) such contest would result in a risk of Borrower to comply therewith criminal penalties or of a sale, forfeiture or loss of, or the imposition of a Lien (other than a Permitted Lien) on, the Aircraft, or (y) Lessee shall not impair the validity have furnished an opinion of any insurance required independent tax counsel selected by such Indemnitee and reasonably satisfactory to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunderLessee, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during that a reasonable basis exists for such contest, Borroweror (z) a Default or an Event of Default shall be continuing (unless Lessee shall have provided security reasonably satisfactory to such Indemnitee securing Lessee's performance of its obligations under this Clause 5). If such Indemnitee contests any claim for Taxes by making a payment and seeking a refund thereof, then Lessee shall deposit with or deliver advance to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in such Indemnitee, on an interest-free basis, an amount equal to 125% the Taxes to be paid by such Indemnitee in connection with the contest and shall indemnify such Indemnitee on an After-Tax Basis for any adverse tax consequences to such Indemnitee of (A) such interest-free advance. Upon the final determination of any contest pursuant to this Clause 5.12 in respect of any Taxes for which Lessee shall have made an advance to such Indemnitee in accordance with the immediately preceding sentence, the amount of Borrower’s obligations being contested plus Lessee's obligation shall be determined as if such advance had not been made; any indemnity obligation of Lessee to such Indemnitee under this Clause 5 and such Indemnitee's obligation to repay the advance will be satisfied first by setoff against each other, and any difference owing by either party shall be paid within ten days after such final determination.
(Bb) If an Indemnitee obtains a refund of all or any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation part of any Taxes for which a full indemnity was paid by Lessee, such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or Indemnitee shall pay Lessee the amount of such refund, reduced by any contested Imposition Taxes imposed on such Indemnitee on receipt or Lienaccrual of such refund and increased by any Taxes saved by such Indemnitee by reason of the deductibility of such payment by such Indemnitee. If, in addition to such refund, such Indemnitee receives an amount of interest on such refund, such Indemnitee shall pay to Lessee the portion of such interest which is fairly attributable to such refund, reduced by any Taxes imposed on such Indemnitee on receipt or accrual of such interest and compliance therewith or increased by any Taxes saved by reason of the deductibility of such payment thereof by such Indemnitee. Such Indemnitee shall not be deferred, required to make any payment to Lessee pursuant to this Clause 5.12 if, at and for so long as, an Event of Default shall have occurred and be continuing.
(c) Any Indemnitee in its sole discretion (by written notice to Lessee) may waive its rights to indemnification pursuant to Clause 5.7 with respect to any time claim for any Tax and may refrain from contesting or continuing the Property or any portion thereof shall becontest of such claim, in Lender’s reasonable judgment, in imminent danger which event Lessee shall have no obligation to indemnify such Indemnitee for the Taxes that are the subject of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereofsuch claim. If an Indemnitee agrees to a settlement of any contest conducted pursuant to this Clause 5.11 without the prior written consent of Lessee, which consent shall not be unreasonably withheld, then Lessor shall be deemed to have waived its rights to the indemnification provided for in Clause 5.7 with respect to the Tax liability accepted in such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may besettlement.
Appears in 4 contracts
Samples: Aircraft Lease Agreement (Frontier Airlines Inc /Co/), Aircraft Lease Agreement (Frontier Airlines Inc /Co/), Aircraft Lease Agreement (Frontier Airlines Inc /Co/)
Contest. Nothing contained herein shall be deemed to require Mezzanine Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Mezzanine Borrower is (or has caused Mortgage Borrower to be) in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Mezzanine Borrower shall keep Mezzanine Lender informed of the status of such contest at reasonable intervals, (iii) if neither Mezzanine Borrower nor Operating Lessee is not providing (or has not caused Mortgage Borrower to provide) security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Mezzanine Borrower’s (or Mortgage Borrower’s as applicable) books in accordance with GAAP or (or, in the case of Mortgage Borrower, such reserves are maintained in the Tax Reserve Account or Insurance Reserve Account, as applicable, or in the Proceeds Reserve Account pursuant to Article VI of the Loan Agreement (Mortgage), as applicable), (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 this Agreement or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of Two Million Dollars ($1,000,000 2,000,000) individually, or Ten Million Dollars ($10,000,000) in the aggregate, during such contest, Borrower, Mezzanine Borrower shall (or shall cause Mortgage Borrower to) deposit with or deliver to Mezzanine Lender (or, if required under the Loan Agreement (Mortgage), Mortgage Lender) either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125110% of (A) the amount of Borrower’s the obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Mezzanine Borrower shall (or shall cause Mortgage Borrower to) promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property Property, the Collateral, or any portion thereof shall be, in Mezzanine Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Mezzanine Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Mezzanine Borrower or Mortgage Borrower, as applicable (a) provided no Event of Default has occurred and is continuing hereunder, Mezzanine Lender shall (or, as applicable, Mortgage Lender may) disburse to the Person entitled to such sums, the security provided therefore under this Section 7.3 and (b) Mezzanine Borrower shall deliver to Mezzanine Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be. Notwithstanding the foregoing, any contest conducted by the Master Lessee in accordance with the Master Lease will be deemed to satisfy the requirements of this Section 7.3 provided that any security deposited by Master Lessee pursuant to the provisions of the Master Lease in connection with such contest is delivered to Mezzanine Lender (or, if required under the Loan Agreement (Mortgage), the Mortgage Lender).
Appears in 4 contracts
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc), Mezzanine Loan and Security Agreement (Station Casinos Inc), Mezzanine Loan and Security Agreement (Station Casinos Inc)
Contest. Nothing contained herein Lessee shall be deemed entitled, at its sole cost and expense, acting through counsel acceptable to require Borrower the respective Indemnitee, (a) in any judicial or administrative proceeding that involves solely a claim for one or more Claims, to payassume responsibility for and control thereof, (b) in any judicial or cause administrative proceeding involving a claim for one or more Claims and other claims related or unrelated to the transactions contemplated by this Lease, to assume responsibility for and control of such Claim or Claims to the extent that the same may be and are severed from such other claims (and each of Lessee and such Indemnitee shall use its commercially reasonable efforts to obtain such severance), and (c) in any other case, to be paid, consulted by such Indemnitee with respect to judicial proceedings subject to the control of such Indemnitee. Notwithstanding any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement foregoing to the contrary, Lessee shall not be entitled to assume responsibility for and control of any such action judicial or proceeding, and during the pendency of such action or proceeding administrative proceedings (i) no while a Default or an Event of Default shall exist have occurred and be continuing hereundercontinuing, (ii) Borrower shall keep Lender informed if such proceedings will involve any reasonable possibility of the status sale, forfeiture or loss of, or the creation of such contest at reasonable intervalsany Lien (other than a Lessor’s Lien) on, the Aircraft, any Item of Equipment, this Lease, any other Operative Documents, or any part of the foregoing, (iii) if neither Borrower nor Operating Lessee is providing security as provided such Claims relate in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP any way to the business of any Indemnitee other than the transactions contemplated by this Lease or in any of the Tax Reserve Account or Insurance Reserve Account, as applicableother Operative Documents, (iv) either if such contest operates Claims, in the opinion of independent counsel for such Indemnitee reasonably satisfactory to suspend collection Lessee, have a reasonable possibility of otherwise compromising or enforcement as the case may bejeopardizing any substantial interests of such Indemnitee, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) if Lessee shall not have furnished such Indemnitee with an opinion of independent counsel reasonably satisfactory to such Indemnitee to the effect that there exists a meritorious basis for contesting such Claims. The Indemnitee may participate with its own counsel, at its own expense, in any judicial proceeding controlled by Lessee pursuant to the case preceding provisions. Lessee shall not without the prior written consent of the relevant Indemnitee enter into a settlement or other compromise with respect to any Claims that may result in admission or culpability on the part of any Insurance RequirementIndemnitee, otherwise subject any Indemnitee to any civil or criminal penalty or other prejudice any Indemnitee or the failure of Borrower to comply therewith Aircraft. If for any reason Lessee shall not impair the validity be responsible for and be in control of any insurance required to contest contemplated in this Section 18.7, Lessee may, so long as no Default or Event of Default shall have occurred and be maintained by Borrower under Section 6.1 or the right to full payment of continuing, nonetheless participate in any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrowerat its sole cost and expense, in a manner reasonably acceptable to the relevant Indemnitee. The Indemnitee shall deposit supply Lessee with such information reasonably requested by Lessee (and to the extent that it is commercially reasonable for the Indemnitee to do so) as is necessary or deliver advisable for Lessee to Lender either Cash assume responsibility for and Cash Equivalents control or participate in any proceeding to the extent permitted by this Section 18.7. As long as no Default or Event of Default has occurred and is continuing, such Indemnitee shall not enter into a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond settlement or other securitycompromise with respect to any Claims without the prior written consent of Lessee, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof which consent shall not be deferredunreasonably withheld, unless such Indemnitee waives its right to be indemnified with respect to such Claims under this Section 18.7. Notwithstanding this Section 18.7, no Indemnitee shall be prevented from settling or paying any Claim immediately if required by Law to do so nor from assuming control of and terminating Lessee’s participation in any contest of a Claim if, at any time the Property or any portion thereof shall be, in Lendersuch Indemnitee’s reasonable judgment, in imminent danger the interest of being forfeited any Indemnitee may be adversely affected or lost prejudiced by any delay, act, omission or Lender is likely to be subject to civil or criminal damages as a result thereof. If continued contest by Lessee of such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may beClaim.
Appears in 3 contracts
Samples: Aircraft Lease Agreement (Controladora Vuela Compania De Aviacion, S.A.B. De C.V.), Aircraft Lease Agreement (Controladora Vuela Compania De Aviacion, S.A.B. De C.V.), Aircraft Lease Agreement (Controladora Vuela Compania De Aviacion, S.A.B. De C.V.)
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is not providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individuallyan amount equal to five percent (5%) of the Allocated Loan Amount of the applicable Individual Property, or Two Million Dollars ($2,000,000) in the aggregate, during such contest, BorrowerBorrower (or in the case of the Maryland Property, Maryland Loan Guarantor), shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter of Credit or Letters of Credit in an amount equal to one hundred twenty-five percent (125% %) of (A) the amount of Borrower’s (or in the case of the Maryland Property, Maryland Loan Guarantor’s) obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower and Maryland Loan Guarantor promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to BorrowerBorrower (or in the case of the Maryland Property, Maryland Loan Guarantor), Borrower or Maryland Loan Guarantor, as applicable, shall deliver to Lender reasonable evidence of Borrower’s its compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.
Appears in 2 contracts
Samples: Loan and Security Agreement (BlueLinx Holdings Inc.), Loan and Security Agreement (BlueLinx Holdings Inc.)
Contest. Nothing contained herein Lessee shall be deemed entitled, at its sole cost and expense, acting through counsel acceptable to require Borrower the respective Indemnitee, (a) in any judicial or administrative proceeding that involves solely a claim for one or more Claims, to payassume responsibility for and control thereof, (b) in any judicial or cause administrative proceeding involving a claim for one or more Claims and other claims related or unrelated to the transactions contemplated by this Lease, to assume responsibility for and control of such Claim or Claims to the extent that the same may be and are severed from such other claims (and each of Lessee and such Indemnitee shall use its commercially reasonable efforts to obtain such severance), and (c) in any other case, to be paid, consulted by such Indemnitee with respect to judicial proceedings subject to the control of such Indemnitee. Notwithstanding any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement foregoing to the contrary, Lessee shall not be entitled to assume responsibility for and control of any such action judicial or proceeding, and during the pendency of such action or proceeding administrative proceedings (i) no while a Default or an Event of Default shall exist have occurred and be continuing hereundercontinuing, (ii) Borrower shall keep Lender informed if such proceedings will involve any reasonable possibility of the status sale, forfeiture or loss of, or the creation of such contest at reasonable intervalsany Lien (other than a Lessor’s Lien) on, the Aircraft, any Item of Equipment, this Lease, any other Operative Documents, or any part of the foregoing, (iii) if neither Borrower nor Operating Lessee is providing security as provided such Claims relate in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP any way to the business of any Indemnitee other than the transactions contemplated by this Lease or in any of the Tax Reserve Account or Insurance Reserve Account, as applicableother Operative Documents, (iv) either if such contest operates Claims, in the opinion of independent counsel for such Indemnitee reasonably satisfactory to suspend collection Lessee, have a reasonable possibility of otherwise compromising or enforcement as the case may bejeopardizing any substantial interests of such Indemnitee, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) if Lessee shall not have furnished such Indemnitee with an opinion of independent counsel reasonably satisfactory to such Indemnitee to the effect that there exists a meritorious basis for contesting such Claims. The Indemnitee may participate with its own counsel, at its own expense, in any judicial proceeding controlled by Lessee pursuant to the case preceding provisions. Lessee shall not without the prior written consent of the relevant Indemnitee enter into a settlement or other compromise with respect to any Claims that may result in admission or culpability on the part of any Insurance RequirementIndemnitee, the failure of Borrower otherwise subject any Indemnitee to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 civil or criminal penalty or other prejudice any Indemnitee or the right to full payment of Aircraft. If for any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof reason Lessee shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.responsible
Appears in 2 contracts
Samples: Aircraft Lease Agreement (Controladora Vuela Compania De Aviacion, S.A.B. De C.V.), Aircraft Lease Agreement (Controladora Vuela Compania De Aviacion, S.A.B. De C.V.)
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is not providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, or in the Proceeds Reserve Account pursuant to Article VI, as applicable (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of Two Million Dollars ($1,000,000 2,000,000) individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125110% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, (a) provided no Event of Default has occurred and is continuing hereunder, Lender shall disburse to Borrower or the Person entitled to such sums, the security provided therefor under this Section 7.3 and (b) Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be. Notwithstanding the foregoing, any contest conducted by the Master Lessee in accordance with the Master Lease will be deemed to satisfy the requirements of this Section 7.3 provided that any security deposited by Master Lessee pursuant to the provisions of the Master Lease in connection with such contest is delivered to Lender.
Appears in 2 contracts
Samples: Loan and Security Agreement (Toys R Us Inc), Loan and Security Agreement (Toys R Us Inc)
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender Administrative Agent informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bondedfully bonded to the reasonable satisfaction of Administrative Agent, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 500,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Administrative Agent, Cash and Cash Equivalents or a Letter letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest, or, if the obligations being contested are less than $500,000, shall deliver a guaranty of the payment of such amounts from the Guarantor in a form reasonably satisfactory to Lender. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in LenderAdministrative Agent’s reasonable judgment, in imminent danger of being forfeited or lost or Lender Administrative Agent is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender Administrative Agent reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.
