Contests. Notwithstanding anything to the contrary herein contained, Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if: (a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted; (b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee; (c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and (d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 4 contracts
Samples: Open End Real Property Mortgage (NNN Healthcare/Office REIT, Inc.), Open End Revolving Mortgage (Grubb & Ellis Healthcare REIT, Inc.), Open End Fee and Leasehold Revolving Mortgage (Grubb & Ellis Healthcare REIT, Inc.)
Contests. Notwithstanding anything to the contrary herein contained, the Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called each, a “Contested Liens”), and no Contested Liens Lien shall constitute an Event of Default hereunder, if, but only if:
(a) The Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee the Lender at the time the same shall be asserted;
(b) The Mortgagor shall either pay under protest or deposit with Mortgagee the Lender the full amount (herein called the “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee the Lender may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment the Mortgagor may furnish to Mortgagee the Lender a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgageethe Lender;
(c) The Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee the Lender to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgageethe Lender’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and;
(d) The Mortgagor shall pay each such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to the Mortgagor, or (ii) forthwith upon demand by Mortgagee the Lender if, in the opinion of Mortgageethe Lender, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if the Mortgagor shall fail so to do, Mortgagee the Lender may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee Lender to obtain the release and discharge of such liens; and any amount expended by Mortgagee the Lender in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee the Lender may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 4 contracts
Samples: Mortgage, Security Agreement, Assignment of Rents and Fixture Filing (GK Investment Property Holdings II LLC), Mortgage, Security Agreement, Assignment of Rents and Fixture Filing (GK Investment Property Holdings II LLC), Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture Filing (Lifeway Foods Inc)
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called each, a “Contested LiensLien”), and no Contested Liens Lien shall constitute an Event of Default hereunderunder this Mortgage, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee Lender at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee Lender the full amount (herein called the “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee Lender may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee Lender a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to MortgageeLender;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee Lender to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of MortgageeLender’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and;
(d) Mortgagor shall pay each such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee Lender if, in the opinion of MortgageeLender, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee Lender may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee Lender to obtain the release and discharge of such liens; and any amount expended by Mortgagee Lender in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee Lender may in such case use and apply monies deposited as provided in subsection paragraph (b) above of this Section and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 4 contracts
Samples: Mortgage, Assignment of Rents, Security Agreement and Fixture Filing (Adcare Health Systems, Inc), Mortgage, Assignment of Rents, Security Agreement and Fixture Filing (Adcare Health Systems, Inc), Mortgage, Assignment of Rents, Security Agreement and Fixture Filing (Adcare Health Systems, Inc)
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor Trustor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor Trustor shall forthwith give notice of any Contested Lien to Mortgagee Beneficiary at the time the same shall be asserted;
(b) Mortgagor Trustor shall either pay under protest or deposit with Mortgagee Beneficiary the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee Beneficiary may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor Trustor may furnish to Mortgagee Beneficiary a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to MortgageeBeneficiary;
(c) Mortgagor Trustor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee Beneficiary to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of MortgageeBeneficiary’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor Trustor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to MortgagorTrustor, or (ii) forthwith upon demand by Mortgagee Beneficiary if, in the opinion of MortgageeBeneficiary, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor Trustor shall fail so to do, Mortgagee Beneficiary may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee Beneficiary to obtain the release and discharge of such liens; and any amount expended by Mortgagee Beneficiary in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee Beneficiary may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 3 contracts
Samples: Commercial Deed of Trust (NNN Healthcare/Office REIT, Inc.), Commercial Deed of Trust (NNN Healthcare/Office REIT, Inc.), Commercial Deed of Trust (Grubb & Ellis Healthcare REIT, Inc.)
Contests. Notwithstanding anything (a) After the Closing, each of Buyer and Seller shall promptly notify the other party in writing of any written notice of a proposed assessment, audit, contest, proceeding or litigation (a "Contest") of Buyer or Seller or of any of the Company and the Subsidiaries which could reasonably be expected to result in grounds for payment by such other party under this Article VII.
(b) For all Contests for which either party alone bears the economic burden under Article VII, such party shall control all such Contests in connection therewith. In other cases, (i) prior to the contrary herein containedClosing Date, Mortgagor Seller shall control all Contests relating to the Company and the Subsidiaries, and Seller shall not settle or compromise any Contest without the written consent of Buyer, which consent shall not be unreasonably withheld, delayed or conditioned; and (ii) after the Closing Date, in the case of a Contest that relates to a non-Consolidated Tax Return (or any item relating thereto or reported thereon) for a taxable period that includes the Closing Date, Buyer shall control, and Seller shall have the right at its expense to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon participate in the Premises or which may be or become a lien thereon and any mechanics’conduct of, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”)such Contest, and no Contested Liens for all taxable periods thereafter, Buyer shall constitute an Event control such Contests; provided, however, that Seller shall control any contest that relates to a Consolidated Return of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice Seller. If Seller does not assume the defense of any Contested Lien to Mortgagee at such Contest for a taxable period ending on or before the time Closing Date, Buyer may defend the same in such manner as it may deem appropriate, including settling such Contest after giving 30 days’ prior written notice to Seller setting forth the terms and conditions of settlement. Notwithstanding the foregoing, Buyer shall control any Contests relating to, and shall be asserted;
(b) Mortgagor under no obligation to dispute or otherwise litigate, any Franchise Fees with respect to which Buyer receives a bona fide request for payment from the applicable Franchisor and such Franchise Fees shall either pay under protest or deposit with Mortgagee be paid by Seller to the full amount (herein called “Lien Amount”) of extent such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during Franchise Fees relate to the period of contestprior to the Closing Date, as determined in accordance with Section 7.1 above; provided that Buyer shall not (and shall cause its Affiliates not to) solicit or enter into any arrangement with any Franchisor under which payment of Franchise Fees relating to the period prior to the Closing Date is made in lieu of such payment Mortgagor may furnish return for a reduction in Franchise Fees relating to Mortgagee a bond the period on or title indemnity in such amount and form, and issued by a bond after the Closing Date or title insuring company, as may be satisfactory other benefit to Mortgagee;Buyer or its Affiliates.
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the PremisesBuyer and Seller agree to cooperate, and shall permit Mortgagee Buyer agrees to be represented in any such contest cause the Company and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and Subsidiaries to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee ifcooperate, in the opinion defense against or compromise of Mortgagee, and notwithstanding any such contest, the Premises shall be claim in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidContest.
Appears in 3 contracts
Samples: Stock Purchase Agreement (RCN Corp /De/), Stock Purchase Agreement (RCN Corp /De/), Stock Purchase Agreement (RCN Corp /De/)
Contests. Notwithstanding anything (i) Seller on the one hand, and Buyer or Parent on the other, shall notify the other in writing within 30 days or such shorter period as may be required thereby of receipt of written notice of any pending or threatened Tax examination, audit or other administrative or judicial proceeding (a "Tax Contest") that could reasonably be expected to result in a liability for Taxes of another party. If the recipient of such notice of a Tax Contest fails to provide such notice to such other party, and the recipient is entitled to indemnification for Taxes under this Agreement, it shall be entitled to indemnification for any Taxes arising in connection with such Tax Contest, but only to the contrary herein containedextent, Mortgagor if any, that such failure or delay shall not have adversely affected the indemnifying party's ability to defend against, settle, or satisfy any action, suit or proceeding against it, or any damage, loss, claim, or demand for which the indemnified party is entitled to indemnification hereunder.
