Contests of Impositions. (i) If a written claim is made against any Indemnified Person or if any proceeding shall be commenced against such Indemnified Person (including a written notice of such proceeding), for any Impositions, such Indemnified Person shall promptly notify the Lessee in writing and shall not take action with respect to such claim or proceeding without the consent of the Lessee for thirty (30) days after the receipt of such notice by the Lessee; provided, however, that, in the case of any such claim or proceeding, if action shall be required by law or regulation to be taken prior to the end of such 30-day period, such Indemnified Person shall, in such notice to the Lessee, inform the Lessee of such shorter period, and no action shall be taken with respect to such claim or proceeding without the consent of the Lessee before two days before the end of such shorter period; provided, further, that the failure of such Indemnified Person to give the notices referred to in this sentence shall not diminish the Lessee's obligation hereunder except to the extent such failure precludes the Lessee from contesting all or part of 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 Lessee as required by law or regulation for the Indemnified Person to commence such contest), the Lessee shall request in writing that such Indemnified Person contest such Imposition, the Indemnified Person shall, at the expense of the Lessee, in good faith conduct and control such contest (including by pursuit of appeals) relating to the validity, applicability or amount of such Impositions (provided, however, that (A) if such contest involves a tax other than a tax on net income and can be pursued independently from any other proceeding involving a tax liability of such Indemnified Person, the Indemnified Person, at the Lessee's request, shall allow the Lessee to conduct and control such contest and (B) in the case of any contest, the Indemnified Person may request the Lessee to conduct and control such contest) 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, or (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings. (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. 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 Lessee that otherwise would be payable in respect of such claim and shall pay to the Lessee any amount previously paid or advanced by the Lessee pursuant to this SECTION 11.2 by way of indemnification or advance for the payment of an Imposition other than expenses of such contest. (iv) Notwithstanding the foregoing provisions of this SECTION 11.2, an Indemnified Person shall not be required to take any action and the Lessee shall not be permitted to contest any Impositions in its own name or that of the Indemnified Person unless (A) the Lessee shall have agreed to pay in writing 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 Impositions, including all reasonable legal, accounting and investigatory fees and disbursements and the contested claim if ultimately required to be paid, (B) in the case of a claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity exceeds $50,000, (C) 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 the Pledged Collateral, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such contest shall involve the payment of the Imposition prior to the contest, the Lessee 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), (E) the Lessee shall have provided to such Indemnified Person an opinion of independent tax counsel selected by the Lessee and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to contest such claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail), and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required 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 11.2, unless there shall have been a change in law (or interpretation thereof) and the Indemnified Person shall have received, at the Lessee's expense, an opinion of independent tax counsel selected by the Indemnified Person and reasonably acceptable to the Lessee stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest.
Appears in 1 contract
Contests of Impositions. (i) If a written claim is made against ----------------------- any Indemnified Person Indemnitee or if any proceeding shall be commenced against such Indemnified Person Indemnitee (including a written notice of such proceeding), for any Impositions, such Indemnified Person Indemnitee shall promptly notify the Lessee in writing and shall not take action with respect to such claim or proceeding without the consent of the Lessee for thirty (30) days after the receipt of such notice by the Lessee; provided, -------- however, that, in the case of any such claim or proceeding, if action shall be ------- required by law or regulation to be taken prior to the end of such 30-day period, such Indemnified Person Indemnitee shall, in such notice to the Lessee, inform the Lessee of such shorter period, and no action shall be taken with respect to such claim or proceeding without the consent of the Lessee before two (2) days before the end of such shorter period; provided, further, that the failure of such Indemnified Person -------- ------- Indemnitee to give the notices referred to in this sentence shall not diminish the Lessee's obligation hereunder except to the extent such failure precludes the Lessee from contesting all or part of such claim.
(ii) If, within thirty (30) days of receipt of such notice from the Indemnified Person Indemnitee (or such shorter period as the Indemnified Person Indemnitee has notified the Lessee as is required by law or regulation for the Indemnified Person Indemnitee to commence such contest), the Lessee shall request in writing that such Indemnified Person Indemnitee contest such Imposition, the Indemnified Person Indemnitee shall, at the expense of the Lessee, in good faith conduct and control such contest (including including, without limitation, by pursuit of appeals) relating to the validity, applicability or amount of such Impositions (provided, however, that (A) if such contest involves a -------- ------- tax other than a tax on net income and can be pursued independently from any other proceeding involving a an unindemnified tax liability of such Indemnified PersonIndemnitee, the Indemnified PersonIndemnitee, at the Lessee's request, shall allow the Lessee to conduct and control such contest and (B) in the case of any contest, the Indemnified Person Indemnitee may request the Lessee to conduct and control such contest) 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, or (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 Lessee 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 partyparty except that no decision shall be made to concede an indemnified issue without the prior consent of Lessee (which consent shall not be unreasonably withheld). The parties agree that an Indemnified Person Indemnitee 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 Indemnitee shall waive its rights to any indemnity from the Lessee that otherwise would be payable in respect of such claim (and any future claim by any taxing authority, the contest of which is precluded by reason of such resolution of such claim) and shall pay to the Lessee any amount previously paid or advanced by the Lessee pursuant to this SECTION 11.2 Section 13.5 by ------------ way of indemnification or advance for the payment of an Imposition other than expenses of such contest.
(iv) Notwithstanding the foregoing provisions of this SECTION 11.2Section ------- 13.5, an Indemnified Person Indemnitee shall not be required to take any action and the Lessee ---- shall not be permitted to contest any Impositions in its own name or that of the Indemnified Person Indemnitee unless (A) the Lessee shall have agreed such Imposition is subject to pay in writing indemnity hereunder and shall pay to such Indemnified Person Indemnitee on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person Indemnitee actually incurs in connection with contesting such Impositions, including including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements and the contested claim if ultimately required to be paiddisbursements, (B) in the case of a claim that must be pursued in the name of an Indemnified Person Indemnitee (or an Affiliate thereof), the amount of the potential indemnity (taking into account all similar or logically related claims that have been or could be raised in any audit involving such Indemnitee for which the Lessee may be liable to pay an indemnity under this Section 13.5) exceeds $50,00010,000, (C) the Indemnified Person ------------ Indemnitee 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 the Pledged CollateralProperty, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such contest shall involve the payment of the Imposition prior to the contest, the Lessee shall provide to the Indemnified Person Indemnitee an interest-free advance in an amount equal to the Imposition that the Indemnified Person Indemnitee is required to pay (with no additional net after-tax cost to such Indemnified PersonIndemnitee), (E) in the case of a claim that must be pursued in the name of an Indemnitee (or an Affiliate thereof), the Lessee shall have provided to such Indemnified Person Indemnitee an opinion of independent tax counsel selected by the Lessee Indemnitee and reasonably satisfactory to the Indemnified Person Lessee stating that a reasonable basis exists to contest such claim (or, in the case of an appeal of an adverse judicial determination, an opinion of such counsel to the effect that there is substantial authority for the position asserted in such appeal will more likely than not prevail), appeal) and (F) no Event of Default hereunder shall have occurred and be continuing. In no event shall an Indemnified Person Indemnitee be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person Indemnitee shall not be required 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 a contest completed in accordance with the contest provisions of this SECTION 11.2Section 13.5, unless there shall ------------ have been a change in law (or interpretation thereof) and the Indemnified Person Indemnitee shall have received, at the Lessee's expense, an opinion of independent tax counsel selected by the Indemnified Person Indemnitee and reasonably acceptable to the Lessee stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person Indemnitee will prevail in such contest.