Appears in 2 contracts
Samples: Loan and Security Agreement (Strategic Hotels & Resorts, Inc), Loan and Security Agreement (Strategic Hotels & Resorts, Inc)
Contest. Nothing contained herein (i) If a party is responsible for the payment of Taxes pursuant to this Agreement (including indemnification under Section 4.19) (the “Tax Indemnifying Party”) and the other party to this Agreement (the “Tax Indemnified Party”) receives notice of any deficiency, proposed adjustment, assessment, audit, examination, suit, dispute or other claim (a “Tax Claim”) with respect to such Taxes, the Tax Indemnified Party will promptly notify the Tax Indemnifying Party in writing of such Tax Claim, but the failure to so notify the Tax Indemnifying Party will not relieve the Tax Indemnifying Party of any liability it may have to the Tax Indemnified Party, except to the extent the Tax Indemnifying Party has suffered actual prejudice thereby.
(ii) With respect to any Tax Claim, the Tax Indemnifying Party will assume and control all proceedings taken in connection with such Tax Claim and, without limiting the foregoing, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any applicable governmental Persons with respect thereto, and may either pay the Tax claimed and xxx for a refund where applicable law permits such refund suits or contest the Tax Claim in any permissible manner; provided, however, that the Tax Indemnifying Party will consult with the Tax Indemnified Party in the negotiation and settlement of any Tax Claim and the Tax Indemnifying Party will not, without the written consent of the Tax Indemnified Party, which consent shall not be deemed unreasonably withheld, settle or compromise any Tax Claim in any manner if such settlement or compromise would have the effect of increasing the Taxes of the Tax Indemnified Party (“Indemnified Party Tax Increase”); provided, however, that the consent of the Tax Indemnified Party will not be required if the Tax Indemnifying Party indemnifies the Tax Indemnified Party for all Losses attributable to require Borrower such Indemnified Party Tax Increase; provided, further, that, to paythe extent that a Tax Claim relates to the Straddle Period, Seller and Buyer will jointly control all proceedings taken in connection with any such Tax Claim.
(iii) The Tax Indemnified Party will cooperate with the Tax Indemnifying Party in contesting any Tax Claim, which cooperation will include the retention and (upon the Tax Indemnifying Party’s request) the provision to the Tax Indemnifying Party of records and information which are reasonably relevant to such Tax Claim, and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder or to testify at proceedings relating to such Tax Claim.
(iv) Neither party will settle or compromise a Tax Claim relating solely to Taxes of the Company or a Subsidiary for a Straddle Period without the other party’s written consent which consent shall not be unreasonably withheld.
(v) Neither Buyer nor any Affiliate of Buyer, shall amend, refile or otherwise modify, or cause or permit the Company or any Subsidiary to be paidamend, refile or otherwise modify, any Imposition Tax election or Tax Return with respect to satisfy any Lientaxable period (or portion of any taxable period), ending on or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting before the validity, amount or application thereof, provided that in each case, at the time date of the commencement Closing without the prior written consent of any such action or proceedingSeller, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall will not be deferredunreasonably withheld, if, at any time the Property unless otherwise required by law or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may beregulation.
Appears in 2 contracts
Samples: Purchase Agreement (Cdi Corp), Purchase Agreement (Spherion Corp)
Contest. Nothing contained herein Tenant shall be deemed have the right to require Borrower to paycontest the amount or validity, in whole or cause to be paidin part, of any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is by appropriate proceedings diligently conducted in good faith, but only after payment of such Imposition, unless such payment would operate as a bar to such contest, in which event, notwithstanding the provisions of Section 3.01 hereof, payment of such Imposition shall be postponed if and only as long as:
(a) neither the Premises nor any part thereof would, by proper legal reason of such postponement or deferment, be, in the reasonable judgment of Landlord, in danger of being forfeited, lost or adversely affected;
(b) such contest shall not subject Landlord or any Mortgagee (as hereinafter defined) to the risk of any criminal or civil liability;
(c) such contest shall not cause Landlord to be in default under any Mortgage (as hereinafter defined);
(d) such contest shall not, in the reasonable judgment of Landlord, result in any Imposition being increased; and
(e) Tenant shall have deposited with, at Landlord's option, either Landlord or a Depositary (as hereinafter defined), simultaneously with such contest, cash or other security determined by Landlord in the amount so contested and unpaid, together with all interest and penalties in connection therewith and all charges that may be assessed against or become a charge on the Premises or any part thereof in such proceedings. Upon the termination of such proceedings, where appropriateit shall be the obligation of Tenant to pay the amount of such Imposition or part thereof as finally determined in such proceedings, diligently contesting the validitypayment of which may have been deferred during the prosecution of such proceedings, amount together with any costs, fees (including attorneys' fees and disbursements), interest, penalties or application thereof, provided that other liabilities in each case, at the time of the commencement of any such action or proceedingconnection therewith, and during the pendency of upon such action payment, Landlord or proceeding (i) no Event of Default shall exist and be continuing hereunderDepositary, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Impositionshall return, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement interest accrued thereon, any amount deposited with it in respect of such Imposition as aforesaid, provided, however, that Landlord or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance RequirementsDepositary, as the case may be, if requested by Tenant, shall disburse said moneys on deposit with it directly to the imposing authority to whom such Imposition is payable. If, at any time during the continuance of such proceedings, Landlord shall reasonably deem the amount deposited as aforesaid insufficient, Tenant, upon demand, shall make an additional deposit of such additional sums or other acceptable security as Landlord may request, and upon failure of Tenant to do so, the amount theretofore deposited may, at the option of Landlord, be applied by Landlord or Depositary, as the case may be, to the payment, removal and discharge of such Imposition and the interest and penalties in connection therewith and any costs, fees (including attorneys' fees and disbursements) or other liability accruing in any such proceedings, and the balance, if any, shall be returned to Tenant or the deficiency, if any, shall be paid by Tenant on demand.
Appears in 2 contracts
Samples: Lease (Autocam International LTD), Lease Agreement (Autocam International LTD)
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is not providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, or in the Proceeds Reserve Account pursuant to Article VI, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of Two Million Dollars ($1,000,000 2,000,000) individually, or Ten Million Dollars ($10,000,000) in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125110% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, (a) provided no Event of Default has occurred and is continuing hereunder, Lender shall disburse to Borrower or the Person entitled to such sums, the security provided therefor under this Section 7.3 and (b) Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be. Notwithstanding the foregoing, any contest conducted by the Master Lessee in accordance with the Master Lease will be deemed to satisfy the requirements of this Section 7.3 provided that any security deposited by Master Lessee pursuant to the provisions of the Master Lease in connection with such contest is delivered to Lender.
Appears in 2 contracts
Samples: Loan and Security Agreement (Station Casinos Inc), Loan and Security Agreement (Station Casinos Inc)
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each casecase of a contest by Borrower (as opposed to the Citibank Tenant under the Citibank Lease), at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither the provisions of subclause (z) of clause (iv) below is not applicable and Borrower nor Operating Lessee is not providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s 's books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicableGAAP, (iv) either (x) such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or diligence, (y) the Imposition or Lien is paid under protest, bonded, or discharged or (z) the Property or any portion thereof shall not be, in Lender's reasonable judgment, in imminent danger of being forfeited or lost and Lender shall not be likely to be subject to civil damages (unless Lender is sufficiently indemnified) or criminal damages as a result thereof, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, thereunder and (vi) in the case of Impositions and Liens which are not paid under protest, bonded or discharged and which are in excess of $1,000,000 1,500,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s 's obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s 's reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil damages (unless Lender is sufficiently indemnified) or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s 's compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be. Notwithstanding anything to the contrary contained herein, in the event that (and for so long as) the Citibank Tenant is contesting any Imposition, Lien, Legal Requirements or Insurance Requirements in accordance with and as permitted by the terms of the Citibank Lease (which Imposition, Lien, Legal Requirements or Insurance Requirements the Citibank Tenant is obligated to pay, remove or comply with in accordance with the terms of the Citibank Lease), then the Citibank Tenant's failure to so pay, remove or comply with such Imposition, Lien, Legal Requirements or Insurance Requirements shall be permitted hereunder and the failure to pay, remove or comply with such Imposition, Lien, Legal Requirement or Insurance Requirement shall not constitute a Default hereunder.
Appears in 2 contracts
Samples: Loan and Security Agreement (Reckson Associates Realty Corp), Loan and Security Agreement (Reckson Operating Partnership Lp)
Contest. Nothing contained herein If the Company notifies the Executive in writing, within sixty (60) business days following receipt from the Executive of notification of the IRS claim, that it desires to contest such claim, the Executive shall:
(i.) Give the Company any information reasonably requested by the Company relating to such claim;
(ii.) Take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company and reasonably acceptable to the Executive;
(iii.) Cooperate with the Company in good faith in order to effectively contest such claim; and
(iv.) Permit the Company to participate in any proceedings relating to such claim if the Company elects not to assume and control the defense of such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold harmless the Executive, on an after-tax basis, for any Excise Tax and Income Taxes (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10, the Company shall have the right, at its sole option, to assume the control of all proceedings in connection with such contest, in which case it may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with the taxing authority in respect of such claim, and may direct the Executive to xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; and provided further, however, that (A) if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties) imposed with respect to such advance or with respect to any imputed income in connection with such advance and (B) any extension of the statute of limitations relating to payment of tax for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s rights to assume the control of the contest shall be deemed limited to require Borrower issues with respect to pay, or cause to which an Excise Tax Adjustment Payment would be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faithpayable hereunder, and by proper legal proceedingsthe Executive shall be entitled to settle or contest, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, any other issue raised by the IRS or any other taxing authority. To the extent that the contest of the contested Imposition, Lien or Legal Requirement and such contest IRS claim is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirementsuccessful, the failure Excise Tax Adjustment Payment related to the element of Borrower to comply therewith compensation and/or benefit that was the subject of the claim shall not impair be recalculated in accordance with the validity provisions of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be10(a).
Appears in 2 contracts
Samples: Employment Agreement (Brunswick Corp), Employment Agreement (Brunswick Corp)
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is not providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s 's books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s 's obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s 's reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s 's compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.
Appears in 2 contracts
Samples: Loan and Security Agreement (CNL Hotels & Resorts, Inc.), Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is not providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 500,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.
Appears in 2 contracts
Samples: Loan and Security Agreement (Digital Realty Trust, Inc.), Loan and Security Agreement (American Financial Realty Trust)
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or Other Charge or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower at its own expense is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding proceeding:
(i) no Default or Event of Default shall exist and be continuing hereunder, ,
(ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, ,
(iii) with respect to any Ground Lease, Borrower is permitted to do so under the provisions of any mortgage or deed of trust superior in lien to the applicable Security Instrument;
(iv) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable statutes, laws and ordinances;
(v) Borrower shall promptly upon final determination thereof pay the amount of any such Impositions or Other Charges, together with all costs, interest and penalties which may be payable in connection therewith;
(vi) if neither Borrower nor Operating Lessee is not providing security as provided in clause (vivii) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, ,
(ivvii) either (x) such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or (y) the Imposition or Lien is bonded, ,
(vviii) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and and
(viix) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 500,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the any Individual Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being sold, terminated, cancelled, forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be. Lender may pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the judgment of Lender, any Individual Property (or part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost or there shall be any danger of the Lien of any Security Agreement being primed by any related Lien.
Appears in 2 contracts
Samples: Loan and Security Agreement (KBS Real Estate Investment Trust, Inc.), Loan and Security Agreement (American Financial Realty Trust)
Contest. Nothing contained herein If a written claim is made against an Indemnified Person for any Taxes with respect to which Lessee may be liable for payment or indemnity hereunder, such Indemnified Person shall be deemed give Lessee notice in writing of such claim within 30 days after its receipt, but the failure to require Borrower to paygive such notice shall not diminish Lessee's obligation hereunder. If Lessee shall so request in writing within 30 days after receipt of such notice, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is such Indemnified Person shall in good faith, at Lessee's sole cost and by proper legal proceedingsexpense, where appropriatecontest the imposition, diligently contesting the validity, applicability or amount of such Tax (including taking appeals of any adverse judicial decisions except that an Indemnified Person shall not be obligated to take any appeal to the Supreme Court of the United States) or application thereofshall permit or at such Indemnified Person's election, require Lessee to contest in either the name of Lessee or in the name of the Indemnified Person. After considering any views offered by Lessee and Lessee's counsel concerning the forum in which the claim is most likely to be resolved favorably, such Indemnified Person shall, in its sole discretion, select the forum for such contest and determine whether any such contest shall be conducted by (A) resisting payment of such Tax, (B) paying such Tax under protest, or (C) paying such Tax and seeking a refund or other repayment thereof in appropriate administrative or judicial proceedings, provided that at such Indemnified Person's option, such contest shall be conducted by Lessee in each case, at the time of the commencement of any such action or proceeding, and during the pendency name of such action Indemnified Person. The relevant Indemnified Person or proceeding (i) no Event of Default shall exist and be continuing hereunderLessee, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, shall supply the other party with such information in its possession that is requested by the other party and that is related solely to such claim as is necessary or advisable for the other party to control or participate in any proceeding to the extent provided by this Section 7.02. In the case of any contest that an Indemnified Person is required to contest, such Indemnified Person may direct that Lessee control the contested Impositionconduct of such contest. Notwithstanding the foregoing provisions of this Section 7.02, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of a claim for any Insurance RequirementTaxes, the failure of Borrower to comply therewith such Indemnified Person shall not impair the validity of any insurance be required to take any administrative or judicial action and Lessee shall not be maintained by Borrower under Section 6.1 able to contest such claim in its own name or that of the right Indemnified Person unless:
(a) Lessee shall have agreed to full payment of any claims thereunderpay, and shall pay, on an After-Tax Basis, such Indemnified Person on demand all reasonable out-of-pocket costs, losses and expenses which such Indemnified Person may incur in connection with contesting such Taxes, including, without limitation, all reasonable legal, accountants and investigatory fees and disbursements;
(vib) if a Material Default shall have occurred and be continuing, Lessee shall have provided security for its obligations under this Section 7.02 reasonably satisfactory to such Indemnified Person;
(c) such Indemnified Person shall have determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Equipment or any risk of criminal penalties;
(d) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in event the aggregate, during such Indemnified Person decides to pay the Tax prior to the contest, BorrowerLessee shall, shall deposit at its option, either (A) pay or reimburse the Indemnified Person for such Taxes (plus any additional amounts calculated in accordance with this Section 7.02) or deliver (B) provide to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit the Indemnified Person an interest-free, advance in an amount equal to 125% the Tax which the Indemnified Person is required to pay (and indemnify such Indemnified Person against any adverse tax consequences arising from such advance);
(e) Lessee shall have delivered to the Indemnified Person a written binding agreement and acknowledgement in a form reasonably satisfactory to such Indemnified Person of (A) Lessee's liability under this Article VII for such Taxes to the extent such contest is not successful and (B) the inapplicability of any defenses and exclusions thereto (provided, however, that Lessee will not be bound by its acknowledgement of liability if the contest is resolved with a written judicial decision on a basis that clearly demonstrates that Lessee has no liability under this Article VII with respect to such Tax);
(f) Lessee has provided to such Indemnified Person an opinion of independent tax counsel mutually acceptable to Lessee and the Indemnified Person, at the sole cost of Lessee, that a Reasonable Basis exists to contest such claim (and, in the case of an appeal of an adverse judicial decision, to appeal such decision); and
(g) the amount of Borrower’s the indemnity payable hereunder (which shall include prospective exposure in future tax years attributable to the position being challenged) shall exceed $100,000. The parties further agree that an Indemnified Person may at any time decline to contest, or to take further action with respect to the contest of, or to permit Lessee to contest, any claim for a Tax for a given taxable period, provided, however, that if Lessee has properly requested such contest pursuant to this Section 7.02 and otherwise meets its obligations being contested plus hereunder, such 45 Indemnified Person (A) shall waive its. rights to any indemnity payment by Lessee which would otherwise be payable by Lessee pursuant to this Article VII in respect of such claim for such taxable period, and (B) shall pay to Lessee any additional interestamount previously paid or advanced by Lessee pursuant to clause (d) of this paragraph with respect to such claim for such Tax or the contest of such Tax. Notwithstanding anything to the contrary contained in this Section, chargethe Indemnified Person shall not be required to contest any proposed claim for Taxes if the subject matter thereof shall be of a continuing nature and shall have been previously decided by a court of competent jurisdiction pursuant to the contest provisions of this Section 7.02 unless there shall have been a change in law (or interpretation thereof) after the date with respect to which such previous contest shall have been decided, and the Indemnified Person shall have received, at Lessee's expense, an opinion of independent tax counsel mutually acceptable to Lessee and such Indemnified Person that, as a result of the change in law (or penalty arising from interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest. Notwithstanding the foregoingIf an Indemnified Person shall fail to perform its obligations under this Section 7.02, the creation such failure shall not discharge, diminish or relieve Lessee of any liability for indemnification that it may have to such reserves or Indemnified Person hereunder, unless the furnishing contest of a claim is precluded as a result of such failure; provided that any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof by Lessee to such Indemnified Person pursuant hereto shall not be deferred, if, at deemed to constitute a waiver or release of any time the Property right or remedy (including any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger remedy of being forfeited or lost or Lender is likely to be subject to civil or criminal damages damages) that Lessee may have against such Indemnified Person if as a result thereof. If of such action or proceeding failure Lessee's ability to contest the claim is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may beaffected.