(ii) If a Tax Contest relates to any Taxes for which Seller is liable in full hereunder, Seller shall at its expense control the defense and settlement of such Tax Contest. If such Tax Contest relates to any Taxes for which Buyer or Parent is liable in full hereunder, Buyer or Parent shall at its own expense, control the defense and settlement of such Tax Contest. A party not in control of the defense shall have the right to contest by appropriate legal proceedings diligently prosecuted observe the conduct of any Tax Contest at its expense, including through its own counsel and other professional experts. If a Tax Contest relates to Taxes imposed for which Seller and either Buyer or assessed upon the Premises Parent or which both may be liable hereunder, the parties that may have such liability shall jointly control the defense and settlement of such Tax Contest.
(iii) To the extent that an issue raised in any Tax Contest controlled by one party or become a lien thereon and any mechanics’jointly controlled could materially affect the liability for Taxes of another party, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”)controlling party shall not, and no Contested Liens shall constitute an Event party in the case of Default hereunderjoint control shall, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at enter into a final settlement without the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture written consent of the Premisesother party or parties, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but consent shall not be required tounreasonably withheld. Where a party withholds its consent to any final settlement, pay all such Contested Liens that party may continue or initiate further proceedings, at its own expense, and Lien Amounts the liability of the party or parties that wished to settle (as between the consenting and interest the non consenting parties) shall not exceed the liability that would have resulted from the proposed final settlement including interest, additions to Tax, and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest that have accrued at the Default Rate until paidthat time, and payable upon demand; and provided further that Mortgagee may in the non consenting party or parties shall indemnify the consenting party or parties for such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidTaxes.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Headwaters Inc), Asset Purchase Agreement (Headwaters Inc)
Contests. Notwithstanding anything If a notice of deficiency, proposed adjustment, assessment, audit, examination or other administrative or court proceeding, suit, dispute or other claim (a “Tax Contest”) shall be delivered, sent, commenced, or initiated to, by or against Purchaser or any of the Companies by any taxing authority with respect to Taxes that results in or may result in a Tax Loss for which indemnification may be claimed from Sellers under this Agreement, Purchaser shall promptly notify Sellers in writing of such Tax Contest; provided that the failure to so notify Sellers shall not relieve Sellers of their indemnification obligations hereunder, except to the contrary herein containedextent that such failure prejudices Sellers’ defense of the Tax Contest. Sellers shall have the sole right to represent the Companies’ interests and to employ counsel of their choice at their expense with respect to any such Tax Contest; and Purchaser shall cause each of the applicable Companies to execute any powers of attorney or other documents or forms necessary in order to allow Sellers to control such Tax Contest and to settle any such Tax Contest; provided that in the case of any Tax Contest relating to any Tax for any Straddle Period, Mortgagor Purchaser and Sellers shall each be entitled to participate at their own expense in such Tax Contest to the extent it relates to a Tax for which such party bears liability pursuant to Section 9.1. No party may settle or otherwise dispose of any Tax Contest for which another party may have a liability under Section 9.1 or which settlement could adversely affect either party in Tax periods for which such party is responsible or for which another party may be entitled to a refund or credit under Section 9.1 without the prior written consent of such other party, which consent will not be unreasonably withheld, conditioned or delayed. In the event that Sellers do not take control of a Tax Contest that they have the right to contest by appropriate legal proceedings diligently prosecuted control hereunder, Purchaser and the Companies shall keep Sellers reasonably informed as to the progress of such Tax Contest and shall not enter into any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s settlement or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture disposition of the Premisessuch Tax Contest prior to receiving the written consent of Sellers, and shall permit Mortgagee to which consent will not be represented in any such contest and shall pay all expenses incurredunreasonably withheld, in so doingconditioned or delayed. In no event, including fees and expenses without the prior written consent of Mortgagee’s counsel (all of PLC, which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required tounreasonably withheld, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary conditioned or delayed, shall Purchaser or the Companies grant an extension of any applicable statute of limitations in respect of any Tax period ending prior to the judgment of the Mortgagee to obtain the release and discharge of such liens; and Closing Date or any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidStraddle Period.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Protective Life Corp), Stock and Asset Purchase Agreement (Protective Life Insurance Co)
Contests. Notwithstanding anything If any claim shall be made against any Tax Indemnitee or if any proceeding shall be commenced against any Tax Indemnitee (including a written notice of such proceeding) for any Taxes as to which the Lessees may have an indemnity obligation pursuant to Section 7.4, or if any Tax Indemnitee shall determine that any Taxes as to which the Lessees may have an indemnity obligation pursuant to Section 7.4 may be payable, such Tax Indemnitee shall promptly notify ChoicePoint. ChoicePoint shall be entitled, at its expense, to participate in, and, to the contrary herein containedextent that ChoicePoint desires to, Mortgagor assume and control the defense thereof; provided, however, that ChoicePoint, shall have acknowledged in writing its and each Lessee's obligation to fully indemnify such Tax Indemnitee in respect of such action, suit or proceeding if the right contest is unsuccessful; and, provided further, that ChoicePoint shall not be entitled to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon assume and control the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice defense of any Contested Lien to Mortgagee such action, suit or proceeding (but the Tax Indemnitee shall then contest, at the time sole cost and expense of ChoicePoint and the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit Lessees, on behalf of ChoicePoint with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may representatives reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure ChoicePoint or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (ia Lessee) if and to the extent that that, (A) in the reasonable opinion of such Tax Indemnitee, such action, suit or proceeding (x) involves any risk of imposition of criminal liability or any material risk of civil liability in excess of $1,000,000 on such Contested Tax Indemnitee or (y) will involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on any Leased Property or any part thereof unless ChoicePoint or a Lessee shall have posted a bond or other security satisfactory to the relevant Tax Indemnitees in respect to such risk, (B) such proceeding involves Claims not fully indemnified by the Lessees which ChoicePoint and the Tax Indemnitee have been unable to sever from the indemnified claim(s), (C) an Event of Default has occurred and is continuing, (D) such action, suit or proceeding involves matters which extend beyond or are unrelated to the Transaction and if determined adversely could be materially detrimental to the interests of such Tax Indemnitee notwithstanding indemnification by the Lessees or (E) such action, suit or proceeding involves the federal or any state income tax liability of the Tax Indemnitee. With respect to any contests controlled by a Tax Indemnitee, (i) if such contest relates to the federal or any state income tax liability of such Tax Indemnitee, such Tax Indemnitee shall be determined adverse required to Mortgagor, conduct such contest only if ChoicePoint shall have provided to such Tax Indemnitee an opinion of independent tax counsel selected by the Tax Indemnitee and reasonably satisfactory to ChoicePoint stating that a reasonable basis exists to contest such claim or (ii) forthwith upon demand by Mortgagee if, in the case of an appeal of an adverse determination of any contest relating to any Taxes, an opinion of Mortgageesuch counsel to the effect that such appeal is more likely than not to be successful, and notwithstanding any provided, however, such contest, the Premises Tax Indemnitee shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not no event be required to, pay all such Contested Liens to appeal an adverse determination to the United States Supreme Court. The Tax Indemnitee may participate in a reasonable manner at its own expense and Lien Amounts and interest and penalties thereon and such other sums as may be necessary with its own counsel in any proceeding conducted by ChoicePoint in accordance with the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidforegoing.