Appears in 1 contract
Contests of Impositions. (i) If a written claim is made against any Indemnified Person Indemnitee or if any proceeding shall be commenced against such Indemnified Person Indemnitee (including a written notice of such proceeding), for any Impositions, such Indemnified Person Indemnitee shall promptly notify the Lessee in writing and shall not take action with respect to such claim or proceeding without the consent of the Lessee for thirty (30) days after the receipt of such notice by the Lessee; provided, however, that, in the case of any such claim or proceeding, if action shall be required by law or regulation to be taken prior to the end of such 30-day period, such Indemnified Person Indemnitee shall, in such notice to the Lessee, inform the Lessee of such shorter period, and no action shall be taken with respect to such claim or proceeding without the consent of the Lessee before two 2 days before the end of such shorter period; provided, further, that the failure of such Indemnified Person Indemnitee to give the notices referred to in this sentence shall not diminish the Lessee's obligation hereunder except to the extent such failure precludes the Lessee from contesting all or part of such claim.
(ii) If, within thirty (30) days of receipt of such notice from the Indemnified Person Indemnitee (or such shorter period as the Indemnified Person Indemnitee has notified the Lessee as is required by law or regulation for the Indemnified Person Indemnitee to commence such contest), the Lessee shall request in writing that such Indemnified Person Indemnitee contest such Imposition, the Indemnified Person Indemnitee shall, at the expense of the Lessee, in good faith conduct and control such contest (including including, without limitation, by pursuit of appeals) relating to the validity, applicability or amount of such Impositions (provided, however, that (A) if such contest involves a tax other than a tax on net income and can be pursued independently from any other proceeding involving a tax liability of such Indemnified PersonIndemnitee, the Indemnified PersonIndemnitee, at the Lessee's request, shall allow the Lessee to conduct and control such contest and (B) in the case of any contest, the Indemnified Person Indemnitee may request the Lessee to conduct and control such contest) 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, or (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 Lessee 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. The parties agree that an Indemnified Person Indemnitee 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 Indemnitee shall waive its rights to any indemnity from the Lessee that otherwise would be payable in respect of such claim (and any future claim by any taxing authority, the contest of which is precluded by reason of such resolution of such claim) and shall pay to the Lessee any amount previously paid or advanced by the Lessee pursuant to this SECTION 11.2 Section 13.5 by way of indemnification or advance for the payment of an Imposition other than expenses of such contest.
(iv) Notwithstanding the foregoing provisions of this SECTION 11.2Section 13.5, an Indemnified Person Indemnitee shall not be required to take any action and the Lessee shall not be permitted to contest any Impositions in its own name or that of the Indemnified Person Indemnitee unless (A) the Lessee shall have agreed to pay in writing and shall pay to such Indemnified Person Indemnitee on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person Indemnitee actually incurs in connection with contesting such Impositions, including including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements and the contested claim if ultimately required to be paiddisbursements, (B) in the case of a claim that must be pursued in the name of an Indemnified Person Indemnitee (or an Affiliate thereof), the amount of the potential indemnity (taking into account all similar or logically related claims that have been or could be raised in any audit involving such Indemnitee for which the Lessee may be liable to pay an indemnity under this Section 13.5) exceeds $50,000100,000, (C) the Indemnified Person Indemnitee 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 the Pledged CollateralProperty, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such contest shall involve require the payment of the Imposition prior to the contest, the Lessee shall provide to the Indemnified Person Indemnitee an interest-free advance in an amount equal to the such required Imposition that the Indemnified Person Indemnitee is required to pay (with no additional net after-tax cost to such Indemnified PersonIndemnitee), (E) in the case of a claim that must be pursued in the name of an Indemnitee (or an Affiliate thereof), the Lessee shall have provided to such Indemnified Person Indemnitee an opinion of independent tax counsel selected by the Lessee Indemnitee and reasonably satisfactory to the Indemnified Person Lessee stating that a reasonable basis exists to contest such claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that there is substantial authority for the position asserted in such appeal will more likely than not prevail), appeal) and (F) no Event of Default hereunder shall have occurred and be continuing. In no event shall an Indemnified Person Indemnitee be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person Indemnitee shall not be required 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 11.2Section 13.5, unless there shall have been a change in law (or interpretation thereof) and the Indemnified Person Indemnitee shall have received, at the Lessee's expense, an opinion of independent tax counsel selected by the Indemnified Person Indemnitee and reasonably acceptable to the Lessee stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person Indemnitee will prevail in such contest.
Appears in 1 contract
Contests of Impositions. (i) If a written claim is made against any Indemnified Person Indemnitee or if any proceeding shall be commenced against such Indemnified Person Indemnitee (including a written notice of such proceeding), for any Impositions, such Indemnified Person Indemnitee shall promptly notify the Lessee in writing and shall not take action with respect to such claim or proceeding without the consent of the Lessee for thirty (30) days after the receipt of such notice by the Lessee; provided, however, that, in the case of any such claim or proceeding, if action shall be required by law or regulation to be taken prior to the end of such 30-day period, such Indemnified Person Indemnitee shall, in such notice to the Lessee, inform the Lessee of such shorter period, and no action shall be taken with respect to such claim or proceeding without the consent of the Lessee before two 2 days before the end of such shorter period; provided, further, that the failure of such Indemnified Person Indemnitee to give the notices referred to in this sentence shall not diminish the Lessee's obligation hereunder except to the extent such failure precludes the Lessee from contesting all or part of such claim.
. (ii) If, within thirty (30) days of receipt of such notice from the Indemnified Person Indemnitee (or such shorter period as the Indemnified Person Indemnitee has notified the Lessee as is required by law or regulation for the Indemnified Person Indemnitee to commence such contest), the Lessee shall request in writing that such Indemnified Person Indemnitee contest such Imposition, the Indemnified Person Indemnitee shall, at the expense of the Lessee, in good faith conduct and control such contest (including including, without limitation, by pursuit of appeals) relating to the validity, applicability or amount of such Impositions (provided, however, that (A) if such contest involves a tax other than a tax on net income and can be pursued independently from any other proceeding involving a tax liability of such Indemnified PersonIndemnitee, the Indemnified PersonIndemnitee, at the Lessee's request, shall allow the Lessee to conduct and control such contest and (B) in the case of any contest, the Indemnified Person Indemnitee may request the Lessee to conduct and control such contest) 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, or (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings.
, or (iii4) The party controlling any contest shall consult in good faith with the non-controlling party and shall keep the non-controlling party taking such other action as is 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. 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 Lessee that otherwise would be payable in respect of such claim and shall pay to the Lessee any amount previously paid or advanced requested by the Lessee pursuant from time to this SECTION 11.2 by way of indemnification or advance for the payment of an Imposition other than expenses of such contesttime.
(iv) Notwithstanding the foregoing provisions of this SECTION 11.2, an Indemnified Person shall not be required to take any action and the Lessee shall not be permitted to contest any Impositions in its own name or that of the Indemnified Person unless (A) the Lessee shall have agreed to pay in writing 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 Impositions, including all reasonable legal, accounting and investigatory fees and disbursements and the contested claim if ultimately required to be paid, (B) in the case of a claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity exceeds $50,000, (C) 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 the Pledged Collateral, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such contest shall involve the payment of the Imposition prior to the contest, the Lessee 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), (E) the Lessee shall have provided to such Indemnified Person an opinion of independent tax counsel selected by the Lessee and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to contest such claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail), and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required 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 11.2, unless there shall have been a change in law (or interpretation thereof) and the Indemnified Person shall have received, at the Lessee's expense, an opinion of independent tax counsel selected by the Indemnified Person and reasonably acceptable to the Lessee stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest.