Appears in 1 contract
Samples: Participation Agreement (Sweetheart Holdings Inc \De\)
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is not providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicableGAAP, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 500,000 individually, or $2,000,000 in the aggregate, which are not bonded, during such contest, Borrower, shall deposit with or deliver to Lender (and, if a Securitization shall have occurred, promptly following any such deposit or delivery, Borrower shall provide written notice of same to the Rating Agencies) either Cash and Cash Equivalents or Equivalents, a Letter or Letters of Credit or other security reasonably acceptable to Lender in an amount equal to 125110% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil penalties or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.
Appears in 1 contract
Samples: Loan and Security Agreement (Hudson Pacific Properties, Inc.)
Contest. Nothing contained herein (i) If a party is responsible for the payment of Taxes pursuant to Section 8.3 (the “Tax Indemnifying Party”) and the other party to this Agreement (the “Tax Indemnified Party”) receives notice of any deficiency, proposed adjustment, assessment, audit, examination, suit, dispute or other claim (a “Tax Claim”) with respect to such Taxes, the Tax Indemnified Party will promptly notify the Tax Indemnifying Party in writing of such Tax Claim, but the failure to so notify the Tax Indemnifying Party will not relieve the Tax Indemnifying Party of any liability they may have to the Tax Indemnified Party, except to the extent the Tax Indemnifying Party has suffered actual prejudice thereby.
(ii) With respect to any Tax Claim (including a Tax Claim pending on the Closing Date which is expressly set forth on Section 6.11(d)(ii) of the Disclosure Schedule), the Tax Indemnifying Party will assume and control all proceedings taken in connection with such Tax Claim and, without limiting the foregoing, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with any applicable governmental Persons with respect thereto, and may, either pay the Tax claimed and sxx for a refund where applicable law permits such refund suits or contest the Tax Claim in any permissible manner; provided, however, that the Tax Indemnifying Party will consult with the Tax Indemnified Party in the negotiation and settlement of any Tax Claim and the Tax Indemnifying Party will not, without the written consent of the Tax Indemnified Party, which consent shall not be deemed unreasonably withheld, settle or compromise any Tax Claim in any manner if such settlement or compromise would have the effect of increasing the Taxes of the Tax Indemnified Party (“Indemnified Party Tax Increase”); provided, however, that the consent of the Tax Indemnified Party will not be required if the Tax Indemnifying Party indemnifies the Tax Indemnified Party for all Losses attributable to require Borrower such Indemnified Party Tax Increase; provided, further, that, to paythe extent that a Tax Claim relates to the Straddle Period, the Stockholders’ Representative and Buyer will jointly control all proceedings taken in connection with any such Tax Claim.
(iii) The Tax Indemnified Party will cooperate with the Tax Indemnifying Party in contesting any Tax Claim, which cooperation will include the retention and (upon the Tax Indemnifying Party’s request) the provision to the Tax Indemnifying Party of records and information which are reasonably relevant to such Tax Claim, and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder or to testify at proceedings relating to such Tax Claim.
(iv) Neither party will settle or compromise a Tax Claim relating solely to Taxes of the Company or a Subsidiary for a Straddle Period without the other party’s written consent which consent shall not be unreasonably withheld.
(v) Neither Buyer nor any Affiliate of Buyer, shall (A) amend, refile or otherwise modify, or cause or permit the Company or any Subsidiary to be paidamend, refile or otherwise modify, any Imposition Tax election or Tax Return with respect to satisfy any Lientaxable period (or portion of any taxable period), ending on or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting before the validity, amount or application thereof, provided that in each case, at Closing Date without the time prior written consent of the commencement of any such action or proceedingStockholders’ Representative, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall will not be deferredunreasonably withheld, if, at any time the Property unless otherwise required by law or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may beregulation.
Appears in 1 contract
Samples: Merger Agreement (Spherion Corp)
Contest. Nothing contained In the event Lessee desires to contest any Taxes, assessments, charges, liens, rates or fees herein provided, it shall be deemed to require Borrower to paydo so by paying the amounts under protest, or cause shall provide for the payment thereof, together with all penalties, interest, costs and expenses, by the deposit of a sufficient sum of money to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is held in good faith, and escrow by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each caseLessor or, at the option of Lessor, by a good and sufficient undertaking as may be required or permitted by law, all to the end that no delinquency or proceedings based upon delinquency shall in anywise affect the title or interest of Lessor in the Demised Premises. Lessee agrees that it will prosecute any such contest with due diligence and in the event any such contest be adjudicated adversely to Lessee, that Lessee will, within Thirty (30) days after final determination, or within the time of provided for in such adjudication, whichever is sooner thereof, pay the commencement full amount of any such action Taxes, assessments, charges, liens, rates or proceedingfees, and during or other obligations not paid by Lessee to Lessor which may have been the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status subject of such contest at reasonable intervalsas so determined, (iii) if neither Borrower nor Operating together with all interest and penalties, costs and charges which may be payable in connection therewith and satisfy and cause the release of the same of record. Lessee is providing security as provided in clause (vi) belowshall keep the Lessor notified, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in from time to time throughout the Tax Reserve Account or Insurance Reserve Accountperiod of its pendency, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement progress and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case status of any Insurance Requirement, such contest. If a final determination is not had within Three (3) years from the failure date of Borrower to comply therewith shall not impair the validity of instituting any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individuallysuch contest, or in the aggregateevent of any default of the Lessee, during pursuant to the terms of this Lease, Lessor at its option, may pay out of any funds held in escrow for any such Taxes, assessments, charges, liens, rates or fees which may be under contest, Borrowertogether with all penalties, interest charges and other expenses whatever in connection with such contest and Lessee shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) immediately upon written demand from Lessor, terminate any additional interest, charge, or penalty arising from such contest. Notwithstanding In the foregoingevent the funds so held are insufficient to pay and satisfy the same, Lessor, at its option, may pay any deficiency and any amount so paid will be reimbursed by Lessee as additional rent due hereunder, promptly upon demand, notwithstanding any previous termination of the creation term of this Lease by lapse of time or otherwise, with interest at Eighteen Percent (18%) per annum from the date of expenditure by Lessor. Nothing contained in this agreement shall be construed to authorize Lessee to create or incur on behalf of Lessor any liability, indebtedness or obligation whatsoever. Anything herein to the contrary, notwithstanding, Lessee shall defend, completely indemnify and hold Lessor forever harmless from any and all consequences of any such reserves Taxes, assessments, charges, liens, rates or the furnishing of any bond or other securityfees, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion contest thereof shall be, in Lender’s reasonable judgment, in imminent danger which were the obligations of being forfeited or lost or Lender is likely Lessee to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may bepay hereunder.
Appears in 1 contract
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is not providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunderthere under, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 500,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.
Appears in 1 contract
Samples: Loan and Security Agreement (KBS Real Estate Investment Trust, Inc.)
Contest. Nothing contained herein shall be deemed to require the Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement of Law or Insurance Requirement, so long as the Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) the Borrower shall keep Lender the Administrative Agent informed of the status of such contest at reasonable intervals, (iii) if neither the Borrower nor Operating Lessee is not providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on the Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicableGAAP, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of the Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by the Borrower under Section 6.1 7.3(1) or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, the Borrower, shall deposit with or deliver to Lender the Administrative Agent either Cash cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of the Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, the Borrower promptly shall comply with any contested Legal Requirement of Law or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Mortgaged Property or any portion thereof shall be, in Lenderthe Administrative Agent’s reasonable judgment, in imminent danger of being forfeited or lost or Lender the Administrative Agent is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to the Borrower, the Borrower shall deliver to Lender the Administrative Agent reasonable evidence of the Borrower’s compliance with such contested Imposition, Lien, Legal Requirements of Law or Insurance Requirements, as the case may be.
Appears in 1 contract
Samples: Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is not providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, or in the Proceeds Reserve Account pursuant to Article VI, as applicable, (iv) either such contest operates to suspend collection or enforcement enforcement, as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence diligence, or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Real Estate Impositions and Liens which are not bonded in excess of Two Million Dollars ($1,000,000 2,000,000) individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125110% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, (a) provided no Event of Default has occurred and is continuing hereunder, Lender shall disburse to Borrower or the Person entitled to such sums, the security provided therefor under this Section 7.3 and (b) Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be. Notwithstanding the foregoing, any contest conducted by the Master Lessee in accordance with the Master Lease that would satisfy the terms and conditions of this Section 7.3 if Borrower were the party conducting such contest will be deemed to satisfy the requirements of this Section 7.3 provided that any security deposited by Master Lessee pursuant to the provisions of the Master Lease in connection with such contest is delivered to Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Bloomin' Brands, Inc.)
Contest. Nothing contained herein Lessee shall pay on or before the time or times prescribed by law any Impositions (except any Impositions excluded by Section 8.1); provided, however, that Lessee shall be deemed under no obligation to require Borrower to pay, or cause to be paid, pay any such Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower the payment of such Imposition is not delinquent or is being contested by a Permitted Contest. If any claim or claims is or are made against any Indemnitee for any Imposition which is subject to indemnification as provided in good faithSection 8.1, such Indemnitee shall as soon as practicable notify Lessee and by proper legal proceedingsif, where appropriate, diligently contesting in the validity, amount or application thereof, provided that in each case, at reasonable opinion of tax counsel acceptable to the time Indemnitee there exists a reasonable basis to contest such Imposition and if the provisos of the commencement definition of any such action or proceeding, "Permitted Contest" continue to be satisfied and during the pendency of such action or proceeding (i) so long as no Event of Default shall exist exists and no income tax or unindemnified claim is also involved, and the Lessee admits in writing its duty to indemnify for such claim, Lessee at its expense may, to the extent permitted by applicable law to pursue such claim in its own name, contest such imposition, and subsequently may appeal any adverse determination, in the appropriate administrative and legal forums. If the above described conditions are satisfied but the claim involves income tax or an unindemnified claim or must be continuing hereunder, (ii) Borrower shall keep Lender informed pursued in the name of the status Indemnitee, and the amount at issue exceeds $25,000, then upon the request of Lessee to such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance RequirementIndemnitee, the failure Indemnitee, at Lessee's expense, shall contest any such Imposition through applicable administrative forums. Lessee shall pay all expenses incurred by the Indemnitee in contesting any such Imposition including, without limitation, all reasonable attorneys' and accountants' fees, including the allocated costs of Borrower to comply therewith internal counsel, upon demand by the Indemnitee. Lessee shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or have the right to full payment consult with respect to the conduct of any claims thereunderproceedings controlled by the Indemnitee and Indemnitee shall consider such consultations in good faith; provided, and (vi) in however, that such consultation shall not interfere with the case Indemnitee's control of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding Lessee shall in all events be kept informed, to the foregoingextent practicable, of material developments relative to such proceedings. The Indemnitee shall have the creation right to participate in the conduct of any such reserves or proceedings controlled by Lessee and the furnishing Indemnitee shall in all events be kept informed, to the extent practicable, of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely material developments relative to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.such
Appears in 1 contract
Samples: Participation Agreement (Weatherford International Inc /New/)
Contest. Nothing contained herein (i) If a written Claim is made against any Indemnified Person, or if any proceeding shall be deemed commenced against such Indemnified Person (including a written notice of such proceeding), for any Impositions, such Indemnified Person shall promptly notify the Indemnity Provider in writing and shall not take action with respect to require Borrower to paysuch Claim or proceeding without the consent of the Indemnity Provider for thirty (30) days after the receipt of such notice by the Indemnity Provider; provided, however, that, in the case of any such Claim or cause proceeding, if action shall be required by law or regulation to be paidtaken prior to the end of such 30-day period, any Imposition such Indemnified Person shall, in such notice to the Indemnity Provider, inform the Indemnity Provider of such shorter period, and no action shall be taken with respect to such Claim or proceeding without the consent of the Indemnity Provider before seven (7) days before the end of such shorter period; provided, further, that the failure of such Indemnified Person to satisfy any Liengive the notices referred to this sentence shall not diminish the Indemnity Provider’s obligation hereunder except to the extent such failure precludes the Indemnity Provider from contesting such Claim.