Appears in 2 contracts
Samples: Master Agreement (Choicepoint Inc), Master Agreement (Choicepoint Inc)
Contests. Notwithstanding anything If any claim shall be made against any Indemnitee or if any proceeding shall be commenced against any Indemnitee (including a written notice of such proceeding) for any Imposition as to which Lessee reasonably may have an indemnity obligation pursuant to this Section 11.2, or if any Indemnitee reasonably shall determine that any Imposition for which Lessee may have an indemnity obligation pursuant to this Section 11.2 may be payable, such Indemnitee shall promptly (and in any event, within 30 days) notify Lessee in writing (provided that failure to so notify Lessee within 30 days shall not alter such Indemnitee’s rights under this Section 11.2, except to the contrary herein containedextent such failure precludes or materially adversely affects the ability to conduct a contest of any indemnified Imposition, Mortgagor in which case Lessee shall have no indemnification obligation hereunder to the right extent such failure precludes or materially affects their ability to conduct a contest) and shall not take any action with respect to such claim, proceeding or Imposition without the written consent of Lessee (such consent not to be unreasonably withheld or unreasonably delayed) for 30 days after the receipt of such notice by Lessee; provided, however, that in the case of any such claim or proceeding, if such Indemnitee shall be required by law or regulation to take action prior to the end of such 30-day period, such Indemnitee shall in such notice to Lessee, so inform Lessee, and such Indemnitee shall not take any action with respect to such claim, proceeding or Imposition without the consent of Lessee (such consent not to be unreasonably withheld or unreasonably delayed) for 10 days after the receipt of such notice by Lessee, unless the Indemnitee shall be required by law or regulation to take action prior to the end of such 10-day period. Lessee shall be entitled for a period of 30 days from receipt of such notice from the Indemnitee (or such shorter period as the Indemnitee has notified Lessee is required by law or regulation for the Indemnitee to commence such contest), to request in writing that such Indemnitee contest in good faith of such Imposition, at Lessee’s expense. If (x) such contest can be pursued in the name of Lessee and independently from any other proceeding involving an Imposition for which Lessee has not agreed to indemnify such Indemnitee, (y) such contest must be pursued in the name of the Indemnitee, but can be pursued independently from any other proceeding involving an Imposition for which Lessee has not agreed to indemnify such Indemnitee or (z) the Indemnitee so requests, then Lessee shall be permitted to control the contest of such claim, provided that in the case of a contest described in any of clause (x), (y) or (z) if the Indemnitee determines in good faith that such contest by Lessee reasonably could have a material adverse impact on the business or operations of the Indemnitee and provides a written explanation to Lessee of such determination, the Indemnitee may elect to control or reassert control of the contest, and provided, that by taking control of the contest, Lessee acknowledges that it is responsible for the Imposition ultimately determined to be due by reason of such claim, and; provided, further, that in determining the application of clauses (x) and (y), each Indemnitee shall take any and all reasonable steps to segregate claims for any Impositions for which Lessee indemnifies hereunder from Impositions for which Lessee is not obligated to indemnify hereunder, so that Lessee can control the contest of the former. In all other claims requested to be contested by Lessee, the Indemnitee shall control the contest of such claim, acting through counsel reasonably acceptable to Lessee. In any contest controlled by an Indemnitee, the Indemnitee shall conduct such contest in good faith. In no event shall Lessee be permitted to contest by appropriate (or the Indemnitee required to contest) any claim (A) if such Indemnitee provides Lessee with a legal proceedings diligently prosecuted opinion of independent counsel that such action, suit or proceeding involves a material risk of imposition of criminal liability or will involve a material risk of the sale, forfeiture or loss of, or the creation of any Taxes imposed Lien (other than a Permitted Lien) on any Item or assessed upon Items of Equipment or any part thereof or any other Lessee Collateral unless Lessee shall have posted and maintained a bond or other security reasonably satisfactory to the Premises relevant Indemnitee in respect to such risk, (B) if a Lease Event of Default has occurred and is continuing, unless Lessee shall have posted and maintained a bond or other security reasonably satisfactory to the relevant Indemnitee in respect of the Impositions subject to such claim and any and all expenses for which Lessee is responsible hereunder reasonably foreseeable in connection with the contest of such claim, (C) unless Lessee shall have agreed to pay and shall pay to such Indemnitee on demand all reasonable out-of-pocket costs, losses and expenses that such Indemnitee may incur in connection with contesting such Imposition, including all reasonable legal, accounting and investigatory fees and disbursements, or (D) if such contest shall involve the payment of the Impositions prior to the contest, unless Lessee shall provide to the Indemnitee an interest-free advance in an amount equal to the Imposition that the Indemnitee is required to pay (with no additional net after-tax costs (including Taxes) to such Indemnitee). In addition, for Indemnitee-controlled contests and claims contested in the name of the Indemnitee in a public forum, no contest shall be required: (A) unless 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 Lessee may be liable to pay an indemnity under this Section 11.2) exceeds $75,000 and (B) unless, if requested by the Indemnitee, the Lessee shall have provided to the Indemnitee an opinion of counsel selected by Lessee that a reasonable basis exists to contest such claim. In no event shall an Indemnitee be required to appeal an adverse judicial determination to the United States Supreme Court. The party conducting the contest shall consult in good faith with the other party and its counsel with respect to the contest of such claim for Impositions (or become claim for refund) but the decisions regarding what actions to be taken shall be made by the controlling party in its sole judgment; provided, however, that if the Indemnitee is the controlling party, no settlement offer with respect to such claims shall be made or accepted by the Indemnitee without the prior consent of the Lessee (which consent shall not unreasonably be withheld); provided further, that if the Indemnitee is the controlling party and Lessee recommends the acceptance of a lien thereon settlement offer made by the relevant Governmental Agency and such Indemnitee rejects such settlement offer then the amount for which Lessee will be required to indemnify such Indemnitee with respect to the Taxes subject to such offer shall not exceed the amount which it would have owed if such settlement offer had been accepted. In addition, the controlling party shall keep the noncontrolling party reasonably informed as to the progress of the contest, and shall provide the noncontrolling party with a copy of (or appropriate excerpts from) any mechanics’, materialmen’s or other liens reports or claims issued by the relevant auditing agent or taxing authority to the controlling party thereof, in connection with such claim or the contest thereof. Each Indemnitee shall supply Lessee with such information and documents reasonably requested by Lessee as is necessary or advisable for lien upon Lessee to participate in any action, suit or proceeding to the Premises (all herein called “Contested Liens”extent permitted by this Section 11.2(b), and no Contested Liens Lessee shall constitute promptly reimburse such Indemnitee for the reasonable out-of-pocket expenses of supplying such information and documents. No Indemnitee shall enter into any settlement or other compromise or fail to appeal an Event adverse ruling with respect to any claim which is entitled to be indemnified under this Section 11.2 (and with respect to which contest is required under this Section 11.2(b)) without the prior written consent of Default hereunderLessee (such consent not to be unreasonably withheld), ifunless such Indemnitee waives its right to be indemnified under this Section 11.2 with respect to such claim. Notwithstanding anything contained herein to the contrary, but only if:
an Indemnitee will not be required to contest (aand Lessee shall not be permitted to contest) Mortgagor a claim with respect to any Imposition if (i) such Indemnitee shall forthwith give notice of waive its right to indemnification under this Section 11.2 with respect to such claim (and any Contested Lien claim with respect to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest such year or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lienany other taxable year, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect which is materially adversely affected as a result of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(dwaiver) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee ifsuch Imposition is the sole result of a claim of a continuing and consistent nature, which claim has previously been resolved against the relevant Indemnitee (unless a change in the law or facts has occurred since such prior adverse resolution and Lessee provides an opinion of Mortgagee, and notwithstanding any independent tax counsel to the effect that it is more likely than not that such contest, the Premises shall be change in jeopardy law or facts will result in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment a favorable resolution of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest claim at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidissue).