Appears in 1 contract
Samples: Participation Agreement (Vitesse Semiconductor Corp)
Contests of Impositions. (i) If a written claim is made against any Indemnified Person Impositions Indemnitee or if any proceeding shall be commenced against such Indemnified Person Impositions Indemnitee (including a written notice of such proceeding), for any Impositions, such Indemnified Person Impositions Indemnitee shall promptly notify the Lessee Lessees in writing and shall not take action with respect to such claim or proceeding without the consent of the Lessee Lessees for thirty (30) days after the receipt of such notice by the LesseeLessees; provided, however, that, in the case of any such claim or proceeding, if action shall be required by law or regulation to be taken prior to the end of such 30-day period, such Indemnified Person Impositions Indemnitee shall, in such notice to the LesseeLessees, inform the Lessee of such shorter periodLessees, and no action shall be taken with respect to such claim or proceeding without the consent of the Lessee before two days Lessees before the end termination of such shorter period; provided, further, that the failure of such Indemnified Person Impositions Indemnitee to give the notices referred to in this sentence shall not diminish the Lessee's Lessees' obligation hereunder except to the extent such failure precludes the Lessee Lessees from contesting all or part of such claim.
(ii) If, within thirty (30) days of receipt of such notice from the Indemnified Person Impositions Indemnitee (or such shorter period as the Indemnified Person has notified the Lessee as Impositions Indemnitee is required by law or regulation for the Indemnified Person Impositions Indemnitee to commence such contest), the Lessee Lessees shall request in writing that such Indemnified Person Impositions Indemnitee contest such Imposition, the Indemnified Person Impositions Indemnitee shall, at the expense of the LesseeLessees, in good faith conduct and control such contest (including including, without limitation, by pursuit of appeals) relating to the validity, applicability or amount of such Impositions (provided, however, that (A) if such contest involves a tax other than a tax on net income and can be pursued independently from any other proceeding involving a tax liability of such Indemnified PersonImpositions Indemnitee, the Indemnified PersonImpositions Indemnitee, at the Lessee's Lessees' request, shall allow the Lessee Lessees to conduct and control such contest and (B) in the case of any contest, the Indemnified Person Impositions Indemnitee may request the Lessee Lessees to conduct and control such contest) 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, or (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 Lessees 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-non- controlling party reasonably informed as to the conduct of such contest; provided, provided that all decisions ultimately shall be made in the sole discretion of the controlling party. The parties agree that an Indemnified Person Impositions Indemnitee 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 Impositions Indemnitee shall waive its rights to any indemnity from the Lessee Lessees that otherwise would be payable in respect of such claim (and any future claim by any taxing authority with respect to other taxable periods that are based, in whole or in part, upon the resolution of such claim) and shall pay to the Lessee Lessees any amount previously paid or advanced by the Lessee Lessees pursuant to this SECTION 11.2 Section 13.02 by way of indemnification or advance for the payment of an Imposition other than expenses of such contestImposition.
(iv) Notwithstanding the foregoing provisions of this SECTION 11.2Section 13.02, an Indemnified Person Impositions Indemnitee shall not be required to take any action and the Lessee Lessees shall not be permitted to contest any Impositions in its own name or that of the Indemnified Person Impositions Indemnitee unless (A) the Lessee Lessees shall have agreed to pay in writing and shall pay to such Indemnified Person Impositions Indemnitee on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person Impositions Indemnitee actually incurs in connection with contesting such Impositions, including including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements and the contested claim if ultimately required to be paiddisbursements, (B) in the case of a claim that must be pursued in the name of an Indemnified Person Impositions Indemnitee (or an Affiliate thereof), the amount of the potential indemnity (taking into account all similar or logically related claims that have been or could be raised in any audit involving such Impositions Indemnitee) for which the Lessees may be liable to pay an indemnity under this Section 13.02 exceeds $50,0001,000,000, (C) the Indemnified Person Impositions Indemnitee 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 the Pledged CollateralProperty, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such contest shall involve the payment of the Imposition prior to the contest, the Lessee Lessees shall provide to the Indemnified Person Impositions Indemnitee an interest-free advance in an amount equal to the Imposition that the Indemnified Person Impositions Indemnitee is required to pay (with no additional net after-tax cost to such Indemnified PersonImpositions Indemnitee), (E) in the Lessee case of a claim that must be pursued in the name of an Impositions Indemnitee (or an Affiliate thereof), the Lessees shall have provided to such Indemnified Person Impositions Indemnitee an opinion of independent tax counsel selected by the Lessee Impositions Indemnitee and reasonably satisfactory to the Indemnified Person Lessees stating that a reasonable basis exists to contest such claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that there is substantial authority for the position asserted in such appeal will more likely than not prevail), appeal) and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person Impositions Indemnitee be required to appeal an adverse judicial determination to the United States State Supreme Court. In addition, an Indemnified Person Impositions Indemnitee shall not be required 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 11.2Section 13.02, unless there shall have been a change in law (or interpretation thereof) and the Indemnified Person Impositions Indemnitee shall have received, at the Lessee's Lessees' expense, an opinion of independent tax counsel selected by the Indemnified Person Impositions Indemnitee and reasonably acceptable to the Lessee Lessees stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person Impositions Indemnitee will prevail in such contest.
Appears in 1 contract
Contests of Impositions. (i) If a written claim is made against any Indemnified Person Indemnitee or if any proceeding shall be commenced against such Indemnified Person Indemnitee (including a written notice of such proceeding), for any Impositions, such Indemnified Person Indemnitee shall promptly notify the Lessee in writing and shall not take action with respect to such claim or proceeding without the consent of the Lessee for thirty (30) days after the receipt of such notice by the Lessee; provided, however, that, in the case of any such claim or proceeding, if action shall be required by law or regulation to be taken prior to the end of such 30-day period, such Indemnified Person Indemnitee shall, in such notice to the Lessee, inform the Lessee of such shorter period, and no action shall be taken with respect to such claim or proceeding without the consent of the Lessee before two 2 days before the end of such shorter period; provided, further, that the failure of such Indemnified Person Indemnitee to give the notices referred to in this sentence shall not diminish the Lessee's obligation hereunder except to the extent such failure precludes the Lessee from contesting all or part of such claim.
(ii) If, within thirty (30) days of receipt of such notice from the Indemnified Person Indemnitee (or such shorter period as the Indemnified Person Indemnitee has notified the Lessee as is required by law or regulation for the Indemnified Person Indemnitee to commence such contest), the Lessee shall request in writing that such Indemnified Person Indemnitee contest such Imposition, the Indemnified Person Indemnitee shall, at the expense of the Lessee, in good faith conduct and control such contest (including including, without limitation, by pursuit of appeals) relating to the validity, applicability or amount of such Impositions (provided, however, that (A) if such contest involves a tax other than a tax on net income and can be pursued independently from any other proceeding involving a tax liability of such Indemnified PersonIndemnitee, the Indemnified PersonIndemnitee, at the Lessee's request, shall allow the Lessee to conduct and control such contest and (B) in the case of any contest, the Indemnified Person Indemnitee may request the Lessee to conduct and control such contest) 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, or (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 Lessee 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. The parties agree that an Indemnified Person Indemnitee 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 Indemnitee shall waive its rights to any indemnity from the Lessee that otherwise would be payable in respect of such claim (and any future claim by any taxing authority, the contest of which is precluded by reason of such resolution of such claim) and shall pay to the Lessee any amount previously paid or advanced by the Lessee pursuant to this SECTION 11.2 Section 13.5 by way of indemnification or advance for the payment of an Imposition other than expenses of such contest.