(ii) If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to comply with any Legal Requirement or Insurance Requirementcommence such contest), so long as Borrower is the Indemnity Provider shall request in writing that such Indemnified Person contest such Imposition, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faithfaith conduct and control such contest (including, and without limitation, by proper legal proceedings, where appropriate, diligently contesting pursuit of appeals) relating to the validity, applicability or amount or application thereofof such Imposition (provided, provided however, that in each case(A) if such contest can be pursued independently from any other proceeding involving a tax liability of such Indemnified Person, the Indemnified Person, at the time Indemnity Provider’s request, shall allow the Indemnity Provider to conduct and control such contest and (B) in the case of any contest, the Indemnified Person may request the Indemnity Provider to conduct and control such contest (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld, conditioned or delayed; provided, however, that any Indemnified Person may retain separate counsel at the expense of the commencement Indemnity Provider in the event of a conflict)) by, in the sole discretion of the Person conducting and controlling such contest, (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time.
(iii) The party controlling any contest shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of such contest; provided, that all decisions ultimately shall be made in the sole discretion of the controlling party, except that the Indemnity Provider may not agree to any dismissal or settlement of, or other agreement in connection with, any claim without the prior written consent of such Indemnified Person, if such dismissal, settlement or agreement would require any admission or acknowledgment of any culpability or wrongdoing by such Indemnified Person or provide for any nonmonetary relief to be performed by such Indemnified Person. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the contest of any Imposition and may settle such contest if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Imposition (and any future Claim by any taxing authority, the contest of which is precluded by reason of such resolution of such contest) and shall pay to the Indemnity Provider any amount previously paid or proceedingadvanced by the Indemnity Provider pursuant to this Section 13.2 by way of indemnification or advance for the payment of any amount regarding such Imposition other than expenses of such contest.
(iv) Notwithstanding the foregoing provisions of this Section 13.2, an Indemnified Person shall not be required to take any action and no Indemnity Provider shall be permitted to contest any Imposition in its own name or that of the Indemnified Person unless (A) the Indemnity Provider shall have agreed to pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with contesting such Imposition, including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements, (B) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of any Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (C) if such contest shall involve the payment of the Imposition prior to or during the pendency contest, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the Imposition that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person), (D) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such action or proceeding Indemnified Person an opinion of independent tax counsel selected by the Indemnified Person and reasonably satisfactory to the Indemnity Provider stating that a reasonable basis exists to contest such Claim, and (iE) no Event of Default shall exist have occurred and be continuing hereundercontinuing. In addition, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof Indemnified Person shall not be deferredrequired to contest any claim in its name (or that of an Affiliate) if the subject matter thereof shall be of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 13.2, ifunless there shall have been a change in law (or interpretation thereof) and the Indemnified Person shall have received, at any time the Property or any portion thereof shall beIndemnity Provider’s expense, in Lender’s reasonable judgment, in imminent danger an opinion of being forfeited or lost or Lender is likely independent tax counsel selected by the Indemnified Person and reasonably acceptable to be subject to civil or criminal damages the Indemnity Provider stating that as a result of such change in law (or interpretation thereof. If ), it is more likely than not that the Indemnified Person will prevail in such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may becontest.
Appears in 1 contract
Contest. Nothing contained herein shall be deemed to require Borrower to payXxxxx may, at its sole cost and expense, contest the validity or cause to be paid, amount of any Imposition or to satisfy any Lienfor which it is responsible, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting which event the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and payment thereof may be deferred during the pendency of such action contest, if diligently prosecuted, provided that ten (10) days prior to the date any contested Imposition shall become due, Xxxxx shall deposit with the District or, at Spohn’s discretion, the Governmental Entity imposing the same an amount sufficient to pay such contested item, together with any reasonably estimated interest and penalties thereon, which amount shall be applied to the payment of such items when the amount thereof shall be finally determined. In lieu of such cash deposit, Xxxxx may deliver to the District a surety company bond in form and substance and issued by a company reasonably satisfactory to the District. Nothing herein contained, however, shall be construed to allow any Imposition to remain unpaid for such length of time as would permit the Real Property, or proceeding (i) no Event of Default shall exist and any part thereof, to be continuing hereunder, (ii) Borrower shall keep Lender informed sold or seized by any Governmental Entity for the nonpayment of the status same. If at any time, in the sole but reasonable judgment of the District, it shall become necessary to do so, the District may, after written notice to Xxxxx, under protest if so requested by Xxxxx, direct the application of the amounts so deposited or so much thereof as may be required to prevent a sale or seizure of the Real Property (or any portion(s) thereof) or foreclosure of any lien created thereon by such item. If the amount deposited exceeds the amount of such payment, the excess shall be paid to Xxxxx, or, in case there should be any deficiency, the amount of such deficiency shall be promptly paid on demand by Xxxxx to the District (provided that the District has advanced such amount), and, if not so paid, such amount shall be a debt of Xxxxx to the District, together with interest thereon at the interest rate from the date advanced until paid. Xxxxx shall promptly furnish the District with copies of all proceedings and documents relating to any tax contest relating to the Real Property (or any portion(s) thereof), and the District shall have the right, at reasonable intervalsits sole cost and expense, (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) belowto participate therein. The District may, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP at its sole cost and expense, contest the validity or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case amount of any Insurance RequirementCounty Imposition for which it is responsible, in which event the failure payment thereof may be deferred during the pendency of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrowerif diligently prosecuted, provided that ten (10) days prior to the date any contested County Imposition shall become due, the District shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in the Governmental Entity imposing the same an amount equal sufficient to 125% pay such contested item, together with any reasonably estimated interest and penalties thereon, which amount shall be applied to the payment of (A) such items when the amount thereof shall be finally determined. Nothing herein contained, however, shall be construed to allow any County Imposition to remain unpaid for such length of Borrower’s obligations being contested plus (B) any additional interest, chargetime as would permit the Real Property, or penalty arising from such contestany part thereof, to be sold or seized by any Governmental Entity for the nonpayment of the same. Notwithstanding The District shall promptly furnish Xxxxx with copies of all proceedings and documents relating to any tax contest relating to the foregoing, the creation of Real Property (or any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lienportion(s) thereof), and compliance therewith or payment thereof Xxxxx shall not be deferred, ifhave the right, at any time the Property or any portion thereof shall beits sole cost and expense, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may beparticipate therein.
Appears in 1 contract
Samples: Membership Agreement
Contest. Nothing contained herein shall be deemed to require Mezzanine Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Mezzanine Borrower is (or has caused Mortgage Borrower to be) in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Mezzanine Borrower shall keep Mezzanine Lender informed of the status of such contest at reasonable intervals, (iii) if neither Mezzanine Borrower nor Operating Lessee is not providing (or has not caused Mortgage Borrower to provide) security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Mezzanine Borrower’s (or Mortgage Borrower’s as applicable) books in accordance with GAAP or (or, in the case of Mortgage Borrower, such reserves are maintained in the Tax Reserve Account or Insurance Reserve Account, as applicable, or in the Proceeds Reserve Account pursuant to Article VI of the Loan Agreement (Mortgage), as applicable), (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 this Agreement or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of Two Million Dollars ($1,000,000 2,000,000) individually, or Ten Million Dollars ($10,000,000) in the aggregate, during such contest, Borrower, Mezzanine Borrower shall (or shall cause Mortgage Borrower to) deposit with or deliver to Mezzanine Lender (or, if required under the Loan Agreement (Mortgage), Mortgage Lender) either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125110% of (A) the amount of Borrower’s the obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Mezzanine Borrower shall (or shall cause Mortgage Borrower to) promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property Property, the Collateral, the Senior Mezzanine Collateral or any portion thereof shall be, in Mezzanine Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Mezzanine Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Mezzanine Borrower, Senior Mezzanine Borrower or Mortgage Borrower, as applicable (a) provided no Event of Default has occurred and is continuing hereunder, Mezzanine Lender shall (or, as applicable, Mortgage Lender may) disburse to the Person entitled to such sums, the security provided therefore under this Section 7.3 and (b) Mezzanine Borrower shall deliver to Mezzanine Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be. Notwithstanding the foregoing, any contest conducted by the Master Lessee in accordance with the Master Lease will be deemed to satisfy the requirements of this Section 7.3 provided that any security deposited by Master Lessee pursuant to the provisions of the Master Lease in connection with such contest is delivered to Mezzanine Lender (or, if required under the Loan Agreement (Mortgage), the Mortgage Lender).
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is not providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s 's books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bondedbonded or insured over, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 500,000 individually, or in the aggregate, which are not bonded, during such contest, Borrower, shall deposit with or deliver to Lender (and, if a Securitization shall have occurred, promptly following any such deposit or delivery, Borrower shall provide written notice of same to the Rating Agencies) either Cash and Cash Equivalents or Equivalents, a Letter or Letters of Credit or other security reasonably acceptable to Lender in an amount equal to 125110% of (A) the amount of Borrower’s 's obligations being contested plus (B) any additional interest, charge, or penalty arising from such contestcontest (less any sums reserved in a Sub-Account with respect to the obligation being contested). Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s 's reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil penalties or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s 's compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.
Appears in 1 contract
Samples: Loan and Security Agreement (Maguire Properties Inc)
Contest. Nothing contained herein Tenant shall be deemed have the right to require Borrower contest the validity or amount of any mechanic's lien or any lien referred to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereofforegoing provisions of this Article, provided that Tenant deposit cash or cash equivalents with Landlord or provide Landlord a letter of credit payable to Landlord from a financial institution acceptable to Landlord and in each case, at the time of the commencement of any such action or proceeding, form and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates content acceptable to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit Landlord in an amount equal to 125% one hundred fifty percent (150%) of (A) the amount of Borrower’s obligations such alleged lien. Such letter of credit shall be issued by a National Bank or a Federal Savings and Loan Association. INTENT OF PARTIES Triple Net Lease. It being contested plus (B) any additional interestthe intention and purpose of the respective parties hereto that this Lease shall be a "Triple Net Lease" and that all rentals shall be paid to Landlord without diminution except as otherwise provided herein, chargethe parties agree that all cost or expense of whatever character or kind, general or special, ordinary or extraordinary, foreseen or unforeseen, and of every kind and nature whatsoever that may be necessary in or about the operation of the Demised Premises, and all improvements erected thereon, and Tenant's authorized use thereof during the entire term of this Lease, or penalty arising from any extension thereof, shall be paid by Tenant except as otherwise provided for herein, and all provisions of this Lease relating to Impositions, charges or other expenses are to be construed in light of such contestintention and purpose that this Lease be a "Triple Net Lease", and that, except as otherwise provided for herein, all rentals shall be paid to Landlord without diminution, reduction or offset. Notwithstanding DEFAULTS OF TENANT Events of Default. Any one or more of the foregoingfollowing events shall be considered an "Event of Default": If default shall be made by Tenant, by operation of law or otherwise, under the creation provisions hereof relating to assignment, sublease, mortgage or other transfer of Tenant's interest in this Lease or in the Demised Premises; If default shall be made in the due and punctual payment of any such reserves Base Rent or additional rent payable under this Lease or in the furnishing payment of any bond or other securityobligation to be paid by Tenant to Landlord, Borrower promptly when and as the same shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lienbecome due and payable, and compliance therewith such default shall continue for a period of ten (10) days after written notice thereof given by Landlord to Tenant; If default shall be made by Tenant in keeping, observing or payment performing any of the terms contained in this Lease, other than those referred to in the foregoing Subparagraphs (a) and (b) of this Paragraph, which default does not expose Landlord to criminal liability, and such default shall continue for a period of sixty (60) days after written notice thereof shall given by Landlord to Tenant, or in the case of such a default or a contingency which cannot with due diligence and in good faith be deferredcured within sixty (60) days, ifTenant fails to proceed promptly and with due diligence and in good faith to cure the same and thereafter to prosecute the curing of such default with due diligence and in good faith (it being intended that in connection with a default which does not expose Landlord to criminal liability, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger not susceptible of being forfeited cured with due diligence and in good faith within sixty (60) days that the time of Tenant within which to cure the same shall be extended for such period as may be necessary for the curing thereof promptly with due diligence and in good faith); If default shall be made by Tenant in keeping, observing or lost performing any of the terms contained in this Lease, other than those referred to in the foregoing Subparagraphs (a), (b) and (c) of this Paragraph, which default exposes Landlord to criminal liability, and such default shall continue after written notice thereof given by Landlord to Tenant, and Tenant fails to proceed timely and promptly with all due diligence and in good faith to cure the same and thereafter to prosecute the curing of such default with all due diligence (it being intended that in connection with a default which exposes Landlord to criminal liability that Tenant shall proceed immediately to cure or Lender is likely to be subject to civil or criminal damages as a result thereof. If correct such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance condition with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.continuity and with all due diligence and in good faith); or
Appears in 1 contract
Contest. Nothing contained herein shall Lessor and Lessee will consult with one another to consider what action may properly be deemed taken to require Borrower to pay, defend or cause to be paid, otherwise resist or mitigate any Imposition Claim. Provided no Default or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist have occurred and be continuing, Lessee shall, following such consultation, have the right to assume and conduct promptly and diligently the defense of the relevant Indemnitee with respect to such Claim, and no Claim will be settled by an Indemnitee without the prior written consent of Lessee (not to be unreasonably withheld or delayed), provided that:
(a) Lessee shall have consulted, and shall continue to consult, with Lessor as to the defense and conduct thereof;
(b) Lessee shall have made, and continue to make, adequate provision or reserve with respect to such Claim and any associated costs and expenses (in accordance with GAAP) and shall have fully indemnified or agreed to indemnify the Indemnitees for all costs, liabilities, expenses or damages on an After Tax Basis arising as a result of such Claim or its defense by Lessee of such Indemnitee pursuant to this Clause; provided, however, that Lessee shall not be bound by such an agreement to indemnify to the extent that it is established that, in accordance with the terms of this Clause 10, that Lessee is not liable to such Indemnitees in respect of such Claim.
(c) without prejudice to Lessee's continued right to contest any Claim, no Indemnitee shall be prevented by this Clause 10.3 from settling or paying any Claim immediately if such Indemnitee is required by applicable law to do so but such Indemnitee shall pay over to Lessee any amount paid by Lessee by way of indemnity in respect of such settlement or payment which is later refunded to such Indemnitee if (i) Lessee agrees that it was liable for such claim under this Clause 10 and (ii) Lessee establishes that it would have been successful in respect of such contest and (iii) no Default has occurred and is continuing, and if a Default shall have occurred and be continuing hereunderthe same shall be retained by Lessor until such Default (and any other Default) shall have been cured then promptly paid to Lessee to the extent not applied in satisfaction of Lessee's obligations in respect of any Default; and Lessor shall be entitled, (ii) Borrower shall keep Lender informed upon consultation with and prior written notice to Lessee, to terminate Lessee's participation in the defense of a Claim where an act or omission of Lessee indicates that the status interests of any Indemnitee have a reasonable likelihood of being materially adversely prejudiced by Lessee's continued participation in the defense of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may beClaim.