Appears in 2 contracts
Samples: Lease and Security Agreement (Lsi Logic Corp), Lease and Security Agreement (Lsi Logic Corp)
Contests. Subject to the rights of insurers under policies of insurance maintained pursuant to Section 14, the Lessee shall have the right, at its sole cost and expense, to investigate, and the right in its sole discretion to defend or contest by appropriate proceedings or compromise, any Claim for which indemnification is sought under this Section 23, and the Indemnified Person shall cooperate, at the Lessee's expense, with all reasonable requests of the Lessee in connection therewith, PROVIDED that the Lessee shall not have the right without the consent of the Indemnified Person to defend, contest or compromise any Claim with respect to such Indemnified Person (i) if an Event of Default shall have occurred and be continuing, (ii) if such proceeding involves any material danger of the sale, forfeiture or loss of the Leased Property or any part thereof, or (iii) if such Claim involves a realistic possibility of criminal sanctions or allegations by a Governmental Authority of criminal liability to such Indemnified Person, in which event the Indemnified Person shall be entitled to control and assume responsibility for the defense of such Claim at the expense of the Lessee. The Lessee shall keep the Indemnified Person which is the subject of such proceeding fully apprised of the status of such proceeding and shall provide such Indemnified Person with all information with respect to such proceeding as such Indemnified Person shall reasonably request. In the event an Indemnified Person has assumed control of any such proceeding, it shall keep the Lessee fully apprised of the status of such proceeding and shall provide the Lessee with all information, including the receipt of all settlement offers, with respect to such proceeding as such Indemnified Person shall reasonably request. Where the Lessee or the insurers under a policy of insurance maintained by the Lessee undertake the defense of an Indemnified Person with respect to a Claim, no additional legal fees or expenses of such Indemnified Person in connection with the defense of such Claim shall be indemnified hereunder unless such fees or expenses were incurred at the request of the Lessee or such insurers; PROVIDED that, if (i) in the written opinion of counsel to such Indemnified Person an actual or potential conflict of interest exists where it is advisable for such Indemnified Person to be represented by separate counsel or (ii) such Indemnified Person has been indicted or otherwise charged in a criminal complaint in connection with an indemnifiable Claim and such Indemnified Person informs the Lessee that such Indemnified Person desires to be represented by separate counsel, the reasonable fees and expenses of such separate counsel shall be borne by the Lessee. Subject to the requirements of any policy of insurance, an Indemnified Person may participate at its own expense in any judicial proceeding controlled by the Lessee pursuant to the preceding provisions and such participation shall not constitute a waiver of the right to receive the indemnification provided in this Section 23. Notwithstanding anything to the contrary herein containedcontained herein, Mortgagor shall have during the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute continuance of an Event of Default hereunderDefault, if, but only if:
(a) Mortgagor the Lessee shall forthwith give notice of not compromise any Contested Lien to Mortgagee at Claim without the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture consent of the Premisesapplicable Indemnified Person unless such Claim is simultaneously discharged fully and unconditionally as to such Indemnified Person, and shall permit Mortgagee such consent not to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidunreasonably withheld.
Appears in 2 contracts
Samples: Lease Agreement (Crown Pacific Partners L P), Lease Agreement (Crown Pacific Partners L P)
Contests. Notwithstanding anything If a written claim is made by any taxing authority against an Indemnitee for any Tax with respect to which Lessee is required to indemnify hereunder, such Indemnitee shall promptly give Lessee written notice of such claim. An Indemnitee's failure to 42 provide such notice to Lessee (for reasons other than Lessee's failure to fulfill its obligations to Indemnitee under this Lease) shall not diminish Lessee's obligations or such Indemnitee's rights hereunder except to the contrary herein containedextent that such failure precludes Lessee's and such Indemnitee's ability to contest such Tax. If Lessee promptly (and, Mortgagor in any event, within 15 days of receipt of notice from the Indemnitee) requests the Indemnitee to do so, the Indemnitee shall, at Lessee's expense, contest (or, at the Indemnitee's option, require Lessee to contest in Lessee's name, if permitted by law) the validity, applicability or amount of any such Tax. The Indemnitee shall determine in its sole discretion the forum in which the contest of such Tax shall be pursued and whether such contest shall be by (i) resisting payment thereof, if lawful and practicable, (ii) not paying the same except under protest, if protest is necessary or advisable and proper, or (iii) if the payment is made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings. If the Indemnitee determines that such contest shall be by the manner described in either of clauses (ii) or (iii) above, Lessee shall advance sufficient funds on an interest-free basis to the Indemnitee to make the payment required. If an Indemnitee contests the validity, applicability or amount of any Tax hereunder, Lessee shall have the right to participate in such contest by appropriate legal proceedings diligently prosecuted at its own expense, including the right to attend governmental or judicial conferences concerning such claim for Tax and the right to review and advise the Indemnitee as to all material written submissions to any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s governmental or other liens or claims authority relating to the Tax for lien upon which indemnification is sought. Notwithstanding the Premises foregoing, the Indemnitee shall only be required to contest (and Lessee shall only be permitted to contest) any Tax if (A) independent tax counsel selected by the Indemnitee is of the opinion that there is a reasonable basis for contesting the matter in question; (B) Lessee has acknowledged in writing its liability to indemnify the Indemnitee with respect to the Tax in question; (C) Lessee shall pay (and shall acknowledge in writing Lessee's liability to pay) the Indemnitee on demand for all herein called “Contested Liens”reasonable costs and expenses incurred by such Indemnitee incurs in connection with contesting such claim (including, without limitation, all costs, expenses, losses, reasonable legal and accounting fees (including fees associated with the Indemnitee's consultation with independent tax counsel as described herein), disbursements, penalties, interest and no Contested Liens additions to tax); (D) the issue shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time not be the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee as an issue previously contested hereunder and decided adversely unless independent tax counsel selected by the full amount (herein called “Lien Amount”) Indemnitee is of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided opinion that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and formthe applicable law has changed, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(cE) Mortgagor shall diligently prosecute the contest amount of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest Tax at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but issue exceeds $25,000. The Indemnitee shall not be required toto appeal any judicial decision unless it receives an opinion of independent counsel selected by such Indemnitee to the effect that it is more likely than not that such appeal would be successful. Under no circumstances shall the Indemnitee be required to appeal a decision to or request a hearing by the United States Supreme Court. Nothing in this Section 12.5 shall require any Indemnitee to contest, pay all or permit Lessee to contest, a claim with respect to the imposition of any Tax if such Contested Liens and Lien Amounts and interest and penalties thereon and Indemnitee shall waive its right to indemnification under Section 12.3 with respect to such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidclaim.