(iv) Notwithstanding the foregoing provisions of this SECTION 11.2Section 13.5, an Indemnified Person Indemnitee shall not be required to take any action and the Lessee shall not be permitted to contest any Impositions in its own name or that of the Indemnified Person Indemnitee unless (A) the Lessee shall have agreed such Imposition is subject to pay in writing indemnity hereunder and shall pay to such Indemnified Person Indemnitee on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person Indemnitee actually incurs in connection with contesting such Impositions, including including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements and the contested claim if ultimately required to be paiddisbursements, (B) in the case of a claim that must be pursued in the name of an Indemnified Person Indemnitee (or an Affiliate thereof), the amount of the potential indemnity (taking into account all similar or logically related claims that have been or could be raised in any audit involving such Indemnitee for which the Lessee may be liable to pay an indemnity under this Section 13.5) exceeds $50,000100,000, (C) the Indemnified Person Indemnitee 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 the Pledged CollateralProperty, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such contest shall involve the payment of the Imposition prior to the contest, the Lessee shall provide to the Indemnified Person Indemnitee an interest-free advance in an amount equal to the Imposition that the Indemnified Person Indemnitee is required to pay (with no additional net after-tax cost to such Indemnified PersonIndemnitee), (E) in the case of a claim that must be pursued in the name of an Indemnitee (or an Affiliate thereof), the Lessee shall have provided to such Indemnified Person Indemnitee an opinion of independent tax counsel selected by the Lessee Indemnitee and reasonably satisfactory to the Indemnified Person Lessee stating that a reasonable basis exists to contest such claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that there is substantial authority for the position asserted in such appeal will more likely than not prevail), appeal) and (F) no Event of Default hereunder shall have occurred and be continuing. In no event shall an Indemnified Person Indemnitee be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person Indemnitee shall not be required 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 11.2Section 13.5, unless there shall have been a change in law (or interpretation thereof) and the Indemnified Person Indemnitee shall have received, at the Lessee's expense, an opinion of independent tax counsel selected by the Indemnified Person Indemnitee and reasonably acceptable to the Lessee stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person Indemnitee will prevail in such contest.
Appears in 1 contract
Contests of Impositions. (i) If a written claim is made against any Indemnified Person or if any proceeding shall be commenced against such Indemnified Person (including a written notice of such proceeding), for any Impositions, such Indemnified Person shall promptly notify the Lessee in writing and shall not take action with respect to such claim or proceeding without the consent of the Lessee for thirty (30) days after the receipt of such notice by the Lessee; provided, however, that, in the case of any such claim or proceeding, if action shall be required by law or regulation to be taken prior to the end of such 30-day period, such Indemnified Person shall, in such notice to the Lessee, inform the Lessee of such shorter period, and no action shall be taken with respect to such claim or proceeding without the consent of the Lessee before two days before the end of such shorter period; provided, further, that the failure of such Indemnified Person to give the notices referred to in this sentence shall not diminish the Lessee's obligation hereunder except to the extent such failure precludes the Lessee from contesting all or part of such claim.
(ii) . - If, within thirty (30) days of receipt of after such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Lessee as required by law or regulation for the Indemnified Person to commence such contest), the Lessee shall request in writing that such Indemnified Person contest such Imposition, the Indemnified Person shall, at the expense of the Lessee, in good faith conduct and control such contest (including including, without limitation, by pursuit of appeals) relating to the validity, applicability or amount of such Impositions (provided, however, that (A) if such contest involves a tax other than a tax on net income and can be pursued independently from any other proceeding involving a tax liability of such Indemnified Person, the Indemnified Person, at the Lessee's request, shall allow the Lessee to conduct and control such contest and (B) in the case of any contest, the Indemnified Person may request the Lessee to conduct and control such contest) 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, or (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings.
(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. 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 Lessee that otherwise would be payable in respect of such claim and shall pay to the Lessee any amount previously paid or advanced by the Lessee pursuant to this SECTION 11.2 by way of indemnification or advance for the payment of an Imposition other than expenses of such contest.
(iv) Notwithstanding the foregoing provisions of this SECTION 11.2, an Indemnified Person shall not be required to take any action and the Lessee shall not be permitted to contest any Impositions in its own name or that of the Indemnified Person unless (A) the Lessee shall have agreed to pay in writing 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 Impositions, including all reasonable legal, accounting and investigatory fees and disbursements and the contested claim if ultimately required to be paid, (B) in the case of a claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity exceeds $50,000, (C) 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 the Pledged Collateral, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such contest shall involve the payment of the Imposition prior to the contest, the Lessee 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), (E) the Lessee shall have provided to such Indemnified Person an opinion of independent tax counsel selected by the Lessee and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to contest such claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail), and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required 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 11.2, unless there shall have been a change in law (or interpretation thereof) and the Indemnified Person shall have received, at the Lessee's expense, an opinion of independent tax counsel selected by the Indemnified Person and reasonably acceptable to the Lessee stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest.
Appears in 1 contract
Contests of Impositions. (i) If a written claim is made against any Indemnified Person Indemnitee or if any proceeding shall be commenced against such Indemnified Person Indemnitee (including a written notice of such proceeding), for any Impositions, such Indemnified Person Indemnitee shall promptly notify the Lessee in writing and shall not take action with respect to such claim or proceeding without the consent of the Lessee for thirty (30) days after the receipt of such notice by the Lessee; provided, however, that, in the case of any such claim or proceeding, if action shall be required by law or regulation to be taken prior to the end of such 30-day period, such Indemnified Person Indemnitee shall, in such notice to the Lessee, inform the Lessee of such shorter period, and no action shall be taken with respect to such claim or proceeding without the consent of the Lessee before two 2 days before the end of such shorter period; provided, further, that the failure of such Indemnified Person Indemnitee to give the notices referred to in this sentence shall not diminish the Lessee's obligation hereunder except to the extent such failure precludes the Lessee from contesting all or part of such claim.
(ii) If, within thirty (30) days of receipt of such notice from the Indemnified Person Indemnitee (or such shorter period as the Indemnified Person Indemnitee has notified the Lessee as is required by law or regulation for the Indemnified Person Indemnitee to commence such contest), the Lessee shall request in writing that such Indemnified Person Indemnitee contest such Imposition, the Indemnified Person Indemnitee shall, at the expense of the Lessee, in good faith conduct and control such contest (including including, without limitation, by pursuit of appeals) relating to the validity, applicability or amount of such Impositions (provided, however, that (A) if such contest involves a tax other than a tax on net income and can be pursued independently from any other proceeding involving a an unindemnified tax liability of such Indemnified PersonIndemnitee, the Indemnified PersonIndemnitee, at the Lessee's request, shall allow the Lessee to conduct and control such contest and (B) in the case of any contest, the Indemnified Person Indemnitee may request the Lessee to conduct and control such contest) 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, or (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 Lessee 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 partyparty except that no decision shall be made to concede an indemnified issue without the prior consent of Lessee (which consent shall not be unreasonably withheld). The parties agree that an Indemnified Person Indemnitee 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 Indemnitee shall waive its rights to any indemnity from the Lessee that otherwise would be payable in respect of such claim (and any future claim by any taxing authority, the contest of which is precluded by reason of such resolution of such claim) and shall pay to the Lessee any amount previously paid or advanced by the Lessee pursuant to this SECTION 11.2 Section 13.5 by way of indemnification or advance for the payment of an Imposition other than expenses of such contest.