Appears in 1 contract
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or Imposition, to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is not providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s 's books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 5,000,000 individually, or in the aggregate, which are not bonded, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125110% of (A) the amount of Borrower’s 's obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest; provided, however, Borrower shall not be required to deliver such additional collateral if in Lender's sole but reasonable discretion a provision is made to Lender for protection of Lender's interest in the Property. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s 's reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s 's compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.
Appears in 1 contract
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause If written claim is made against any Indemnitee for any Taxes required to be paidindemnified in this Section 15, such Indemnitee shall within thirty (30) days notify Lessee; provided however, that any Imposition or failure to satisfy any Liennotify Lessee shall not diminish Lessee's obligations hereunder except to the extent Lessee is prevented from effectively exercising its contest rights. If requested by Lessee in writing (provided that Lessee shall furnish the Indemnitee a written opinion of independent counsel selected by Lessee and reasonably satisfactory to Indemnitee to the effect that a meritorious defense to such claim exists), or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is such Indemnitee shall in good faithfaith contest, and by proper legal proceedingsincluding an appeal to the first court of competent jurisdiction (or, where appropriatein the good faith discretion of such Indemnitee, diligently contesting permit Lessee to contest in the name of Lessee or in the name of such Indemnitee) the validity, applicability and amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding Taxes by (i) no Event resisting payment thereof, if such Tax Indemnitee in its reasonable discretion shall determine such course of Default shall exist and action to be continuing hereunderappropriate, (ii) Borrower shall keep Lender informed of paying the status of such contest at reasonable intervalssame under protest, if protest is necessary and proper, or (iii) if neither Borrower nor Operating payment shall be made, attempting to obtain a refund thereof in appropriate administrative and judicial proceedings, including an appeal to the first court of competent jurisdiction, provided, however, that (A) prior to taking such action Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained shall have agreed to pay such Indemnitee on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicabledemand, (iv) either such contest operates to suspend collection or enforcement as the case may beor, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirementitem (II) below, the failure of Borrower advance to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereundersuch Indemnitee on an interest-free basis) all costs and expenses which such Indemnitee may incur in connection with contesting such claim, including, without limitation, (I) all reasonable legal, accountants' and investigatory fees and disbursements, and (viII) if such contest is to be initiated by the payment of, and the claiming of a refund for, such Tax, sufficient funds on an after-tax basis to make such payment, and (B) such proceedings do not, based on a good faith determination of such Indemnitee involve any danger of the sale, forfeiture or loss of the Airship or any part thereof or if there is such a risk, Lessee has provided to the Indemnitee security in form and substance reasonably satisfactory to such Indemnitee. The Indemnitee shall determine the case method of Impositions any contest and Liens which are (upon good faith consultation with Lessee) control the conduct thereof. Notwithstanding anything contained in this Section, an Indemnitee will not bonded in excess of $1,000,000 individuallybe required to contest, or in to continue to contest the aggregatevalidity, during such contest, Borrower, shall deposit with applicability or deliver to Lender either Cash and Cash Equivalents amount of any Tax (or a Letter or Letters of Credit in an amount equal to 125% of portion thereof) (Ax) the amount of Borrower’s obligations being contested plus the claim for which does not exceed $25,000 or (By) any additional interest, chargeif a Default or Event of Default has occurred and is continuing. Any Indemnitee may in its sole discretion (by written notice to Lessee) unconditionally waive its rights to the indemnities provided for in this Section 15 and refrain from contesting, or penalty arising from continuing the contest of such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall beTaxes, in Lender’s reasonable judgmentwhich event Lessee shall have no liability to such Indemnitee hereunder with respect to such Taxes and such Indemnitee shall refund to Lessee any advance previously made by Lessee with respect to such Taxes, in imminent danger plus interest thereon at the rate applicable to refunds of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence Taxes under the laws of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may berelevant jurisdiction.
Appears in 1 contract
Contest. Nothing contained herein shall be deemed to require Borrower and/or Maryland Owner to pay, or cause to be paid, any Imposition or Other Charges, or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower and/or Maryland Owner is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding proceeding
(i) no Event of Default shall exist and be continuing hereunder, (iia) Borrower and/or Maryland Owner shall keep Lender informed of the status of such contest at reasonable intervals, (iiib) if neither Borrower nor Operating Lessee and/or Maryland Owner is not providing security as provided in clause (vie) below, adequate reserves with respect thereto are maintained on Borrower’s and/or Maryland Owner’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (ivc) either such contest operates to suspend collection or enforcement enforcement, as the case may be, of the contested Imposition, Lien or Legal Requirement Requirement, and such contest is maintained and prosecuted continuously and with diligence diligence, or the Imposition or Lien is bondedbonded or provision reasonably satisfactory to Lender for the protection of Lender’s interest in the each applicable Individual Property is otherwise made, (vd) in the case of any Insurance Requirement, the failure of Borrower and/or Maryland Owner to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower and/or Maryland Owner under Section 6.1 or the right to full payment of any claims thereunder, and (vie) in the case of Impositions and Liens which are not bonded in excess of Ten Million and No/100 Dollars ($1,000,000 individually, or 10,000,000.00) in the aggregate, aggregate or One Million and No/100 Dollars ($1,000,000.00) individually (the “Contest Threshold”) during such contest, BorrowerBorrower and/or Maryland Owner, shall deposit with or deliver to Lender either Cash and Cash Equivalents Equivalents, a guaranty by VOP or any other Person, provided that VOP or such other Person maintains an Investment Grade rating as to its a long-term unsecured debt, to Lender (in form reasonably acceptable to Lender) of any or a Letter or Letters of Credit in an amount equal to 125% the excess of (A) (i) the amount of Borrower’s and/or Maryland Owner’s obligations being contested plus (Bii) any additional interest, charge, or penalty arising from such contestcontest over (B) the Contest Threshold, or provision reasonably satisfactory to Lender for the protection of Lender’s interest in each applicable Individual Property is otherwise made. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower and/or Maryland Owner promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the any Individual Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages charges as a result thereof. If such action or proceeding is terminated or discontinued adversely to BorrowerBorrower and/or Maryland Owner, Borrower and/or Maryland Owner shall deliver to Lender reasonable evidence of Borrower’s and/or Maryland Owner’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.
Appears in 1 contract
Samples: Loan and Security Agreement (Urban Edge Properties)
Contest. Nothing contained herein shall be deemed to require Borrower to payBorrower, at its own expense, may, or may cause Mortgage Borrower or Hotel Lessee to, contest (after prior written notice to be paidAdministrative Agent) by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Impositions, any Imposition or to satisfy any LienLiens imposed on the Property, or to comply with and the application of any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding that:
(ia) no Event of Default shall exist and be continuing hereunder;
(b) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument and any applicable Legal Requirements to which Borrower, Mortgage Borrower, Hotel Lessee or the Property is subject;
(iic) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost;
(d) Borrower shall keep Lender Administrative Agent informed of the status of such contest at reasonable intervals, ;
(iiie) if neither Borrower, Hotel Lessee or Mortgage Borrower nor Operating Lessee is not providing security as provided in clause (vig) belowbelow or in accordance with the Mortgage Loan Agreement, adequate reserves with respect thereto are maintained on Borrower’s, Hotel Lessee’s or Mortgage Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, (as applicable, determined by an Independent Accountant);
(ivf) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded; provided, (v) however, that with respect to any Lien filed by any Contractor in respect of work or services performed or materials supplied to the case of any Insurance RequirementProperty, the failure of Borrower to comply therewith same shall not impair the validity of any insurance be required to be maintained discharged of record (whether by Borrower under Section 6.1 bonding, payment or otherwise) regardless of amount within forty-five (45) days from the right to full payment of any claims thereunder, and date such Lien first encumbers the Property; and
(vig) in the case of Impositions and Liens which are not bonded (other than those required to be discharged of record pursuant to subclause (f) hereof or which have been paid in excess of $1,000,000 individually, or in the aggregatefull), during such contest, (i) if the Mortgage Loan remains outstanding. Borrower shall cause Mortgage Borrower or Hotel Lessee to deposit with or deliver to Mortgage Administrative Agent, and (ii) if the Mortgage Loan is no longer outstanding, Borrower, Hotel Lessee or Mortgage Borrower shall deposit with or deliver to Lender Administrative Agent either Cash and Cash Equivalents or a Letter or Letters Letter(s) of Credit in an amount equal to one hundred twenty-five percent (125% %) of (Ai) the amount of Borrower’s obligations being contested plus (Bii) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (NRI Real Token Inc.)
Contest. Nothing contained herein shall be deemed Borrower or Hotel Lessee, at its own expense, may contest (after prior written notice to require Borrower to payAdministrative Agent) by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or cause to be paidvalidity or application in whole or in part of any Impositions, any Imposition or to satisfy any LienLiens imposed on the Property, or to comply with and the application of any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding that:
(ia) no Event of Default shall exist and be continuing hereunder;
(b) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument and any applicable Legal Requirements to which Borrower, Hotel Lessee or the Property is subject;
(iic) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost;
(d) Borrower or Hotel Lessee shall keep Lender Administrative Agent informed of the status of such contest at reasonable intervals, ;
(iiie) if neither Borrower nor Operating Lessee or Hotel Lessee, as applicable, is not providing security as provided in clause (vig) below, adequate reserves with respect thereto are maintained on Borrower’s or Hotel Lessee’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, (as applicable, determined by an Independent Accountant);
(ivf) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded; provided, (v) however, that with respect to any Lien filed by any Contractor in respect of work or services performed or materials supplied to the case of any Insurance RequirementProperty, the failure of Borrower to comply therewith same shall not impair the validity of any insurance be required to be maintained discharged of record (whether by Borrower under Section 6.1 bonding, payment or otherwise) regardless of amount within forty-five (45) days from the right to full payment of any claims thereunder, and date such Lien first encumbers the Property; and
(vig) in the case of Impositions and Liens which are not bonded (other than those required to be discharged of record pursuant to subclause (f) hereof or which have been paid in excess of $1,000,000 individually, or in the aggregatefull), during such contest, Borrower, Borrower or Hotel Lessee shall deposit with or deliver to Lender Administrative Agent either Cash and Cash Equivalents or a Letter or Letters Letter(s) of Credit in an amount equal to one hundred twenty-five percent (125% %) of (Ai) the amount of Borrower’s or Hotel Lessee’s obligations being contested plus (Bii) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower and Hotel Lessee promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in LenderAdministrative Agent’s reasonable judgment, in imminent danger of being forfeited or lost or Lender Administrative Agent is likely to be subject to civil or criminal damages as a result thereofthereof (and Administrative Agent shall make any deposit held by it in connection therewith available for such compliance by Borrower or Hotel Lessee). If Borrower and Hotel Lessee shall promptly upon final determination thereof pay the amount of any such action Impositions, or proceeding is terminated or discontinued adversely to BorrowerLien, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance together with all costs, interest and penalties which may be payable in connection therewith, and comply with any such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may beRequirement.
Appears in 1 contract
Contest. Nothing contained herein shall be deemed to require Mezzanine Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Mezzanine Borrower is (or has caused Mortgage Borrower to be) in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Mezzanine Borrower shall keep Mezzanine Lender informed of the status of such contest at reasonable intervals, (iii) if neither Mezzanine Borrower nor Operating Lessee is not providing (or has not caused Mortgage Borrower to provide) security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Mezzanine Borrower’s (or Mortgage Borrower’s as applicable) books in accordance with GAAP or (or, in the case of Mortgage Borrower, such reserves are maintained in the Tax Reserve Account or Insurance Reserve Account, as applicable, or in the Proceeds Reserve Account pursuant to Article VI of the Loan Agreement (Mortgage), as applicable), (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 this Agreement or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of Two Million Dollars ($1,000,000 2,000,000) individually, or Ten Million Dollars ($10,000,000) in the aggregate, during such contest, Borrower, Mezzanine Borrower shall (or shall cause Mortgage Borrower to) deposit with or deliver to Mezzanine Lender (or, if required under the Loan Agreement (Mortgage), Mortgage Lender) either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125110% of (A) the amount of Borrower’s the obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Mezzanine Borrower shall (or shall cause Mortgage Borrower to) promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property Property, the Collateral, the Senior Mezzanine Collateral or any portion thereof shall be, in Mezzanine Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Mezzanine Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Mezzanine Borrower, Senior Mezzanine Borrowers, or Mortgage Borrower, as applicable (a) provided no Event of Default has occurred and is continuing hereunder, Mezzanine Lender shall (or, as applicable, Mortgage Lender may) disburse to the Person entitled to such sums, the security provided therefore under this Section 7.3 and (b) Mezzanine Borrower shall deliver to Mezzanine Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be. Notwithstanding the foregoing, any contest conducted by the Master Lessee in accordance with the Master Lease will be deemed to satisfy the requirements of this Section 7.3 provided that any security deposited by Master Lessee pursuant to the provisions of the Master Lease in connection with such contest is delivered to Mezzanine Lender (or, if required under the Loan Agreement (Mortgage), the Mortgage Lender).
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Contest. Nothing contained herein (i) If a written Claim is made against any Indemnified Person, or if any proceeding shall be deemed commenced against such Indemnified Person (including a written notice of such proceeding), for any Impositions, such Indemnified Person shall promptly notify the Indemnity Provider in writing and shall not take action with respect to require Borrower to paysuch Claim or proceeding without the consent of the Indemnity Provider for thirty (30) days after the receipt of such notice by the Indemnity Provider; provided, however, that, in the case of any such Claim or cause proceeding, if action shall be required by law or regulation to be paidtaken prior to the end of such 30-day period, any Imposition such Indemnified Person shall, in such notice to the Indemnity Provider, inform the Indemnity Provider of such shorter period, and no action shall be taken with respect to such Claim or proceeding without the consent of the Indemnity Provider before seven (7) days before the end of such shorter period; provided, further, that the failure of such Indemnified Person to satisfy any Liengive the notices referred to this sentence shall not diminish the Indemnity Provider’s obligation hereunder except to the extent such failure precludes the Indemnity Provider from contesting such Claim.
(ii) If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to comply with any Legal Requirement or Insurance Requirementcommence such contest), so long as Borrower is the Indemnity Provider shall request in writing that such Indemnified Person contest such Imposition, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faithfaith conduct and control such contest (including, and without limitation, by proper legal proceedings, where appropriate, diligently contesting pursuit of appeals) relating to the validity, applicability or amount or application thereofof such Imposition (provided, provided however, that in each case(A) if such contest can be pursued independently from any other proceeding involving a tax liability of such Indemnified Person, the Indemnified Person, at the time Indemnity Provider’s request, shall allow the Indemnity Provider to conduct and control such contest and (B) in the case of any contest, the Indemnified Person may request the Indemnity Provider to conduct and control such contest (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld, conditioned or delayed; provided, however, that any Indemnified Person may retain separate counsel at the expense of the commencement Indemnity Provider in the event of a conflict)) by, in the sole discretion of the Person conducting and controlling such contest, (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time.