Appears in 2 contracts
Samples: Aircraft Lease Agreement (Republic Airways Holdings Inc), Aircraft Lease Agreement (Republic Airways Holdings Inc)
Contests. Notwithstanding anything to the contrary herein contained, the Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called each, a “Contested LiensLien”), and no Contested Liens Lien shall constitute an Event of Default hereunderunder this Mortgage, if, but only if:
(a) The Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee the Lender at the time the same shall be asserted;
(b) The Mortgagor shall either pay under protest or deposit with Mortgagee the Lender the full amount (herein called the “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee the Lender may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment the Mortgagor may furnish to Mortgagee the Lender a bond or title indemnity in such amount and - 19 - form, and issued by a bond or title insuring company, as may be satisfactory to Mortgageethe Lender;
(c) The Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee the Lender to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgageethe Lender’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and;
(d) The Mortgagor shall pay each such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to the Mortgagor, or (ii) forthwith upon demand by Mortgagee the Lender if, in the opinion of Mortgageethe Lender, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if the Mortgagor shall fail so to do, Mortgagee the Lender may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee Lender to obtain the release and discharge of such liens; and any amount expended by Mortgagee the Lender in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee the Lender may in such case use and apply monies deposited as provided in subsection paragraph (b) above of this Section and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 2 contracts
Samples: Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture Filing (Adcare Health Systems, Inc), Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture Filing (Adcare Health Systems, Inc)
Contests. Notwithstanding anything If any claim shall be made against GE Capital or if any proceeding shall be commenced against GE Capital (including by written notice of such proceeding) for any Collateral Taxes which Aladdin Gaming is obligated to pay pursuant to this Section 4, or if GE Capital shall reasonably determine that any Collateral Taxes which Aladdin Gaming may have an obligation to pay under this Section 4 may be payable, GE Capital shall promptly (and in any event within 30 days) notify Aladdin Gaming in writing (provided that failure to so notify shall not alter GE Capital's rights under Section 4 except to the contrary herein containedextent (and then only to the extent that) such failure precludes or materially adversely affects the ability to conduct a contest of such Collateral Taxes) and shall not take any action with respect to such claim without written consent of Aladdin Gaming (and such consent shall not be unreasonably withheld or unreasonably delayed) for 30 days after receipt of such notice by Aladdin Gaming; provided, Mortgagor however, that in the case of any such claim or proceeding, if GE Capital shall have be required by law or regulation to take action prior to the right end of such 30 day period, GE Capital shall in such notice to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’Aladdin Gaming, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”)so inform Aladdin Gaming, and GE Capital shall not take any action with respect to such claim, proceeding or Collateral Taxes without the consent of Aladdin Gaming (such consent shall not be unreasonably withheld or unreasonably delayed) for 10 days after the receipt of such notice by Aladdin Gaming unless GE Capital shall be required by law or regulation to take action prior to the end of such 10 day period. Provided that no Contested Liens shall constitute an Event of Default hereunderhas occurred and is continuing, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same Aladdin Gaming shall be asserted;
entitled for a period of 30 days from receipt of such notice from GE Capital (b) Mortgagor or such shorter period as GE Capital has notified Aladdin Gaming is required by law or regulation for GE Capital to commence such contest), to request in writing that GE Capital contest the imposition of such Collateral Tax, at Aladdin Gaming's expense. In its sole discretion, GE Capital shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and control the contest, acting through counsel reasonably acceptable to the extent that any such Contested Lien shall be determined adverse to MortgagorAladdin Gaming, or (ii) forthwith upon demand take all reasonable steps to enable Aladdin Gaming to control the contest. The party controlling the contest shall consult in good faith with the other party and its counsel with respect to the contest of such claim for Collateral Taxes (or claim for refund) but the decision regarding what actions to be taken shall be made by Mortgagee ifthe controlling party in its sole judgment; provided, however, that if GE Capital is the controlling party and Aladdin Gaming recommends the acceptance of a settlement offer made by the relevant taxing authority and GE Capital rejects the settlement offer, then the portion of the Collateral Taxes at issue in the claim which are payable by Aladdin Gaming shall not exceed the amount which would have been owed if the settlement offer would have been accepted. In addition, the controlling party shall keep the noncontrolling party reasonably informed as to the progress of the contest and shall provide the noncontrolling party with a copy of (or appropriate excepts from) any reports or claims issued by the relevant taxing authority to the controlling party thereof, in connection with such claim or contest thereof. Notwithstanding anything contained herein to the opinion of Mortgageecontrary, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but GE Capital shall not be required to, pay all to contest (and Aladdin Gaming shall not be permitted to contest) a claim with respect to the imposition of Collateral Taxes if GE Capital waives its right to payment from Aladdin Gaming for such Contested Liens Collateral Taxes (and Lien Amounts and interest and penalties thereon and any claim with respect to such year or any other sums taxable year the contest of which is materially adversely affected as may be necessary in the judgment of the Mortgagee to obtain the release and discharge a result of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidwaiver).
Appears in 2 contracts
Samples: Facilities Agreement (Aladdin Capital Corp), Facilities Agreement (Aladdin Gaming Enterprises Inc)
Contests. Notwithstanding anything If a written claim is made by any taxing authority against Lessor for any Tax with respect to which Lessee is required to indemnify Lessor hereunder, Lessor shall promptly give Lessee written notice of such claim. Lessor's failure to provide such notice to Lessee shall not diminish Lessee's obligations or Lessor's rights hereunder except to the contrary herein containedextent that such failure precludes Lessee's and Lessor's ability to contest such tax claim. If Lessee promptly (and, Mortgagor in any event, within 15 days of receipt of notice from Lessor) requests Lessor to do so, Lessor shall, at Lessee's expense, contest (or, at Lessor's option, require Lessee to contest in Lessee's name, if permitted by law) the validity, applicability or amount of any such Tax. Lessor shall determine in its sole discretion the forum in which the contest of such Tax shall be pursued and whether such contest shall be by (i) resisting payment thereof, if lawful and practicable, (ii) not paying the same except under protest, if protest is necessary or advisable and proper, or (iii) if the payment is made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings. If Lessor determines that such contest shall be by the manner described in either of clauses (ii) or (iii) above, Lessee shall advance sufficient funds on an after-tax, interest-free basis to Lessor to make the payment required. If Lessor contests the validity, applicability or amount of any Tax hereunder, Lessee shall have the right to contest by appropriate legal proceedings diligently prosecuted review and advise Lessor as to all material written submissions to any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s governmental or other liens authority relating to the Tax for which indemnification is sought. Lessor shall consult in good faith with Lessee and its counsel regarding all other material aspects of any such contest. Lessee shall have the right to attend governmental or claims judicial conferences concerning any such tax claim only if such Tax is the only matter that affects Lessor which is pending before the governmental or judicial body. Notwithstanding the foregoing, Lessor shall only be required to contest (and Lessee shall only be permitted to contest) any Tax if (A) independent tax counsel selected and compensated by Lessee is of the opinion that there is a reasonable basis for lien upon contesting the Premises matter in question; (B) Lessee has acknowledged in writing its liability to indemnify Lessor with respect to the Tax in question; (C) Lessee shall pay (and shall acknowledge in writing Lessee's liability to pay) Lessor on demand for all herein called “Contested Liens”reasonable costs and expenses incurred by Lessor in connection with contesting such claim (including, without limitation, all costs, expenses, losses, reasonable legal and accounting fees (including fees associated with Lessor's consultation with independent tax counsel as described herein), disbursements, penalties, interest and no Contested Liens additions to tax); (D) the issue shall constitute not be the same as an issue previously contested hereunder and decided adversely unless independent tax counsel selected and compensated by Lessee is of the opinion that the applicable law has changed, (E) the amount of Tax at issue exceeds $10,000, and (F) if an Event of Default hereunderhas occurred and is continuing under this Agreement, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee Lessee has posted a bond or title indemnity other security in such amount form and form, and issued by a bond or title insuring company, as may be substance satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, Lessor in its sole and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but absolute discretion. Lessor shall not be required toto appeal any judicial decision unless it receives an opinion of independent counsel selected and compensated by Lessee to the effect that it is more likely than not that such appeal would be successful. Under no circumstances shall Lessor be required to appeal a decision to or request a hearing by the United States Supreme Court. Nothing in this Section 8.5 shall require Lessor to contest, pay all or permit Lessee to contest, a claim with respect to the imposition of any Tax if Lessor shall waive its right to indemnification under Section 8.1 hereof with respect to such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidclaim.
Appears in 2 contracts
Samples: Aircraft Lease Agreement (Republic Airways Holdings Inc), Aircraft Lease Agreement (Republic Airways Holdings Inc)
Contests. Notwithstanding anything (a) After the Closing Date, Buyer shall promptly notify Seller or Seller shall promptly notify Buyer in writing of any written notice of a proposed assessment or claim in a Tax Contest of or relating to Buyer, Seller or the Transferred Companies which, if determined adversely to the contrary herein containedtaxpayer, Mortgagor would be grounds for indemnification under this Article X; provided, however, that a failure to give such notice will not affect the rights of a party to indemnification under this Agreement except to the extent, if any, that such failure materially prejudices the other party.