(iv) Notwithstanding the foregoing provisions of this SECTION 11.2Section 13.5, an Indemnified Person Indemnitee shall not be required to take any action and the Lessee shall not be permitted to contest any Impositions in its own name or that of the Indemnified Person Indemnitee unless (A) the Lessee shall have agreed such Imposition is subject to pay in writing indemnity hereunder and shall pay to such Indemnified Person Indemnitee on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person Indemnitee actually incurs in connection with contesting such Impositions, including including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements and the contested claim if ultimately required to be paiddisbursements, (B) in the case of a claim that must be pursued in the name of an Indemnified Person Indemnitee (or an Affiliate thereof), the amount of the potential indemnity (taking into account all similar or logically related claims that have been or could be raised in any audit involving such Indemnitee for which the Lessee may be liable to pay an indemnity under this Section 13.5) exceeds $50,00010,000, (C) the Indemnified Person Indemnitee 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 the Pledged CollateralProperty, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such contest shall involve the payment of the Imposition prior to the contest, the Lessee shall provide to the Indemnified Person Indemnitee an interest-free advance in an amount equal to the Imposition that the Indemnified Person Indemnitee is required to pay (with no additional net after-tax cost to such Indemnified PersonIndemnitee), (E) in the case of a claim that must be pursued in the name of an Indemnitee (or an Affiliate thereof), the Lessee shall have provided to such Indemnified Person Indemnitee an opinion of independent tax counsel selected by the Lessee Indemnitee and reasonably satisfactory to the Indemnified Person Lessee stating that a reasonable basis exists to contest such claim (or, in the case of an appeal of an adverse judicial determination, an opinion of such counsel to the effect that there is substantial authority for the position asserted in such appeal will more likely than not prevail), appeal) and (F) no Event of Default hereunder shall have occurred and be continuing. In no event shall an Indemnified Person Indemnitee be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person Indemnitee shall not be required 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 a contest completed in accordance with the contest provisions of this SECTION 11.2Section 13.5, unless there shall have been a change in law (or interpretation thereof) and the Indemnified Person Indemnitee shall have received, at the Lessee's expense, an opinion of independent tax counsel selected by the Indemnified Person Indemnitee and reasonably acceptable to the Lessee stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person Indemnitee will prevail in such contest.
Appears in 1 contract
Contests of Impositions. (i) If a written claim is made against any Indemnified Person Indemnitee or if any proceeding shall be commenced against such Indemnified Person Indemnitee (including a written notice of such proceeding), for any Impositions, such Indemnified Person Indemnitee shall promptly notify the Lessee in writing and shall not take action with respect to such claim or proceeding without the consent of the Lessee for thirty (30) days after the receipt of such notice by the Lessee; provided, however, that, in the case of any such claim or proceeding, if action shall be required by law or regulation to be taken prior to the end of such 30-day thirty (30)-day period, such Indemnified Person Indemnitee shall, in such notice to the Lessee, inform the Lessee of such shorter period, and no action shall be taken with respect to such claim or proceeding without the consent of the Lessee before two (2) days before the end of such shorter period; provided, further, that the failure of such Indemnified Person Indemnitee to give the notices referred to in this sentence shall not diminish the Lessee's obligation hereunder except to the extent such failure precludes the Lessee from contesting all or part of such claim.
(ii) If, within thirty (30) days of receipt of such notice from the Indemnified Person Indemnitee (or such shorter period as the Indemnified Person Indemnitee has notified the Lessee as is required by law or regulation for the Indemnified Person Indemnitee to commence such contest), the Lessee shall request in writing that such Indemnified Person Indemnitee contest such Imposition, the Indemnified Person Indemnitee shall, at the expense of the Lessee, in good faith conduct and control such contest (including including, without limitation, by pursuit of appeals) relating to the validity, applicability or amount of such Impositions (provided, however, that (A) if such contest involves a tax other than a tax on net income and can be pursued independently from any other proceeding involving a tax liability of such Indemnified PersonIndemnitee, the Indemnified PersonIndemnitee, at the Lessee's request, shall allow the Lessee to conduct and control such contest and (B) in the case of any contest, the Indemnified Person Indemnitee may request the Lessee to conduct and control such contest) 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, or (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 Lessee 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. The parties agree that an Indemnified Person Indemnitee 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 Indemnitee shall waive its rights to any indemnity from the Lessee that otherwise would be payable in respect of such claim (and any future claim by any taxing authority, the contest of which is precluded by reason of such resolution of such claim) and shall pay to the Lessee any amount previously paid or advanced by the Lessee pursuant to this SECTION 11.2 Section 13.5 by way of indemnification or advance for the payment of an Imposition other than expenses of such contest.
(iv) Notwithstanding the foregoing provisions of this SECTION 11.2Section 13.5, an Indemnified Person Indemnitee shall not be required to take any action and the Lessee shall not be permitted to contest any Impositions in its own name or that of the Indemnified Person Indemnitee unless (A) the Lessee shall have agreed to pay in writing and shall pay to such Indemnified Person Indemnitee on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person Indemnitee actually incurs in connection with contesting such Impositions, including including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements and the contested claim if ultimately required to be paiddisbursements, (B) in the case of a claim that must be pursued in the name of an Indemnified Person Indemnitee (or an Affiliate affiliate thereof), the amount of the potential indemnity (taking into account all similar or logically related claims that have been or could be raised in any audit involving such Indemnitee for which the Lessee may be liable to pay an indemnity under this Section 13.5) exceeds $50,000100,000, (C) the Indemnified Person Indemnitee 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 the Pledged CollateralProperty, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such contest shall involve the payment of the Imposition prior to the contest, the Lessee shall provide to the Indemnified Person Indemnitee an interest-–free advance in an amount equal to the Imposition that the Indemnified Person Indemnitee is required to pay (with no additional net after-–tax cost to such Indemnified PersonIndemnitee), (E) in the case of a claim that must be pursued in the name of an Indemnitee (or an affiliate thereof), the Lessee shall have provided to such Indemnified Person Indemnitee an opinion of independent tax counsel selected by the Lessee Indemnitee and reasonably satisfactory to the Indemnified Person Lessee stating that a reasonable basis exists to contest such claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that there is substantial authority for the position asserted in such appeal will more likely than not prevail), appeal) and (F) no Event of Default hereunder shall have occurred and be continuing. In no event shall an Indemnified Person Indemnitee be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person Indemnitee shall not be required to contest any claim in its name (or that of an Affiliateaffiliate) 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 11.2Section 13.5, unless there shall have been a change in law (or interpretation thereof) and the Indemnified Person Indemnitee shall have received, at the Lessee's expense, an opinion of independent tax counsel selected by the Indemnified Person Indemnitee and reasonably acceptable to the Lessee stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person Indemnitee will prevail in such contest.
Appears in 1 contract
Samples: Participation Agreement (Yahoo Inc)
Contests of Impositions. (i) If a written claim is made against any Indemnified Person Indemnitee or if any proceeding shall be commenced against such Indemnified Person Indemnitee (including a written notice of such proceeding), for any Impositions, such Indemnified Person Indemnitee shall promptly notify the Lessee in writing and shall not take action with respect to such claim or proceeding without the consent of the Lessee for thirty (30) days after the receipt of such notice by the Lessee; provided, however, that, in the case of any such claim or proceeding, if action shall be required by law or regulation to be taken prior to the end of such 30-day period, such Indemnified Person Indemnitee shall, in such notice to the Lessee, inform the Lessee of such shorter period, and no action shall be taken with respect to such claim or proceeding without the consent of the Lessee before two (2) days before the end of such shorter period; provided, further, that the failure of such Indemnified Person Indemnitee to give the notices referred to in this sentence shall not diminish the Lessee's obligation hereunder except to the extent such failure precludes the Lessee from contesting all or part of such claim.