(iii) The party controlling any contest shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of such contest; provided, that all decisions ultimately shall be made in the sole discretion of the controlling party, except that the Indemnity Provider may not agree to any dismissal or settlement of, or other agreement in connection with, any claim without the prior written consent of such Indemnified Person, if such dismissal, settlement or agreement would require any admission or acknowledgment of any culpability or wrongdoing by such Indemnified Person or provide for any nonmonetary relief to be performed by such Indemnified Person. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the contest of any Imposition and may settle such contest if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Imposition (and any future Claim by any taxing authority, the contest of which is precluded by reason of such resolution of such contest) and shall pay to the Indemnity Provider any amount previously paid or proceedingadvanced by the Indemnity Provider pursuant to this Section 10.2 by way of indemnification or advance for the payment of any amount regarding such Imposition, other than expenses of such contest.
(iv) Notwithstanding the foregoing provisions of this Section 10.2, an Indemnified Person shall not be required to take any action and no Indemnity Provider shall be permitted to contest any Imposition in its own name or that of the Indemnified Person unless (A) the Indemnity Provider shall have agreed to pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with contesting such Imposition, including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements, (B) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of any Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (C) if such contest shall involve the payment of the Imposition prior to or during the pendency contest, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the Imposition that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person), (D) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such action or proceeding Indemnified Person an opinion of independent tax counsel selected by the Indemnified Person and reasonably satisfactory to the Indemnity Provider stating that a reasonable basis exists to contest such Claim, and (iE) no Event of Default shall exist have occurred and be continuing hereundercontinuing. In addition, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof Indemnified Person shall not be deferredrequired to contest any claim in its name (or that of an Affiliate) if the subject matter thereof shall be of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 10.2, ifunless there shall have been a change in law (or interpretation thereof) and the Indemnified Person shall have received, at any time the Property or any portion thereof shall beIndemnity Provider’s expense, in Lender’s reasonable judgment, in imminent danger an opinion of being forfeited or lost or Lender is likely independent tax counsel selected by the Indemnified Person and reasonably acceptable to be subject to civil or criminal damages the Indemnity Provider stating that as a result of such change in law (or interpretation thereof. If ), it is more likely than not that the Indemnified Person will prevail in such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may becontest.
Appears in 1 contract
Contest. Nothing contained herein shall be deemed to require Borrower to payMortgagor may, in good faith and with due diligence, contest or cause to be paid, any Imposition contested the validity or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceedingTaxes without paying the same as provided in Section 6(a) hereof, and during the pendency of such action or proceeding provided that:
(i) no Event such contest shall have the effect of Default preventing or Mortgagor shall exist otherwise prevent the collection of the Taxes so contested and be continuing hereunder, the sale or forfeiture of the Premises or any part thereof or interest therein to satisfy the same;
(ii) Borrower Mortgagor shall keep Lender informed have notified Mortgagee in writing of the status intention of Mortgagor to contest the same or to cause the same to be contested before any of such contest at reasonable intervalsTaxes have been increased by any interest, penalties, or costs; and
(iii) if neither Borrower nor Operating Lessee is providing Mortgagor shall have deposited with Mortgagee cash, a bond or other security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates acceptable to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit Mortgagee in an amount equal to 125100% of (A) the amount of Borrower’s obligations amounts being contested plus which exceed One Hundred Thousand Dollars (B$100,000) in the aggregate and any additional interest, charge, charge or penalty arising from such contest. Notwithstanding Mortgagor shall keep Mortgagee generally advised of the foregoingstatus of any contest as it continues and shall promptly provide any information requested by Mortgagee with respect thereto. If Mortgagor fails to prosecute such contest with due diligence or fails to maintain sufficient funds or security on deposit as hereinabove provided, or, if any of the other conditions to such contest are no longer being satisfied or if there has been a final disposition of such contest or if such contest has been discontinued, Mortgagee may, at its option, within ten (10) days following Mortgagee's written notice to Mortgagor (or such shorter period of time necessary in Mortgagee's opinion to prevent the collection of Taxes from, or the sale or forfeiture of, the creation of Premises or any such reserves part thereof or interest therein or the furnishing Receipts therefrom), apply the monies and in connection therewith liquidate any investments of any bond cash deposited with Mortgagee, in payment of, or other securityon account of, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Liensuch Taxes, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof then unpaid, including all penalties and interest thereon. If the amount of the money so deposited is insufficient for the payment in full of such Taxes, including all penalties and interest thereon, Mortgagor shall beforthwith, upon demand, either deposit with Mortgagee a sum that, when added to such funds then on deposit, is sufficient to make such payment in full, or, if Mortgagee has applied funds on deposit on account of such Taxes, restore such deposit to an amount satisfactory to Mortgagee. Provided that no Event of Default shall then exist hereunder or under any of the other Loan Documents, Mortgagee shall, if so requested in writing by Mortgagor, after final disposition of such contest and upon Mortgagor's delivery to Mortgagee of an official xxxx for such Taxes, apply the money so deposited in full payment of such Taxes or that part thereof then unpaid, including all penalties and interest thereon, and return any excess to Mortgagor, unless Mortgagor has paid all such Taxes, together with all penalties and interest thereon, and has provided Mortgagee with evidence satisfactory to Mortgagee of such payment, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely which event Mortgagee shall return such money to be subject to civil or criminal damages as a result thereofMortgagor. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance All monies deposited with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.Mortgagee pursuant to
Appears in 1 contract
Contest. Nothing contained herein shall be deemed to require Borrower to payMortgagor may, in good faith and with due diligence, contest or cause to be paidcontested by appropriate legal proceeding, the validity or amount of any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long such Taxes as Borrower is provided in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereofSection 6(a) hereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist has occurred and be is continuing hereunder(unless the Taxes have been paid under protest or Mortgagor has deposited the security required under clause (v) below), (ii) Borrower such proceeding shall keep Lender informed suspend the collection of the status Taxes from Mortgagor and from the Premises or Mortgagor shall have paid all of such contest at reasonable intervalsthe Taxes under protest, (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books such proceeding shall be permitted under and be conducted in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicableprovisions of any other instrument encumbering the Premises to which Mortgagor is subject and shall not constitute a default thereunder, (iv) either such contest operates to suspend collection neither the Premises nor any part thereof or enforcement as the case may beinterest therein will be in danger of being sold, of the contested Impositionforfeited, Lien terminated, cancelled or Legal Requirement lost, and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) Mortgagor shall have deposited with Mortgagee adequate reserves for the payment of the Taxes, together with all interest and penalties thereon, unless Mortgagor has paid all of the Taxes under protest, or, if such Taxes are not deposited with Mortgagor or paid under protest, Mortgagor shall have furnished the security as may be required in the case of any Insurance Requirement, proceeding to insure the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereundercontested Taxes, together with all interest and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may bepenalties thereon.
Appears in 1 contract
Samples: Mortgage, Security Agreement and Assignment of Leases (Gp Strategies Corp)
Contest. Nothing contained herein shall be deemed to require Mezzanine Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Mezzanine Borrower is (or has caused Mortgage Borrower to be) in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Mezzanine Borrower shall keep Mezzanine Lender informed of the status of such contest at reasonable intervals, (iii) if neither Mezzanine Borrower nor Operating Lessee is not providing (or has not caused Mortgage Borrower to provide) security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Mezzanine Borrower’s (or Mortgage Borrower’s as applicable) books in accordance with GAAP or (or, in the case of Mortgage Borrower, such reserves are maintained in the Tax Reserve Account or Insurance Reserve Account, as applicable, or in the Proceeds Reserve Account pursuant to Article VI of the Loan Agreement (Mortgage), as applicable), (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 this Agreement or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of Two Million Dollars ($1,000,000 2,000,000) individually, or Ten Million Dollars ($10,000,000) in the aggregate, during such contest, Borrower, Mezzanine Borrower shall (or shall cause Mortgage Borrower to) deposit with or deliver to Mezzanine Lender (or, if required under the Loan Agreement (Mortgage), Mortgage Lender) either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125110% of (A) the amount of Borrower’s the obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Mezzanine Borrower shall (or shall cause Mortgage Borrower to) promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property Property, the Collateral, the Senior Mezzanine Collateral or any portion thereof shall be, in Mezzanine Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Mezzanine Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Mezzanine Borrower, Senior Mezzanine Borrowers or Mortgage Borrower, as applicable (a) provided no Event of Default has occurred and is continuing hereunder, Mezzanine Lender shall (or, as applicable, Mortgage Lender may) disburse to the Person entitled to such sums, the security provided therefore under this Section 7.3 and (b) Mezzanine Borrower shall deliver to Mezzanine Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be. Notwithstanding the foregoing, any contest conducted by the Master Lessee in accordance with the Master Lease will be deemed to satisfy the requirements of this Section 7.3 provided that any security deposited by Master Lessee pursuant to the provisions of the Master Lease in connection with such contest is delivered to Mezzanine Lender (or, if required under the Loan Agreement (Mortgage), the Mortgage Lender).
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Contest. Nothing contained herein (a) If an Indemnitee receives a written claim from any taxing authority for any Indemnified Tax, such Indemnitee shall be deemed notify Lessee within thirty (30) days after receipt of such claim, but the failure to require Borrower so notify Lessee shall not affect Lessee’s obligations under this Article 21, unless such failure causes all rights of Lessee to pay, or cause contest such claim to be paidprecluded.
(b) If requested by Lessee in writing within thirty (30) days after such notification, any Imposition or such Indemnitee shall, upon receipt of indemnity satisfactory to satisfy any Lienit and at the expense of Lessee (including, or to comply with any Legal Requirement or Insurance Requirementwithout limitation, so long as Borrower is all reasonable costs, expenses, losses, legal and accounting fees and disbursements, penalties and interest), in good faithfaith contest (or, and by proper legal proceedingsat the option of such Indemnitee, where appropriate, diligently contesting permit Lessee to contest) the validity, applicability or amount or application thereofof such Tax in accordance with and to the extent permitted by applicable Law, and shall not settle any contest without the consent of Lessee (which consent shall not be unreasonably withheld), provided that in each case, such Indemnitee shall have no obligation to begin or continue (or to permit Lessee to begin or continue) any contest under this Section 21.4 unless the following conditions are satisfied at the time the contest is to be commenced and at all times during the contest:
(i) Lessee shall have provided such Indemnitee, together with Lessee’s written contest request, with an opinion of independent tax counsel satisfactory to such Indemnitee (both as to counsel and substance) to the commencement effect that there is a meritorious basis for such contest;
(ii) contesting such Tax claim will not result in any risk of imposition of any such action criminal penalty or, in Lessor’s reasonable opinion, any risk of any sale, forfeiture, confiscation, seizure or proceedingloss of, and during or the pendency creation of such action any Lien on, any Item of Equipment or proceeding any interest therein;
(iiii) no Event of Default shall exist have occurred and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, continuing;
(iv) either if such Indemnitee decides to contest operates such Tax claim by paying the Taxes that are the subject of such claim and taking action to suspend collection obtain a refund thereof, Lessee shall have advanced to such Indemnitee on an interest-free basis the amount of Taxes that are the subject of such claim and shall have agreed in writing to indemnify such Indemnitee and its Affiliates on an After-Tax Basis for any adverse Tax consequences to such Indemnitee or enforcement as any of its Affiliates resulting from such interest-free advance; *** Material has been omitted pursuant to a request for confidential treatment and filed separately with the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, SEC
(v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrowerthe Taxes to be contested exceeds $25,000 (or the equivalent in any other currency);
(vi) Lessee shall have provided such Indemnitee with a written acknowledgment of Lessee’s liability to indemnify such Indemnitee for the Taxes to be contested if and to the extent that the contest is not successful;
(vii) Lessee shall be paying, on demand and on an After-Tax Basis, all reasonable costs and expenses incurred by such Indemnitee in connection with the conduct of such contest (including, without limitation, all reasonable costs, expenses, losses, legal and accounting fees and disbursements, penalties and interest); and
(viii) if the sum of the Taxes that are the subject of such Tax claim exceeds One Million Dollars ($1,000,000) (or the equivalent in any other currency), Lessee shall have provided a letter of credit or other additional collateral satisfactory in form and amount to such Indemnitee to secure Lessee’s obligations being contested plus hereunder; and provided, further, that such Indemnitee shall have no obligation to begin or continue (Bor to permit Lessee to begin or continue) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation contest of any or all of the Taxes that are the subject of such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely Tax claim if such Indemnitee (x) waives its right under this Article 21 to be subject indemnified for the Taxes which such Indemnitee declines to civil or criminal damages as a result thereof. If contest and (y) repays to Lessee the amount (if any) which Lessee previously advanced to such action or proceeding is terminated or discontinued adversely Indemnitee pursuant to BorrowerSection 21.4(b)(iv) with respect to the Taxes that such Indemnitee declines to contest.
(c) The party contesting any Tax claim pursuant to this Section 21.4 shall control the conduct of the contest and shall, Borrower shall deliver to Lender reasonable evidence upon request, consult with the other party regarding the conduct of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may becontest and inform the other party of the progress of the contest.