(b) In the case of a Tax Contest that (i) relates to periods ending on or before the Closing Date or (ii) relates to a liability for Taxes for which Seller could have to indemnify Buyer or the Transferred Companies pursuant to this Agreement, Seller shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon control the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) conduct of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contestTax Contest; provided that Buyer shall have the right to participate in lieu all such Tax Contests that are reasonably likely to result in an adverse material effect to Buyer or the Transferred Companies. If, following the delivery of a notice specified in Section 10.4(a) by Buyer on Seller, Seller does not elect to conduct a Tax Contest described in clause (i) or (ii) above (or ceases to actively conduct such payment Mortgagor may furnish a Tax Contest for a period of 60 days), Buyer shall be at liberty (without reference to Mortgagee Seller) to admit, compromise, settle, discharge or otherwise deal with such Tax Contest. Buyer shall control all other Tax Contests; provided that Seller shall have the right to participate in all Tax Contests that are reasonably likely to result in an adverse material effect to Seller. Notwithstanding the foregoing, if a bond or title indemnity in Tax Contest involves amounts for which both Seller and Buyer (including the Transferred Companies) could be liable pursuant to the terms of this Article X, then the party with the larger potential liability shall control such amount Tax Contest and form, and issued by a bond or title insuring company, as may be satisfactory the other party shall have the right to Mortgagee;participate.
(c) Mortgagor In the case of a Tax Contest that is reasonably likely to result in an adverse material effect to the party that does not control such Tax Contest (the “Non-Controlling Party”), (i) the party that controls such Tax Contest, as determined under Section 10.4(b) (the “Controlling Party”), shall diligently prosecute take account of the contest reasonable comments of the Non-Controlling Party in relation to such a Tax Contest which are provided on a timely basis, (ii) no action shall be taken that is not full, true and accurate in all material respects, (iii) all correspondence and communications in relation to such a Tax Contest with the Taxing Authority which is a party to the Tax Contest shall be made through the advisers appointed by the Controlling Party to act on behalf of the Transferred Companies and shall be copied to the Non-Controlling Party, and (iv) the Controlling Party shall inform the Non-Controlling Party of any Contested Lien notification request for a meeting (including any telephonic meeting) with or visit by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture any Taxing Authority and shall ensure that a representative of the Premises, and shall permit Mortgagee to be represented in Non-Controlling Party is present at any such contest and shall pay all expenses incurred, meeting (if so requested in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at writing by the Default Rate until paid, and payable upon demandNon-Controlling Party); and.
(d) Mortgagor Except as set forth in Section 10.4(b), none of Buyer, the Transferred Companies or any Affiliate of any of the foregoing, nor Seller or any Affiliate of Seller, shall pay such Contested Lien enter into any compromise or agree to settle any claim pursuant to any Tax Contest that would adversely affect the other party for any year without the written consent of the other party, which consent may not be unreasonably withheld or delayed. Buyer and all Lien Amounts together with interest Seller agree to cooperate, and penalties thereon (i) if and Buyer agrees to cause the extent that any such Contested Lien shall be determined adverse Transferred Companies to Mortgagor, or (ii) forthwith upon demand by Mortgagee ifcooperate, in the opinion defense against or compromise of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidTax Contest.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Fidelity & Guaranty Life), Stock Purchase Agreement (Harbinger Group Inc.)
Contests. Notwithstanding anything to the contrary herein containedProvided that Tenant shall not be in default under this Lease (beyond expiration of applicable notice and cure periods, Mortgagor if any), Tenant shall have the right to contest by appropriate legal proceedings diligently prosecuted conducted in good faith, in the name of the Tenant, without cost, expense, liability or damage to the Property or to Landlord, the validity or application of any Taxes imposed Legal Requirement and, if compliance with any of the terms of any such Legal Requirement may legally be delayed pending the prosecution of any such proceeding. Tenant may delay such compliance therewith until the final determination of such proceeding (but in no event shall such a delay extend or assessed upon delay the Premises Anticipated Completion Date or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”Commencement Date), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
provided in each case that: (a) Mortgagor Landlord shall forthwith give notice not be subject to civil or criminal, claims, penalty or damages or to prosecution for a crime, nor shall the Property or any equipment and improvements therein or any part thereof be subject to being condemned or vacated, or subject to any lien or encumbrance, by reason of any Contested Lien to Mortgagee at the time the same shall be asserted;
non-compliance or otherwise by reason of such contest; (b) Mortgagor before the commencement of such contest, Tenant shall either pay under protest or deposit with Mortgagee furnish to Landlord the full bond of a surety company satisfactory to Landlord, in form and substance satisfactory to Landlord and in an amount equal to one hundred percent (herein called “Lien Amount”100%) of the cost of such Contested Lien, together compliance (as estimated by Landlord) and shall indemnify Landlord against the cost of such compliance and any liability resulting from or incurred in connection with such amount as Mortgagee may reasonably estimate as interest contest or penalties which might arise during the period of contestnon-compliance (including, without limitation, attorneys fees); provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor such non-compliance or contest shall not constitute or result in any violation of any mortgage or ground lease now or hereafter encumbering the Property, or if any present or future holder of any such mortgage or the lessor’s position under any ground lease (a “Land Lessor”) shall condition such non-compliance or contest upon the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and (d) Tenant shall keep Landlord regularly advised as to the status of such proceedings in good faith and shall diligently prosecute the contest same1 to completion. Landlord shall be deemed subject to prosecution for a crime if Landlord, any present or future holder of any Contested Lien by appropriate legal proceedings having such mortgage, a Land Lessor or any of their officers, directors, partners, shareholders, agents or employees, is charged with a crime of any kind whatever unless such charge is withdrawn five (5) days before such party is required to plead or answer thereto. This section 14.32 shall survive the effect expiration or earlier termination of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidthis Lease.
Appears in 1 contract
Samples: Lease (Aspen Technology Inc /De/)
Contests. Notwithstanding anything to the contrary herein contained, the Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called each, a “Contested LiensLien”), and no Contested Liens Lien shall constitute an Event of Default hereunder, if, but only if:
(a) The Mortgagor shall forthwith give notice of any Contested Lien to the Mortgagee at promptly after the time that the Mortgagor has knowledge that the same shall be have been asserted;
(b) The Mortgagor shall either pay under protest or deposit with the Mortgagee the full amount (herein called the “Lien Amount”) of such Contested Lien, together with such amount as the Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment the Mortgagor may furnish to the Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to the Mortgagee;
(c) The Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and and, if any Event of Default then shall exist under this Mortgage or any other Loan Document, shall permit the Mortgagee to be represented in any such contest and shall pay all reasonable expenses incurred, of the Mortgagee in so doing, including fees and expenses of the Mortgagee’s counsel (all of which amounts expended by the Mortgagee shall be payable by the Mortgagor after demand and, after demand, shall constitute so much additional Indebtedness Indebtedness, bearing interest (at the Default Rate Rate, if applicable) until paid, and payable upon demand); and;
(d) The Mortgagor shall pay each such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to the Mortgagor, or (ii) forthwith upon demand by the Mortgagee if, in the reasonable opinion of the Mortgagee, and notwithstanding any such contest, the Premises shall be in imminent jeopardy or in danger of being forfeited or foreclosed; provided that if the Mortgagor shall fail so to do, the Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by the Mortgagee in so doing shall be payable by the Mortgagor after demand and, after demand, shall constitute so much additional Indebtedness Indebtedness, bearing interest (at the Default Rate Rate, if applicable) until paid, and payable upon demand; and provided further that the Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 1 contract
Contests. Notwithstanding anything to So long as (x) no Event of Default shall have occurred and be continuing and (y) such contest does not create any material risk of the contrary herein containedsale, Mortgagor loss or forfeiture of the Premises or any other material adverse effect upon Landlord, Tenant shall have the right to contest contest, at Tenant’s expense, the amount or validity, in whole or in part, of any Tax, by appropriate legal proceedings diligently prosecuted conducted by Tenant in good faith, without prior payment of such Tax, unless failure to pay would operate as a bar to such contest or interfere materially with the prosecution thereof, in either of which latter events Tenant shall pay the Tax prior to contesting same. Upon the termination of such proceedings, Tenant shall pay such amount of any Taxes imposed such Tax or assessed upon part thereof as is finally determined in such proceedings, the Premises payment of which, pursuant to the foregoing provisions of this Section, shall have been deferred during the prosecution of such proceedings, together with all costs, fees, interest, penalties and other liabilities in connection therewith. If the Term of this Lease shall be terminated or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon expire during the Premises (all herein called “Contested Liens”)course of such proceedings, and no Contested Liens if Tenant, pursuant to the foregoing provisions, shall constitute an Event have deferred payment of Default hereunderthe contested Tax, ifthen Tenant may elect, but only if:
prior to such termination or expiration of the Term, in its sole discretion either (ai) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest deposit into escrow with a bank or deposit with Mortgagee financial institution reasonably acceptable to Landlord the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien contested Tax and all Lien Amounts together with interest and penalties thereon (i) if attributable to such deferred payment, and proceed to the extent that any such Contested Lien shall be determined adverse to Mortgagorconclusion of the contest, or (ii) forthwith upon demand by Mortgagee if, in to duly terminate such proceedings and pay to the opinion appropriate taxing authorities the full amount of Mortgagee, such Tax and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon attributable to such deferred payment. Upon request by Tenant and at Tenant’s sole cost and expense, Landlord, subject to the reasonable approval of Landlord’s counsel, shall execute and deliver any and all documents and take any and all such other sums action as may be necessary to permit Tenant to bring such proceedings in Tenant’s name or by Tenant on behalf of Landlord and otherwise shall facilitate the judgment conduct of such proceedings by Tenant. Any refunds of Taxes paid by Tenant resulting from such contest by Tenant and attributable to any period occurring prior to or during the Term shall be payable to Tenant, even if received after the end of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidTerm.