. (ii) If, within thirty (30) days of receipt of such notice from the Indemnified Person Indemnitee (or such shorter period as the Indemnified Person Indemnitee has notified the Lessee as is required by law or regulation for the Indemnified Person Indemnitee to commence such contest), the Lessee shall request in writing that such Indemnified Person Indemnitee contest such Imposition, the Indemnified Person Indemnitee shall, at the expense of the Lessee, in good faith conduct and control such contest (including including, without limitation, by pursuit of appeals) relating to the validity, applicability or amount of such Impositions (provided, however, that (A) if such contest involves a tax other than a tax on net income and can be pursued independently from any other proceeding involving a an unindemnified tax liability of such Indemnified PersonIndemnitee, the Indemnified PersonIndemnitee, at the Lessee's request, shall allow the Lessee to conduct and control such contest and (B) in the case of any contest, the Indemnified Person Indemnitee may request the Lessee to conduct and control such contest) 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, or (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings.
(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. 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 Lessee that otherwise would be payable in respect of such claim and shall pay to the Lessee any amount previously paid or advanced by the Lessee pursuant to this SECTION 11.2 by way of indemnification or advance for the payment of an Imposition other than expenses of such contest.
(iv) Notwithstanding the foregoing provisions of this SECTION 11.2, an Indemnified Person shall not be required to take any action and the Lessee shall not be permitted to contest any Impositions in its own name or that of the Indemnified Person unless (A) the Lessee shall have agreed to pay in writing 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 Impositions, including all reasonable legal, accounting and investigatory fees and disbursements and the contested claim if ultimately required to be paid, (B) in the case of a claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity exceeds $50,000, (C) 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 the Pledged Collateral, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D4) if taking such contest shall involve the payment of the Imposition prior other action as is reasonably requested by Lessee from time to the contest, the Lessee 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), (E) the Lessee shall have provided to such Indemnified Person an opinion of independent tax counsel selected by the Lessee and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to contest such claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail), and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required 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 11.2, unless there shall have been a change in law (or interpretation thereof) and the Indemnified Person shall have received, at the Lessee's expense, an opinion of independent tax counsel selected by the Indemnified Person and reasonably acceptable to the Lessee stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contesttime.
Appears in 1 contract
Contests of Impositions. (i) If a written claim is made against any Indemnified Person or if any proceeding shall be commenced against such Indemnified Person (including a written notice of such proceeding), for any Impositions, such Indemnified Person shall promptly notify the Lessee in writing and shall not take action with respect to such claim or proceeding without the consent of the Lessee for thirty (30) days after the receipt of such notice by the Lessee; provided, however, that, in the case of any such claim or proceeding, if action shall be required by law or regulation to be taken prior to the end of such 30-day period, such Indemnified Person shall, in such notice to the Lessee, inform the Lessee of such shorter period, and no action shall be taken with respect to such claim or proceeding without the consent of the Lessee before two days before the end of such shorter period; provided, further, that the failure of such Indemnified Person to give the notices referred to in this sentence shall not diminish the Lessee's obligation hereunder except to the extent such failure precludes the Lessee from contesting all or part of such claim.
(ii) . If, within thirty (30) days of receipt of after such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Lessee as required by law or regulation for the Indemnified Person to commence such contest), the Lessee shall request in writing that such Indemnified Person contest such Imposition, the Indemnified Person shall, at the expense of the Lessee, in good faith conduct and control such contest (including including, without limitation, by pursuit of appeals) relating to the validity, applicability or amount of such Impositions (provided, however, that (A) if such contest involves a tax other than a tax on net income and can be pursued independently from any other proceeding involving a tax liability of such Indemnified Person, the Indemnified Person, at the Lessee's request, shall allow the Lessee to conduct and control such contest and (B) in the case of any contest, the Indemnified Person may request the Lessee to conduct and control such contest) 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, or (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings.
(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. 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 Lessee that otherwise would be payable in respect of such claim and shall pay to the Lessee any amount previously paid or advanced by the Lessee pursuant to this SECTION 11.2 Section 12.2 by way of indemnification or advance for the payment of an Imposition other than expenses of such contest.
(iv) . Notwithstanding the foregoing provisions of this SECTION 11.2Section 12.2, an Indemnified Person shall not be required to take any action and the Lessee shall not be permitted to contest any Impositions in its own name or that of the Indemnified Person unless (A) the Lessee shall have agreed to pay in writing 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 Impositions, including including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements and the contested claim if ultimately required to be paid, (B) in the case of a claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity exceeds $50,000, (C) 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 the Property or the Pledged Collateral, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such contest shall involve the payment of the Imposition prior to the contest, the Lessee 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), (E) the Lessee shall have provided to such Indemnified Person an opinion of independent tax counsel selected by the Lessee and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to contest such claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail), and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required 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 11.2Section 12.2, unless there shall have been a change in law (or interpretation thereof) and the Indemnified Person shall have received, at the Lessee's expense, an opinion of independent tax counsel selected by the Indemnified Person and reasonably acceptable to the Lessee stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest.
Appears in 1 contract
Contests of Impositions. (i) If a written claim is made against ----------------------- any Indemnified Person Indemnitee or if any proceeding shall be commenced against such Indemnified Person Indemnitee (including a written notice of such proceeding), for any Impositions, such Indemnified Person Indemnitee shall promptly notify the Lessee in writing and shall not take action with respect to such claim or proceeding without the consent of the Lessee for thirty (30) days after the receipt of such notice by the Lessee; provided, however, that, in the case of any such claim or proceeding, if action shall be required by law or regulation to be taken prior to the end of such 30-day period, such Indemnified Person Indemnitee shall, in such notice to the Lessee, inform the Lessee of such shorter period, and no action shall be taken with respect to such claim or proceeding without the consent of the Lessee before two 2 days before the end of such shorter period; provided, further, that the failure of such Indemnified Person Indemnitee to give the notices referred to in this sentence shall not diminish the Lessee's obligation hereunder except to the extent such failure precludes the Lessee from contesting all or part of such claim.
(ii) If, within thirty (30) days of receipt of such notice from the Indemnified Person Indemnitee (or such shorter period as the Indemnified Person Indemnitee has notified the Lessee as is required by law or regulation for the Indemnified Person Indemnitee to commence such contest), the Lessee shall request in writing that such Indemnified Person Indemnitee contest such Imposition, the Indemnified Person Indemnitee shall, at the expense of the Lessee, in good faith conduct and control such contest (including including, without limitation, by pursuit of appeals) relating to the validity, applicability or amount of such Impositions (provided, however, that (A) if such contest involves a tax other than a tax on net income and can be pursued independently from any other proceeding involving a tax liability of such Indemnified PersonIndemnitee, the Indemnified PersonIndemnitee, at the Lessee's request, shall allow the Lessee to conduct and control such contest and (B) in the case of any contest, the Indemnified Person Indemnitee may request the Lessee to conduct and control such contest) 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, or (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 Lessee 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 partyparty except that no decision shall be made to concede an indemnified issue without the prior consent of Lessee (which consent shall not be unreasonably withheld). The parties agree that an Indemnified Person Indemnitee 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 Indemnitee shall waive its rights to any indemnity from the Lessee that otherwise would be payable in respect of such claim (and any future claim by any taxing authority, the contest of which is precluded by reason of such resolution of such claim) and shall pay to the Lessee any amount previously paid or advanced by the Lessee pursuant to this SECTION 11.2 Section 13.5 by way of ------------ indemnification or advance for the payment of an Imposition other than expenses of such contest.