Appears in 1 contract
Contest. Nothing contained herein Lessee shall pay on or before the time or times prescribed by law any Impositions (except any Impositions excluded by Section 8.1); provided, however, that Lessee shall be deemed under no obligation to require Borrower to pay, or cause to be paid, pay any such Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower the payment of such Imposition is not delinquent or is being contested by a Permitted Contest. If any claim or claims is or are made against any Indemnitee for any Imposition which is subject to indemnification as provided in good faithSection 8.1, Indemnitee shall as soon as practicable notify Lessee and by proper legal proceedingsif, where appropriate, diligently contesting in the validity, amount or application thereof, provided that in each case, at reasonable opinion of tax counsel acceptable to the time Indemnitee there exists a reasonable basis to contest such Imposition and if the provisos of the commencement definition of any such action or proceeding, "Permitted Contest" continue to be satisfied and during the pendency of such action or proceeding (i) so long as no Event of Default shall exist exists and no income tax or unindemnified claim is also involved, and the Lessee admits in writing its duty to indemnify for such claim, Lessee at its expense may, to the extent permitted by applicable law to pursue such claim in its own name, contest such imposition, and subsequently may appeal any adverse determination, in the appropriate administrative and legal forums. If the above described conditions are satisfied but the claim involves income tax or an unindemnified claim or must be continuing hereunder, (ii) Borrower shall keep Lender informed pursued in the name of the status Indemnitee, and the amount at issue exceeds $100,000, then upon the request of Lessee to such Indemnitee, the Indemnitee, at Lessee's expense, shall contest any such Imposition through applicable administrative forums. Lessee shall pay all expenses incurred by the Indemnitee in contesting any such Imposition including, without limitation, all reasonable attorneys' and accountants' fees, including the allocated costs of internal counsel, upon demand by the Indemnitee. Lessee shall have the right to consult with respect to the conduct of any proceedings controlled by the Indemnitee but such consultation shall not interfere with the Indemnitee's control of such contest at reasonable intervalscontest. Lessee shall in all events be kept informed, to the extent practicable, of material developments relative to such proceedings. The Indemnitee shall have the right to participate in the conduct of any proceedings controlled by Lessee and the Indemnitee shall in all events be kept informed, to the extent practicable, of material developments relative to such proceedings. The Indemnitees agree that a contested claim for which Lessee would be required to make a reimbursement payment hereunder will not be settled or compromised without Lessee's prior written consent (iii) if which consent shall neither Borrower be unreasonably delayed nor Operating Lessee is providing security as provided withheld other than in clause (vi) belowgood faith), adequate reserves unless the provisos of the definition of "Permitted Contest" would not continue to be satisfied, an Event of Default occurs or the Indemnitee waives its right to indemnification with respect thereto are maintained on Borrower’s books thereto. The failure of an Indemnitee to timely contest a claim against it for any Imposition which is subject to indemnification under Section 8.1 and for which it has an obligation to Lessee to contest under this Section 8.2 in the manner required by applicable law or regulations where Lessee has timely requested that such Indemnitee contest such claim shall relieve Lessee of their obligations to such Indemnitee under Section 8.1 with respect to such claim only to the extent such failure precludes contest. If applicable law requires the payment of a contested Imposition as a condition to, or regardless of, its being contested, and Lessee chooses to contest such Imposition or to direct the Indemnitee to contest such Imposition in accordance with GAAP or in this Section, then Lessee shall provide the Tax Reserve Account or Insurance Reserve AccountIndemnitee with the funds to pay such Imposition, as applicable, (iv) either such provision of funds to be deemed a non-interest bearing loan by Lessee to the Indemnitee to be repaid by any recovery of such Imposition from such contest operates and any remaining unpaid amount not recovered to suspend collection offset Lessee's obligation to indemnify the Indemnitee for such Imposition. In the event that the Indemnitee receives a refund (or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (vlike adjustment) in the case respect of any Insurance RequirementImposition for which the Indemnitee has been reimbursed by Lessee, the failure of Borrower to comply therewith Indemnitee shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) immediately remit the amount of Borrower’s obligations being contested plus such refund (Bor like adjustment) any additional interestto Lessee, charge, or penalty arising from net of all costs and expenses incurred by such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may beIndemnitee.
Appears in 1 contract
Contest. Nothing contained herein (a) If an Indemnified Party receives a written claim from any taxing authority for any Indemnified Tax, such Indemnified Party shall be deemed notify Lessee within 30 days after receipt of such claim, but the failure to require Borrower so notify Lessee shall not affect Lessee’s obligations under this Section 14, unless such failure causes all rights of Lessee to pay, or cause contest such claim to be paidprecluded.
(b) If requested by Lessee in writing within 30 days after such notification, any Imposition or such Indemnified Party shall, upon receipt of indemnity satisfactory to satisfy any Lienit and at the expense of Lessee (including, or to comply with any Legal Requirement or Insurance Requirementwithout limitation, so long as Borrower is all reasonable costs, expenses, losses, legal and accounting fees and disbursements, penalties, and interest), in good faithfaith contest (or, and by proper legal proceedingsat the option of such Indemnified Party, where appropriatepermit Lessee to contest), diligently contesting but not to the United States Supreme Court, the validity, applicability, or amount or application thereofof such Tax in accordance with and to the extent permitted by applicable Law, and shall not settle any contest without the consent of Lessee (which consent shall not be unreasonably withheld), provided that in each case, such Indemnified Party shall have no obligation to begin or continue (or to permit Lessee to begin or continue) any contest under this Section 14.4 unless the following conditions are satisfied at the time of the commencement of any such action or proceeding, contest is to be commenced and at all times during the pendency of such action or proceeding contest:
(i) Lessee shall have provided such Indemnified Party, together with Lessee’s written contest request, with an opinion of independent Tax counsel satisfactory to such Indemnified Party (both as to counsel and substance) to the effect that there is a meritorious basis for such contest; [**] — Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(ii) contesting such Tax claim will not result in any risk of imposition of any criminal penalty or, in Lessor’s reasonable opinion, any risk of any sale, forfeiture, confiscation, seizure or loss of, or the creation of any Lien on, any Item of Equipment or any interest therein;
(iii) no Lease Event of Default shall exist have occurred and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, continuing;
(iv) either if such Indemnified Party decides to contest operates such Tax claim by paying the Taxes that are the subject of such claim and taking action to suspend collection obtain a refund thereof, Lessee shall have advanced to such Indemnified Party on an interest-free basis the amount of Taxes that are the subject of such claim and shall have agreed in writing to indemnify such Indemnified Party and its Affiliates on an After-Tax Basis for any adverse Tax consequences to such Indemnified Party or enforcement as the case may be, any of the contested Imposition, Lien or Legal Requirement and its Affiliates resulting from such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, interest-free advance;
(v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrowerthe Taxes to be contested exceeds $25,000 (or the equivalent in any other currency);
(vi) Lessee shall have provided such Indemnified Party with a written acknowledgment of Lessee’s liability to indemnify such Indemnified Party for the Taxes to be contested if and to the extent that the contest is not successful;
(vii) Lessee shall be paying, on demand and on an After-Tax Basis, all reasonable costs and expenses incurred by such Indemnified Party in connection with the conduct of such contest (including, without limitation, all reasonable costs, expenses, losses, legal and accounting fees and disbursements, penalties, and interest); and
(viii) if the sum of the Taxes that are the subject of such Tax claim exceeds One Million Dollars ($1,000,000) (or the equivalent in any other currency), Lessee shall have provided a letter of credit or other additional collateral satisfactory in form and amount to such Indemnified Party to secure Lessee’s obligations being contested plus hereunder; and, provided, further, that such Indemnified Party shall have no obligation to begin or continue (Bor to permit Lessee to begin or continue) the contest of any additional interestor all of the Taxes that are the subject of such Tax claim if such Indemnified Party (x) waives its right under this Section 14 to be indemnified for the Taxes which such Indemnified Party declines to contest and (y) repays to Lessee the amount (if any) which Lessee previously advanced to such Indemnified Party pursuant to Section 14.4(b)(iv) with respect to the Taxes that such Indemnified Party declines to contest, chargeexcept for the previously incurred costs and expenses of the contest.
(c) The party contesting any Tax claim pursuant to this Section 14.4 shall control the conduct of the contest and shall, or penalty arising from such upon request, consult with the other party regarding the conduct of the contest and inform the other party of the progress of the contest. Notwithstanding [**] — Confidential treatment has been requested for the foregoing, bracketed portions. The confidential redacted portion has been omitted and filed separately with the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, Securities and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may beExchange Commission.
Appears in 1 contract
Contest. Nothing contained herein If a written claim is made against an Indemnified Party or if any proceeding shall be deemed commenced against any Indemnified Party (including a written notice of such proceeding), for any Taxes with respect to require Borrower which Deepwater may be liable for payment or indemnity hereunder or if any Indemnified Party shall determine that any Tax as to paywhich Deepwater may have an indemnity obligation hereunder shall be payable, such Indemnified Party shall promptly notify Deepwater in writing and shall not take any action with respect to such claim, proceeding or cause Tax without the consent of Deepwater for 30 days after the receipt of such notice by Deepwater; provided, however, that, in the case of any such claim or proceeding, if action shall be required by law or regulation to be paidtaken prior to the end of such 30-day period, any Imposition or such Indemnified Party shall, in such notice to satisfy any Lien, or to comply with any Legal Requirement or Insurance RequirementDeepwater, so long as Borrower is in good faithinform Deepwater, and no action shall be taken with respect to such claim or Tax without the consent of Deepwater before the end of such shorter period. If, within 30 days of receipt of such notice from the Indemnified Party (or such shorter period as the Indemnified Party has notified Deepwater is required by proper legal proceedingslaw or regulation for the Indemnified Party to commence such contest), where appropriateDeepwater shall request in writing that such Indemnified Party contest the imposition of such Tax, diligently contesting the validity, amount or application thereof, provided that in each caseIndemnified Party shall, at the time expense of the commencement Deepwater, in good faith contest (including, without limitation, by pursuit of any such action or proceedingappeals), and during the pendency of such action shall not settle without Deepwater's good faith consent (or proceeding (i) no Event if such contest can be pursued in the name of Default shall exist Deepwater and be continuing hereunderindependently from any other proceeding involving a tax liability, other than a net income or withholding Tax, of such Indemnified Party, the Indemnified Party shall, at Deepwater's sole discretion, allow Deepwater to contest, (ii) Borrower shall keep Lender informed if such contest involves a Tax, other than a net income or withholding Tax, which must be pursued in the name of the status Indemnified Party, but can be pursued independently from any other proceeding involving a tax liability of such Indemnified Party, the Indemnified Party shall allow Deepwater to contest at reasonable intervalsin the name of the Indemnified Party unless, in the good faith judgment of the Indemnified Party, such contest by Deepwater could have a material adverse impact on the business or operations of the Indemnified Party, in which case the Indemnified Party may control such contest or (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirementcontest, the failure Indemnified Party may request Deepwater to contest) the validity, applicability or amount of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereundersuch Taxes by, and (vi) in the case sole discretion of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during Person conducting such contest, Borrower(i) resisting payment thereof, (ii) not paying the same except under protest, if protest is necessary and proper, (iii) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings; or (iv) taking such other action as is reasonably requested by Deepwater from time to time. Notwithstanding the foregoing provisions of this Section 10.4(f), such Indemnified Party shall deposit not be required to take any administrative or judicial or other action and Deepwater shall not be able to contest such claim in its own name or that of the Indemnified Party unless (A) Deepwater shall have agreed to pay, and shall pay, to such Indemnified Party on demand all reasonable out-of-pocket costs, losses and expenses that such Indemnified Party may incur in connection with contesting such Taxes, including all reasonable legal, accounting and investigatory fees and disbursements (including reasonable allocated time charges of internal counsel of such Indemnified Party), (B) the action to be taken will not result in any material imminent danger of sale, forfeiture or deliver loss of the Drillship or any part thereof or interest therein or risk of criminal liability, (C) if such contest shall involve the payment of the Tax prior to Lender the contest, Deepwater shall, at its option, either Cash and Cash Equivalents (x) pay or a Letter reimburse the Indemnified Party for such Taxes or Letters of Credit (y) provide to the Indemnified Party an interest-free advance in an amount equal to 125% the Tax which the Indemnified Party is required to pay (with no additional net after-tax cost to such Indemnified Party), (D) Deepwater shall have provided to such Indemnified Party an opinion of independent tax counsel selected by Deepwater, and reasonably satisfactory to the Indemnified Party that a Reasonable Basis exists to contest such claim, and (E) if such contest is controlled by Deepwater, Deepwater shall have acknowledged, in writing, its liability for such indemnity in the event such contest is unsuccessful. In no event shall an Indemnified Party be required to appeal an adverse judicial determination to the United States Supreme Court. The Indemnified Party shall consult in good faith with Deepwater regarding the conduct of any contest controlled by such Indemnified Party and shall allow Deepwater to participate in the conduct of any such contest unless the Indemnified Party shall in good faith determine that allowing Deepwater to participate in the conduct of such contest could have a material adverse impact on the business or operations of the Indemnified Party. The parties agree that an Indemnified Party may at any time decline to take further action with respect to the contest of any claim for a Tax and may settle such claim, if such Indemnified Party shall waive its rights to any indemnity from Deepwater that otherwise would be payable in respect of such claim (or any logically related claim) and shall pay to Deepwater any amount previously paid or advanced by Deepwater pursuant to this Section 10.4(f) other than clause (A) of this paragraph (by way of indemnification or advance for the amount payment of Borrower’s a Tax) with respect to such Taxes. If an Indemnified Party shall fail to perform its obligations being contested plus (B) any additional interestunder this Section 10.4(f), chargesuch failure shall not discharge, diminish or penalty arising from such contest. Notwithstanding the foregoing, the creation relieve Deepwater of any liability for indemnification that it may have to such reserves or Indemnified Party hereunder, unless the furnishing contest of a claim is precluded as a result of such failure; provided, that any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof by Deepwater to such Indemnified Party pursuant hereto shall not be deferred, if, at deemed to constitute a waiver or release of any time the Property right or remedy (including any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger remedy of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If damages) that Deepwater may have against such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may beIndemnified Party.
Appears in 1 contract
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition Imposition, Permitted Debt or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (ia) no Event of Default shall exist and be continuing hereunder, (iib) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iiic) if neither Borrower nor Operating Lessee is not providing security as provided in clause (vid) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (ive) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (vf) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 Article VI or the right to full payment of any claims thereunder, and (vig) in the case of Impositions Impositions, Permitted Debt and Liens which are not bonded in excess of $1,000,000 2,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (Ai) the amount of Borrower’s obligations being contested plus (Bii) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.
Appears in 1 contract
Samples: Loan and Security Agreement (Ashford Hospitality Trust Inc)
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender Administrative Agent informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bondedfully bonded to the reasonable satisfaction of Administrative Agent, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 500,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Administrative Agent, Cash and Cash Equivalents or a Letter letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest, or, if the obligations being contested are less than $500,000, shall deliver a guaranty of the payment of such amounts from the Gurantor in a form reasonably satisfactory to Lender. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in LenderAdministrative Agent’s reasonable judgment, in imminent danger of being forfeited or lost or Lender Administrative Agent is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender Administrative Agent reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.