Appears in 1 contract
Samples: Lease Agreement (Wells Real Estate Investment Trust Inc)
Contests. Notwithstanding anything (a) After the Closing, the Purchaser and the Sellers’ Representative shall promptly notify the other party in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial Tax proceeding involving any Group Company for any Pre-Closing Tax Periods (each such audit or proceeding, a “Tax Contest”).
(b) In the case of a Tax Contest or any audit or administrative or judicial proceeding with respect to any Group Company that solely relates to any Tax period ending on or before the contrary herein containedClosing Date, Mortgagor the Sellers’ Representative shall have the option to control the conduct of such audit or proceeding; provided, however, that (i) the Sellers’ Representative shall not settle such audit or proceeding without the consent of the Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed; and (ii) the Purchaser shall have the right to contest participate (at the Purchaser’s expense) in the conduct of such audit or proceeding. The Sellers’ Representative shall conduct any such audit or proceeding actively, diligently and in good faith, and shall keep the Purchaser reasonably informed of any proceedings with respect thereto. If the Sellers’ Representative does not assume the defense of any such audit or proceeding, the Purchaser may defend the same in such manner as it may deem appropriate, provided that the Purchaser shall not settle such audit or proceeding without the consent of the Sellers’ Representative, which consent shall not be unreasonably withheld, conditioned or delayed. All positions taken in any such audit or proceeding shall be consistent with the provisions of this Agreement, unless otherwise consented by appropriate legal proceedings diligently prosecuted the Purchaser and the Sellers’ Representative. The Purchaser shall control any Tax Contest that relates to a Straddle Period; provided, however, that with respect to any portion of such Tax Contest that relates to Taxes imposed or assessed upon the Premises or for which a Seller may be liable, such Tax Contest may not be settled without the consent of Sellers’ Representative, not to be unreasonably withheld, conditioned or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;delayed.
(c) Mortgagor shall diligently prosecute In the contest case of any Contested Lien by appropriate legal proceedings having Tax Contest in respect of Holdco for any Tax Period that ends on or prior to the effect Closing Date that is subject to the provisions of staying the foreclosure or forfeiture Subchapter C of Subtitle A, Chapter 63 of the PremisesCode, as amended by the Bipartisan Budget Act of 2015, P.L. 114-74 (together with any subsequent amendments thereto, Regulations promulgated thereunder, and shall permit Mortgagee to be represented in published administrative interpretations thereof), or any such contest and shall pay all expenses incurredsimilar provisions or procedures established by any state or local Taxing Authority (the “Partnership Audit Rules”), in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien Sellers’ Representative or its designees shall be determined adverse appointed as the “partnership representative” of Holdco within the meaning of Section 6223(a) of the Code (or any analogous provision in any jurisdiction) (the “Partnership Representative”) and the “designated individual” of Holdco within the meaning the Partnership Audit Rules (or any analogous provision in any jurisdiction) (the “Designated Individual”), provided that if the Sellers’ Representative fails to Mortgagorassume such role, the Purchaser shall designate the Partnership Representative and the Designated Individual, and the Sellers shall cooperate with the Purchaser, and take all actions reasonably requested by the Purchaser, to cause such person as is designated by the Purchaser to act as the Partnership Representative or the Designated Individual, and (ii) forthwith upon demand by Mortgagee ifthe Partnership Representative shall cause Holdco to make the election under Section 6226 of the Code or any analogous provision of the Partnership Audit Rules in any jurisdiction. In the event there is an “Imputed Underpayment”, as defined under Section 6225 of the Code or any analogous provision of the Partnership Audit Rules in the opinion of Mortgageeany jurisdiction, and notwithstanding any such contest, the Premises shall for which an election under Code Section 6226(a) cannot be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee maymade under applicable Law, but requires the parties affected by the Imputed Underpayment to file amended returns that take into account certain adjustments and pay any additional tax due pursuant to Section 6225(c) (a “Section 6225(c) Election”), then those parties affected by the Section 6225(c) Election shall not be required to, promptly pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment Purchaser an amount equal to their share of the Mortgagee Imputed Underpayment. If the Purchaser pays any party’s share of the Imputed Underpayment as a result of a party’s failure to obtain pay the release and discharge Purchaser such amounts, such party shall on demand pay the Purchaser the amount of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing party’s share of the Imputed Underpayment plus interest thereon (accruing from the date such payment was made) at the Default Rate until paidrate of twelve percent (12%) per annum, compounded quarterly on the first day of each calendar quarter, from and payable upon demand; and provided further after the date on which the Purchaser has given notice to such party that Mortgagee may it has made a payment on its behalf. A party’s share of an Imputed Underpayment shall reasonably be determined by the Purchaser in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidgood faith.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Hc2 Holdings, Inc.)