(iv) Notwithstanding the foregoing provisions of this SECTION 11.2Section 13.5, ------------ an Indemnified Person Indemnitee shall not be required to take any action and the Lessee shall not be permitted to contest any Impositions in its own name or that of the Indemnified Person Indemnitee unless (A) the Lessee shall have agreed such Imposition is subject to pay in writing indemnity hereunder and shall pay to such Indemnified Person Indemnitee on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person Indemnitee actually incurs in connection with contesting such Impositions, including including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements and the contested claim if ultimately required to be paiddisbursements, (B) in the case of a claim that must be pursued in the name of an Indemnified Person Indemnitee (or an Affiliate thereof), the amount of the potential indemnity (taking into account all similar or logically related claims that have been or could be raised in any audit involving such Indemnitee for which the Lessee may be liable to pay an indemnity under this Section 13.5) exceeds $50,00010,000, (C) the Indemnified Person ------------ Indemnitee 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 the Pledged CollateralProperty, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such contest shall involve the payment of the Imposition prior to the contest, the Lessee shall provide to the Indemnified Person Indemnitee an interest-free advance in an amount equal to the Imposition that the Indemnified Person Indemnitee is required to pay (with no additional net after-tax cost to such Indemnified PersonIndemnitee), (E) in the case of a claim that must be pursued in the name of an Indemnitee (or an Affiliate thereof), the Lessee shall have provided to such Indemnified Person Indemnitee an opinion of independent tax counsel selected by the Lessee Indemnitee and reasonably satisfactory to the Indemnified Person Lessee stating that a reasonable basis exists to contest such claim (or, in the case of an appeal of an adverse judicial determination, an opinion of such counsel to the effect that there is substantial authority for the position asserted in such appeal will more likely than not prevail), appeal) and (F) no Event of Default hereunder shall have occurred and be continuing. In no event shall an Indemnified Person Indemnitee be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person Indemnitee shall not be required 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 a contest completed in accordance with the contest provisions of this SECTION 11.2Section 13.5, unless there shall have been a change in law ------------ (or interpretation thereof) and the Indemnified Person Indemnitee shall have received, at the Lessee's expense, an opinion of independent tax counsel selected by the Indemnified Person Indemnitee and reasonably acceptable to the Lessee stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person Indemnitee will prevail in such contest.
Appears in 1 contract
Samples: Participation Agreement (Vitesse Semiconductor Corp)
Contests of Impositions. (i) If a written claim is made against any Indemnified Person Indemnitee or if any proceeding shall be commenced against such Indemnified Person Indemnitee (including a written notice of such proceeding), for any Impositions, such Indemnified Person Indemnitee shall promptly notify the Lessee in writing and shall not take action with respect to such claim or proceeding without the consent of the Lessee for thirty (30) days after the receipt of such notice by the Lessee; providedPROVIDED, however, that, in the case of any such claim or proceeding, if action shall be required by law or regulation to be taken prior to the end of such 30-day period, such Indemnified Person Indemnitee shall, in such notice to the Lessee, inform the Lessee of such shorter period, and no action shall be taken with respect to such claim or proceeding without the consent of the Lessee before two 2 days before the end of such shorter period; providedPROVIDED, furtherFURTHER, that the failure of such Indemnified Person Indemnitee to give the notices referred to in this sentence shall not diminish the Lessee's obligation hereunder except to the extent such failure precludes the Lessee from contesting all or part of such claim.
(ii) If, within thirty (30) days of receipt of such notice from the Indemnified Person Indemnitee (or such shorter period as the Indemnified Person Indemnitee has notified the Lessee as is required by law or regulation for the Indemnified Person Indemnitee to commence such contest), the Lessee shall request in writing that such Indemnified Person Indemnitee contest such Imposition, the Indemnified Person Indemnitee shall, at the expense of the Lessee, in good faith conduct and control such contest (including including, without limitation, by pursuit of appeals) relating to the validity, applicability or amount of such Impositions (providedPROVIDED, however, that (A) if such contest involves a tax other than a tax on net income and can be pursued independently from any other proceeding involving a tax liability of such Indemnified PersonIndemnitee, the Indemnified PersonIndemnitee, at the Lessee's request, shall allow the Lessee to conduct and control such contest and (B) in the case of any contest, the Indemnified Person Indemnitee may request the Lessee to conduct and control such contest) 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, or (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 Lessee 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; providedPROVIDED, that all decisions ultimately shall be made in the sole discretion of the controlling party. The parties agree that an Indemnified Person Indemnitee 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 Indemnitee shall waive its rights to any indemnity from the Lessee that otherwise would be payable in respect of such claim (and any future claim by any taxing authority, the contest of which is precluded by reason of such resolution of such claim) and shall pay to the Lessee any amount previously paid or advanced by the Lessee pursuant to this SECTION 11.2 13.5 by way of indemnification or advance for the payment of an Imposition other than expenses of such contest.
(iv) Notwithstanding the foregoing provisions of this SECTION 11.213.5, an Indemnified Person Indemnitee shall not be required to take any action and the Lessee shall not be permitted to contest any Impositions in its own name or that of the Indemnified Person Indemnitee unless (A) the Lessee shall have agreed to pay in writing and shall pay to such Indemnified Person Indemnitee on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person Indemnitee actually incurs in connection with contesting such Impositions, including including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements and the contested claim if ultimately required to be paiddisbursements, (B) in the case of a claim that must be pursued in the name of an Indemnified Person Indemnitee (or an Affiliate thereof), the amount of the potential indemnity (taking into account all similar or logically related claims that have been or could be raised in any audit involving such Indemnitee for which the Lessee may be liable to pay an indemnity under this SECTION 13.5) exceeds $50,000100,000, (C) the Indemnified Person Indemnitee 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 the Pledged CollateralProperty, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such contest shall involve the payment of the Imposition prior to the contest, the Lessee shall provide to the Indemnified Person Indemnitee an interest-free advance in an amount equal to the Imposition that the Indemnified Person Indemnitee is required to pay (with no additional net after-tax cost to such Indemnified PersonIndemnitee), (E) in the case of a claim that must be pursued in the name of an Indemnitee (or an Affiliate thereof), the Lessee shall have provided to such Indemnified Person Indemnitee an opinion of independent tax counsel selected by the Lessee Indemnitee and reasonably satisfactory to the Indemnified Person Lessee stating that a reasonable basis exists to contest such claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that there is substantial authority for the position asserted in such appeal will more likely than not prevail), appeal) and (F) no Event of Default hereunder shall have occurred and be continuing. In no event shall an Indemnified Person Indemnitee be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person Indemnitee shall not be required 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 11.213.5, unless there shall have been a change in law (or interpretation thereof) and the Indemnified Person Indemnitee shall have received, at the Lessee's expense, an opinion of independent tax counsel selected by the Indemnified Person Indemnitee and reasonably acceptable to the Lessee stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person Indemnitee will prevail in such contest.
Appears in 1 contract
Samples: Participation Agreement (Triquint Semiconductor Inc)
Contests of Impositions. (i) If a written claim is made against any Indemnified Person Indemnitee or if any proceeding shall be commenced against such Indemnified Person Indemnitee (including a written notice of such proceeding), for any Impositions, such Indemnified Person Indemnitee shall promptly notify the Lessee in writing and shall not take action with respect to such claim or proceeding without the consent of the Lessee for thirty (30) days after the receipt of such notice by the Lessee; provided, -------- however, that, in the case of any such claim or proceeding, if action shall be required by law or regulation to be taken prior to the end of such 30-30- day period, such Indemnified Person Indemnitee shall, in such notice to the Lessee, inform the Lessee of such shorter period, and no action shall be taken with respect to such claim or proceeding without the consent of the Lessee before two 2 days before the end of such shorter period; provided, further, that the failure -------- ------- of such Indemnified Person Indemnitee to give the notices referred to in this sentence shall not diminish the Lessee's obligation hereunder except to the extent such failure precludes the Lessee from contesting all or part of such claim.