Appears in 1 contract
Samples: Loan and Security Agreement (Strategic Hotels & Resorts, Inc)
Contest. Nothing contained herein shall be deemed to require Borrower or any PropCo Subsidiary to pay, or cause to be paid, any Imposition or any Permitted Debt of the type described in clause (b) of the definition of “Permitted Debt” (any such Debt, “Contestable Debt”) or to satisfy any Lien, Lien or any item described in Section 16.1(d) or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower or a PropCo Subsidiary is in good faith, and by proper legal proceedings, proceedings where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding proceeding, (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender the Administrative Agent informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee or the applicable PropCo Subsidiary is not providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s the books of Borrower or such PropCo Subsidiary in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, or in the Proceeds Reserve Account pursuant to Section 9, as applicable, (iv) either such contest operates to suspend collection or enforcement enforcement, as the case may be, of the contested Imposition, Contestable Debt, item described in Section 16.1(d), Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower or any PropCo Subsidiary or other Person to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 9.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded and are in excess of Two Million Dollars ($1,000,000 2,000,000) individually, or in the aggregate, during such contest, Borrower, Borrower shall deposit with or deliver to Lender the Administrative Agent either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125110% of (A) the amount of Borrower’s the obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower shall, or shall cause the applicable PropCo Subsidiary to promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the affected Borrowing Base Property or any portion thereof shall be, in Lenderthe Administrative Agent’s reasonable judgment, in imminent danger of being forfeited or lost or any Lender or the Administrative Agent is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to BorrowerBorrower or the applicable PropCo Subsidiary, (a) provided no Event of Default has occurred and is continuing hereunder, the Administrative Agent shall disburse to Borrower or the Person entitled to such sums, the security provided therefor under this Section 10.3 and (b) Borrower shall deliver to Lender the Administrative Agent reasonable evidence of Borrower’s or the applicable PropCo Subsidiary’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be. Notwithstanding the foregoing, any contest conducted by the Master Lessee in accordance with the Master Lease will be deemed to satisfy the requirements of this Section 10.3, provided that any security deposited by Master Lessee pursuant to the provisions of the Master Lease in connection with such contest is delivered to the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Toys R Us Inc)
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faithfaith diligently contesting (including, and without limitation, by proper instituting appropriate legal proceedings, where appropriate, diligently contesting when necessary) the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceedingcontest, and during the pendency of such action or proceeding contest
(i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender Administrative Agent informed of the status of such contest at reasonable intervals, (iiiii) if neither Borrower nor Operating Lessee is not providing security as provided in clause (viiii) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iviii) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bondedfully bonded to the satisfaction of Administrative Agent, (viv) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (viv) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 500,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Administrative Agent Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest, or, if the obligations being contested are less than $500,000, may, in lieu of delivering such Cash or Cash Equivalents, deliver a guaranty of the payment of such amounts from the Guarantor in a form reasonably satisfactory to Administrative Agent. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in LenderAdministrative Agent’s reasonable judgment, in imminent danger of being forfeited or lost or Lender Administrative Agent is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall promptly deliver to Lender Administrative Agent reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.
Appears in 1 contract
Samples: Loan and Security Agreement (Morgans Hotel Group Co.)
Contest. Nothing contained herein (i) If a written Claim is made against any Indemnified Person, or if any proceeding shall be deemed commenced against such Indemnified Person (including a written notice of such proceeding), for any Impositions, such Indemnified Person shall promptly notify the Indemnity Provider in writing and shall not take action with respect to require Borrower to paysuch Claim or proceeding without the consent of the Indemnity Provider for thirty (30) days after the receipt of such notice by the Indemnity Provider; provided, however, that, in the case of any such Claim or cause proceeding, if action shall be required by law or regulation to be paidtaken prior to the end of such 30-day period, any Imposition such Indemnified Person shall, in such notice to the Indemnity Provider, inform the Indemnity Provider of such shorter period, and no action shall be taken with respect to such Claim or proceeding without the consent of the Indemnity Provider before seven (7) days before the end of such shorter period; provided, further, that the failure of such Indemnified Person to satisfy any Liengive the notices referred to this sentence shall not diminish the Indemnity Provider’s obligation hereunder except to the extent such failure precludes the Indemnity Provider from contesting such Claim.
(ii) If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to comply with any Legal Requirement or Insurance Requirementcommence such contest), so long as Borrower is the Indemnity Provider shall request in writing that such Indemnified Person contest such Imposition, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faithfaith conduct and control such contest (including, and without limitation, by proper legal proceedings, where appropriate, diligently contesting pursuit of appeals) relating to the validity, applicability or amount or application thereofof such Imposition (provided, provided however, that in each case(A) if such contest can be pursued independently from any other proceeding involving a tax liability of such Indemnified Person, the Indemnified Person, at the time of Indemnity Provider’s request, shall allow the commencement of any such action or proceeding, Indemnity Provider to conduct and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of control such contest at reasonable intervals, and (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (vB) in the case of any Insurance Requirementcontest, the failure Indemnified Person may request the Indemnity Provider to conduct and control such contest (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld, conditioned or delayed; provided, however, that any Indemnified Person may retain separate counsel at the expense of Borrower the Indemnity Provider in the event of a conflict)) by, in the sole discretion of the Person conducting and controlling such contest, (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to comply therewith obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time.
(iii) The party controlling any contest shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of such contest; provided, that all decisions ultimately shall be made in the sole discretion of the controlling party, except that the Indemnity Provider may not impair agree to any dismissal or settlement of, or other agreement in connection with, any claim without the validity prior written consent of such Indemnified Person, if such dismissal, settlement or agreement would require any admission or acknowledgment of any insurance required culpability or wrongdoing by such Indemnified Person or provide for any nonmonetary relief to be maintained performed by Borrower under such Indemnified Person. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the contest of any Imposition and may settle such contest if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Imposition (and any future Claim by any taxing authority, the contest of which is precluded by reason of such resolution of such contest) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 6.1 10.2 by way of indemnification or advance for the right to full payment of any claims thereunderamount regarding such Imposition other than expenses of such contest.
(iv) Notwithstanding the foregoing provisions of this Section 10.2, an Indemnified Person shall not be required to take any action and no Indemnity Provider shall be permitted to contest any Imposition in its own name or that of the Indemnified Person unless (A) the Indemnity Provider shall have agreed to pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with contesting such Imposition, including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements, (B) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of any Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (viC) in if such contest shall involve the case payment of Impositions and Liens which are not bonded in excess of $1,000,000 individually, the Imposition prior to or in during the aggregate, during such contest, Borrower, the Indemnity Provider shall deposit with or deliver provide to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit the Indemnified Person an interest-free advance in an amount equal to 125% of the Imposition that the Indemnified Person is required to pay (A) the amount of Borrower’s obligations being contested plus (B) any with no additional interest, charge, or penalty arising from net after-tax cost to such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.Indemnified Person),
Appears in 1 contract
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is not providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s 's books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 500,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s 's obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s 's reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s 's compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may be.
Appears in 1 contract
Samples: Loan and Security Agreement (American Financial Realty Trust)
Contest. Nothing contained herein (a) If an Indemnitee receives a written claim for any Tax for which Lessee would be required to pay an indemnity pursuant to Clause 5.7 or Clause 5.8, such Indemnitee shall notify Lessee promptly of such claim, provided that any failure to provide such notice will not relieve Lessee of any indemnification obligation pursuant to Clause 5.7 or Clause 5.8. If requested by Lessee in writing promptly after receipt of such Indemnitee's notice, such Indemnitee shall, upon receipt of indemnity satisfactory to it and at the expense of Lessee (including, without limitation, all costs, expenses, legal and accountants' fees and disbursements, and penalties, interest and additions to tax incurred in contesting such claim) in good faith contest or (if permitted by applicable Law) permit Lessee to contest such claim by (i) resisting payment thereof if practicable and appropriate, (ii) not paying the same except under protest if protest is necessary and proper, or (iii) if payment is made, using reasonable efforts to obtain a refund of such Taxes in appropriate administrative and judicial proceedings. Such Indemnitee shall determine the method of any contest conducted by such Indemnitee and (in good faith consultation with Lessee) control the conduct thereof. Lessee shall determine the method of any contest conducted by Lessee and (in good faith consultation with such Indemnitee) control the conduct thereof. Lessee shall pay in full all payments of Rent and other amounts payable pursuant to the Operative Documents, without reduction for or on account of any Tax, while such contest is continuing. Such Indemnitee shall not be required to contest, or to continue to contest, a claim for Taxes under this Clause 5.12 if (x) such contest would result in a risk of criminal penalties or of a sale, forfeiture or loss of, or the imposition of a Lien (other than a Permitted Lien) on, the Aircraft, or (y) Lessee shall not have furnished an opinion of independent tax counsel selected by such Indemnitee and reasonably satisfactory to Lessee, that a reasonable basis exists for such contest, or (z) a Default or an Event of Default shall be continuing (unless Lessee shall have provided security reasonably satisfactory to such Indemnitee securing Lessee's performance of its obligations under this Clause 5). If such Indemnitee contests any claim for Taxes by making a payment and seeking a refund thereof, then Lessee shall advance to such Indemnitee, on an interest-free basis, an amount equal to the Taxes to be paid by such Indemnitee in connection with the contest and shall indemnify such Indemnitee on an After-Tax Basis for any adverse tax consequences to such Indemnitee of such interest-free advance. Upon the final determination of any contest pursuant to this Clause 5.12 in respect of any Taxes for which Lessee shall have made an advance to such Indemnitee in accordance with the immediately preceding sentence, the amount of Lessee's obligation shall be determined as if such advance had not been made; any indemnity obligation of Lessee to such Indemnitee under this Clause 5 and such Indemnitee's obligation to repay the advance will be satisfied first by setoff against each other, and any difference owing by either party shall be paid within ten days after such final determination.
(b) If an Indemnitee obtains a refund of all or any part of any Taxes for which a full indemnity was paid by Lessee, such Indemnitee shall pay Lessee the amount of such refund, reduced by any Taxes imposed on such Indemnitee on receipt or accrual of such refund and increased by any Taxes saved by such Indemnitee by reason of the deductibility of such payment by such Indemnitee. If, in addition to such refund, such Indemnitee receives an amount of interest on such refund, such Indemnitee shall pay to Lessee the portion of such interest which is fairly attributable to such refund, reduced by any Taxes imposed on such Indemnitee on receipt or accrual of such interest and increased by any Taxes saved by reason of the deductibility of such payment by such Indemnitee. Such Indemnitee shall not be required to make any payment to Lessee pursuant to this Clause 5.12 if, and for so long as, an Event of Default shall have occurred and be continuing.
(c) Any Indemnitee in its sole discretion (by written notice to Lessee) may waive its rights to indemnification pursuant to Clause 5.7 with respect to any claim for any Tax and may refrain from contesting or continuing the contest of such claim, in which event Lessee shall have no obligation to indemnify such Indemnitee for the Taxes that are the subject of such claim. If an Indemnitee agrees to a settlement of any contest conducted pursuant to this Clause 5.11 without the prior written consent of Lessee, which consent shall not be unreasonably withheld, then Lessor shall be deemed to require Borrower have waived its rights to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is the indemnification provided for in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) no Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Lender informed of the status of such contest at reasonable intervals, (iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves Clause 5.7 with respect thereto are maintained on Borrower’s books in accordance with GAAP or in to the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either liability accepted in such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of any insurance required to be maintained by Borrower under Section 6.1 or the right to full payment of any claims thereunder, and (vi) in the case of Impositions and Liens which are not bonded in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrower, shall deposit with or deliver to Lender either Cash and Cash Equivalents or a Letter or Letters of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond or other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may besettlement.
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Samples: Aircraft Lease Agreement (Frontier Airlines Inc /Co/)
Contest. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any Legal Requirement or Insurance Requirement, so long as Borrower is in good faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendency of such action or proceeding (i) For purposes of this Agreement, a “Contest” is any audit, court proceeding or other dispute with respect to any Tax matter that affects the Company. Unless Purchaser has previously received written notice from Seller of the existence of such Contest, Purchaser shall promptly give written notice to Seller of the existence of any Contest relating to a Tax matter that is or may be Seller’s full or shared responsibility under this Agreement, but no Event failure to give such notice shall relieve Seller of Default any liability hereunder except to the extent, if any, that the rights of Seller with respect to such claim are actually prejudiced. Unless Seller has previously received written notice from Purchaser of the existence of such Contest, Seller shall exist and be continuing hereunder, promptly give written notice to Purchaser of the existence of any Contest.
(ii) Borrower Purchaser, on the one hand, and Seller on the other, agrees, in each case at no cost to the other party, to cooperate with the other and the other’s representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall keep Lender informed include, but not be limited to, making available to the other party, during normal business hours, all books, records, returns, documents, files, other information (including, without limitation working papers and schedules), officers or employees (without substantial interruption of the status of employment) or other relevant information necessary or useful in connection with any Contest requiring any such contest at reasonable intervalsbooks, records and files.
(iii) if neither Borrower nor Operating Lessee is providing security as provided in clause (vi) below, adequate reserves with respect thereto are maintained on Borrower’s books in accordance with GAAP or in the Tax Reserve Account or Insurance Reserve Account, as applicable, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or Legal Requirement and such contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, (v) in In the case of any Insurance Requirement, Contest relating to a Tax matter arising in a period ending on or before the failure of Borrower to comply therewith shall not impair the validity of Closing Date or any insurance other Contest for which Seller would be required to be maintained by Borrower under Section 6.1 or indemnify Purchaser in full pursuant to this Agreement, Seller shall have the right to full payment represent the Company’s interests, to employ counsel of its choice at its expense and to control the conduct of such Contest. Seller shall have the right to settle or dispose of any claims thereunderContest relating to such Tax matter; provided, however, that Seller shall consult with Purchaser regarding any such Contest and shall allow Purchaser to participate in any such proceeding and provided, further, that no settlement or other disposition of any claim for Tax which would adversely affect Purchaser or the Company in any taxable period ending after the Closing Date to any material extent (viincluding, but not limited to, the imposition of income tax deficiencies, the reduction of asset basis or cost adjustments and the reduction of loss or credit carryovers) in shall be agreed to without Purchaser’s prior written consent, which consent shall not be unreasonably withheld.
(iv) In the case of Impositions any Contest relating to a Tax Return for a Straddle Period (other than a Contest covered by Section 5.8(e)(iii), but only to the extent such Tax matter relates to Taxes for which Seller may be required to indemnify Purchaser pursuant to this Agreement, Purchaser and Liens which are not bonded Seller shall jointly represent their interests in excess of $1,000,000 individually, or in the aggregate, during such contest, Borrowerany Contest, shall deposit employ counsel of their mutual choice and shall cooperate with the other and the other’s representatives in a prompt and timely manner in connection with any Contest. The parties shall mutually agree on any settlement or deliver other disposition of the Contest. In the event Purchaser and Seller are unable to Lender either Cash and Cash Equivalents or a Letter or Letters agree regarding any aspect of Credit in an amount equal to 125% of (A) the amount of Borrower’s obligations being contested plus (B) any additional interest, charge, or penalty arising from such contest. Notwithstanding the foregoing, the creation conduct of any such reserves or Contest, the furnishing decision shall be made by the counsel employed to pursue such Contest on the basis of counsel’s good faith judgment regarding the course of action that would produce the overall lowest present value of Tax and litigation cost to the parties. Any such Contest expenses shall be shared by the parties to the extent they relate to a Tax matter, shall be borne by Purchaser and Seller in the same proportion as such related Taxes are borne economically by Purchaser and Seller.
(v) Purchaser shall have the right to control the conduct of any bond or Contest in its sole discretion with respect to any other security, Borrower promptly shall comply with any contested Legal Requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, in Lender’s reasonable judgment, in imminent danger of being forfeited or lost or Lender is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Borrower, Borrower shall deliver to Lender reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, Legal Requirements or Insurance Requirements, as the case may beTax matter.
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