(ii) If, within thirty (30) days of receipt of such notice from the Indemnified Person Indemnitee (or such shorter period as the Indemnified Person Indemnitee has notified the Lessee as is required by law or regulation for the Indemnified Person Indemnitee to commence such contest), the Lessee shall request in writing that such Indemnified Person Indemnitee contest such Imposition, the Indemnified Person Indemnitee shall, at the expense of the Lessee, in good faith conduct and control such contest (including including, without limitation, by pursuit of appeals) relating to the validity, applicability or amount of such Impositions (provided, however, that (A) if such contest involves a -------- tax other than a tax on net income and can be pursued independently from any other proceeding involving a tax liability of such Indemnified PersonIndemnitee, the Indemnified PersonIndemnitee, at the Lessee's request, shall allow the Lessee to conduct and control such contest and (B) in the case of any contest, the Indemnified Person Indemnitee may request the Lessee to conduct and control such contest) 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, or (3) if the payment be made, using reasonable efforts to obtain a refund thereof in 77 appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Lessee 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. The parties agree that an Indemnified Person Indemnitee 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 Indemnitee shall waive its rights to any indemnity from the Lessee that otherwise would be payable in respect of such claim (and any future claim by any taxing authority, the contest of which is precluded by reason of such resolution of such claim) and shall pay to the Lessee any amount previously paid or advanced by the Lessee pursuant to this SECTION 11.2 Section 13.5 by way of indemnification or advance ------------ for the payment of an Imposition other than expenses of such contest.
(iv) Notwithstanding the foregoing provisions of this SECTION 11.2Section ------- 13.5, an Indemnified Person Indemnitee shall not be required to take any action and the Lessee ---- shall not be permitted to contest any Impositions in its own name or that of the Indemnified Person Indemnitee unless (A) the Lessee shall have agreed to pay in writing and shall pay to such Indemnified Person Indemnitee on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person Indemnitee actually incurs in connection with contesting such Impositions, including including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements and the contested claim if ultimately required to be paiddisbursements, (B) in the case of a claim that must be pursued in the name of an Indemnified Person Indemnitee (or an Affiliate thereof), the amount of the potential indemnity (taking into account all similar or logically related claims that have been or could be raised in any audit involving such Indemnitee for which the Lessee may be liable to pay an indemnity under this Section 13.5) exceeds ------------ $50,000100,000, (C) the Indemnified Person Indemnitee 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 the Pledged CollateralProperty, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such contest shall involve the payment of the Imposition prior to the contest, the Lessee shall provide to the Indemnified Person Indemnitee an interest-free advance in an amount equal to the Imposition that the Indemnified Person Indemnitee is required to pay (with no additional net after-tax cost to such Indemnified PersonIndemnitee), (E) in the case of a claim that must be pursued in the name of an Indemnitee (or an Affiliate thereof), the Lessee shall have provided to such Indemnified Person Indemnitee an opinion of independent tax counsel selected by the Lessee Indemnitee and reasonably satisfactory to the Indemnified Person Lessee stating that a reasonable basis exists to contest such claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that there is substantial authority for the position asserted in such appeal will more likely than not prevail), appeal) and (F) no Event of Default hereunder shall have occurred and be continuing. In no event shall an Indemnified Person Indemnitee be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person Indemnitee shall not be required 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 11.2Section 13.5, unless there shall have been a change in ------------ law (or interpretation thereof) and the Indemnified Person Indemnitee shall have received, at the Lessee's expense, an opinion of independent tax counsel selected by the Indemnified Person Indemnitee and reasonably acceptable to the Lessee stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person Indemnitee will prevail in such contest.
Appears in 1 contract
Samples: Participation Agreement (Asyst Technologies Inc /Ca/)
Contests of Impositions. (i) If a written claim is made against any Indemnified Person or if any proceeding shall be commenced against such Indemnified Person (including a written notice of such proceeding), ) for any Impositions, such Indemnified Person shall promptly notify the Lessee in writing and shall not take action with respect to such claim or proceeding without the consent of the Lessee for thirty (30) days after the receipt of such notice by the Lessee; provided, however, that, in the case of any such claim or proceeding, if action shall be required by law or regulation Law to be taken prior to the end of such 30-day period, such Indemnified Person shall, in such notice to the Lessee, inform the Lessee of such shorter period, and no action shall be taken with respect to such claim or proceeding without the consent of the Lessee before two (2) days before the end of such shorter period; provided, further, that the failure of such Indemnified Person to give the notices referred to in this sentence shall not diminish the Lessee's obligation hereunder except to the extent failure to give such failure notice precludes the Lessee from contesting all or part of 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 Lessee as is required by law Law or regulation for the Indemnified Person to commence such contest), the Lessee shall request in writing that such Indemnified Person contest such Imposition, the Indemnified Person shall, at the sole cost and expense of the Lessee, in good faith conduct and control such contest (including including, without limitation, by pursuit of appeals) relating to the validity, applicability or amount of such Impositions (provided, however, that (A) if such contest involves a tax other than a tax on net income and can be pursued independently from any other proceeding involving a tax liability of such Indemnified Person, the Indemnified Person, at the Lessee's request, shall allow the Lessee to conduct and control such contest and (B) in the case of any contest, the Indemnified Person may request require the Lessee to conduct and control such contestcontest at the sole cost and expense of the Lessee) 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, or (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 Lessee from time to time. If Lessee conducts and controls such contest, it shall use counsel selected by it and consented to by the Indemnified Person (which consent shall not be unreasonably withheld), except that in the event of any material conflict of interest between Lessee and such Indemnified Person, such Indemnified Person may retain separate counsel, the reasonable fees and expenses of which will be paid by the Lessee.
(iii) The party Person controlling any contest shall consult in good faith with the non-controlling party Person 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. 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 Lessee that otherwise would be payable in respect of such claim (and any future claim by any taxing authority, the contest of which is precluded by reason of such resolution of such claim) and shall pay to the Lessee any amount previously paid or advanced by the Lessee pursuant to this SECTION 11.2 Section 7.1 by way of indemnification or advance for the payment of an Imposition other than expenses of such contest.
(iv) Notwithstanding the foregoing provisions of this SECTION 11.2Section 7.1, an Indemnified Person shall not be required to take any action and the Lessee shall not be permitted to contest any Impositions in its own name or that of the Indemnified Person unless (A) the Lessee shall have agreed in writing to pay in writing 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 Impositions, including including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements disbursements, and the contested claim if ultimately required to amount of such Imposition should the contest be paidunsuccessful, (B) in the case of a claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity (taking into account all similar or logically related claims that have been or could be raised in any audit involving such Indemnified Person for which the Lessee may be liable to pay an indemnity under this Section 7.1) exceeds $50,000100,000, (C) 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 the Pledged CollateralEquipment, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such contest shall involve the payment of the Imposition prior to the contest, the Lessee 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), (E) in the case of a claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Lessee shall have provided to such Indemnified Person an opinion of independent tax counsel selected by the Lessee Indemnified Person and reasonably satisfactory to the Indemnified Person Lessee stating that a reasonable basis exists to contest such claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail), ) and (F) no Lease Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required 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 11.2Section 7.1, unless there shall have been a change in law Law (or interpretation thereof) and the Indemnified Person shall have received, at the Lessee's expense, an opinion of independent tax counsel selected by the Indemnified Person and reasonably acceptable to the Lessee stating that as a result of such change in law Law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest.
Appears in 1 contract