Contests. Notwithstanding anything If a written claim shall be timely made against and timely received by any Indemnitee for any Tax for which Lessee is obligated pursuant to this Section 10(a), such Indemnitee shall notify Lessee in writing promptly of such claim and shall provide Lessee such information regarding such claim as claim as Lessee may reasonably request, but the contrary herein containedfailure to give such notice or to provide such information shall not diminish Lessee's obligation hereunder unless such failure causes a contest to be precluded or such contest right is materially adversely affected by such failure. If a written claim shall be made for any Tax, Mortgagor shall have the right for which Lessee is obligated pursuant to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”Section 10(a), and (x) under applicable law of the taxing jurisdiction Lessee is allowed to directly contest such Tax and, (y) no Contested unindemnified taxes are involved that cannot reasonably be severed from the claim with respect to such Tax, then Lessee shall be permitted, at its expense and in its own name, to contest the imposition of such Tax and (provided that it shall impose no risk of loss, seizure, confiscation or detainment of the Aircraft, the Airframe, the Engine or any part of Lien upon title thereto) to withhold payment during the pending of such contest, if permitted by law. If allowable under local law and permission is granted to Lessee by Indemnitee, which permission shall not be unreasonably withheld, Lessee will be permitted to litigate any Tax claim for which it is obligated to indemnify any Indemnitee provided satisfactory arrangements are concluded which will fully protect such Indemnitee from a final decision adverse to the interest of Lessee and/or Indemnitee. If Lessee cannot contest the Tax in its own name, or if Lessee and Indemnitee agree that any contest should be in the name of Indemnitee, then upon request from Lessee within 30 days after receipt of such notice, such Indemnitee shall at Lessee's expense contest the imposition of such Tax. After considering any views offered by Lessee and Lessee's counsel concerning the forum in which the adjustment is most likely to be favorably resolved, such Indemnitee may in its reasonable discretion select the forum for such contest and determine whether any such contest shall be by (A) resisting payment of such Tax, (B) paying such Tax under protest or (C) paying such Tax and seeking a refund or other repayment thereof, provided, however, if Lessee makes arrangements which fully protect Indemnitee from a final decision adverse to Lessee and/or Indemnitee, Lessee may in its discretion select any forum for such contest and the manner in which it is contested. Lessee shall indemnify Lessor and Lessor's Lender for any adverse consequences resulting from such choice of forum by Lessee. In no event shall such Indemnitee be required or, shall Lessee be permitted, to contest the imposition of any Tax for which Lessee is obligated pursuant to Section 10(a) unless (P) Lessee shall have agreed to pay such Indemnitee on demand, and indemnify such Indemnitee from, and shall so pay and indemnify on demand of such Indemnitee from time to time, all reasonable out-of-pocket costs and expenses that such Indemnitee incurs in contesting such claim or arising out of or relating to such contest (including, without limitation, all out-of-pocket costs, expenses, losses, reasonable legal and accounting fees, disbursements, penalties, interest and additions to tax); (Q) such Indemnitee shall have reasonably determined that the action to be taken will not result in a sale, forfeiture or loss of, or the creation of any Lien (except if Lessee shall have adequately bonded such Lien or otherwise made provision to protect the interests of Lessor in a manner reasonably satisfactory to Lessor) other than Liens for Taxes either not yet due or being contested in good faith by appropriate proceedings so long as such proceedings do not involve any risk of the sale, forfeiture or loss of the Aircraft, Airframe, any Engine or part or any interest therein; (R) if such contest shall constitute be conducted in a manner requiring the payment of the claim, Lessee shall have advanced sufficient funds, on an interest-free basis, to make the payment required, and agreed to indemnify the Indemnitee against any additional net after-tax cost to such Indemnitee of such advance; (S) in the case of any tax being contested in the name of an Indemnitee, such Indemnitee shall have received an opinion of independent tax counsel selected by Lessee and approved by such Indemnitee (which approval shall not be unreasonably withheld) and furnished at Lessee's sole expense to the effect that there is a meritorious basis for contesting such claim; and (T) if an Event of Default hereundershall have occurred and be continuing, ifLessee shall have, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture option of the PremisesIndemnitee, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon either (i) if and provided security for its obligation hereunder reasonably satisfactory to the extent that Indemnitee by placing in escrow sufficient funds to cover any such Contested Lien shall be determined adverse to Mortgagor, contested Tax or otherwise provided satisfactory provisions for payment or (ii) forthwith upon demand paid such Tax. If any Indemnitee shall obtain a refund of all or any part of any Tax paid by Mortgagee ifLessee, in such Indemnitee shall pay Lessee, but not before Lessee shall have made all payments theretofore due to such Indemnitee pursuant to Section 10(a) an amount equal to the opinion Lessor of Mortgagee(X) the amount of such refund, including interest received attributable thereto, and notwithstanding (Y) such Tax payment by Lessee to such Indemnitee plus any other payment by Lessee to such Indemnitee theretofore made pursuant to Section 10(a). If any Indemnitee shall have paid the Lessee any refund of all or part of any Tax paid by Lessee and it is subsequently determined that such Indemnitee was not entitled to the refund, such determination shall be treated as the imposition of a Tax for which Lessee is obligated to indemnify such Indemnitee pursuant to the provisions of Section 10(a). An Indemnitee shall not settle any such claim or contest pursuant to this provision without the written consent of Lessee (which consent shall not be unreasonably withheld). Nothing contained in this Section 10(c) shall require any Indemnitee to contest or continue a contest of a claim which such Indemnitee would otherwise be required to contest pursuant to this Section 10(c), if such Indemnitee shall waive payment by Lessee of any amount that might otherwise be payable to Lessee under this Section 10 in connection with such claim. In the event an Indemnitee contests any Taxes hereunder, the Indemnitee shall apprise Lessee of all material developments with respect to such contest (provided, however, that a failure to so provide shall not relieve Lessee from its obligations to indemnify hereunder), shall forward copies of all material submissions made in such contest, shall consider in good faith any request concerning the Premises conduct of any such contest and, without waiving the right to be indemnified hereunder with respect to such claim, shall be in jeopardy not settle or in danger concede any such contest without the prior written consent of being forfeited or foreclosed; provided that if Mortgagor shall fail so to doLessee, Mortgagee may, but which consent shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidunreasonably withheld.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Vanguard Airlines Inc \De\)
Contests. Notwithstanding anything (A) If any Governmental Authority asserts a Tax Claim in respect of any of the Companies or the Designated Subsidiaries, then the party hereto first receiving notice of such Tax Claim promptly shall provide written notice thereof to the contrary herein containedother party or parties hereto.
(B) The Stockholders shall, Mortgagor at their own expense, have the right to control, defend, settle, compromise, or prosecute any audit, examination, investigation, hearing, or other proceeding (collectively, “Tax Proceeding”) with respect to any of the Companies or the Designated Subsidiaries for any taxable period that ends on or prior to the Closing Date the subject of which is a claim for Taxes for which the Stockholders are responsible pursuant to Section 6 (a “Stockholder Pre-Closing Contest”); provided, however, that (i) the Stockholders shall keep Acquiror duly informed of any such Stockholder Pre-Closing Contest, (ii) Acquiror shall be entitled to receive copies of all correspondence and documents relating to such Stockholder Pre-Closing Contest, (iii) Acquiror shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon participate in such Stockholder Pre-Closing Contest and any mechanics’to employ counsel and other advisors of Acquiror’s choice, materialmenat Acquiror’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”)expense, and no Contested Liens (iv) the Stockholders shall constitute an Event consult with Acquiror in good faith before taking any significant action in connection with such Stockholder Pre-Closing Contest. If the Stockholders elect not to direct a Stockholder Pre-Closing Contest, Acquiror or its Affiliates may assume control of Default hereundersuch Tax Proceeding. In such event, if, but only if:
(a) Mortgagor Acquiror shall forthwith give notice keep the Stockholders informed on a prompt basis regarding the progress and substantive aspects of any Contested Lien to Mortgagee at Stockholder Pre-Closing Contest. Notwithstanding the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lienforegoing, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest respect of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the PremisesStockholder Pre-Closing Contest, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(dA) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon if (i) if and to the extent that any Indemnification Basket has not been attained or exceeded (not taking into account the amount of the claim for Taxes which is the subject of such Contested Lien shall be determined adverse to MortgagorStockholder Pre-Closing Contest), or (ii) forthwith upon demand by Mortgagee if, if (x) the amount of the claim for Taxes which is the subject of such Stockholder Pre-Closing Contest exceeds or is expected to exceed (y) the product of the Value Per Share and the number of the shares of Acquiror Common Stock remaining in the opinion Escrow Fund at the time of Mortgageesuch Stockholder Pre-Closing Contest arises, and notwithstanding any then (I) such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but Stockholder Pre-Closing Contest shall not be required togoverned by the foregoing provisions of this Section 5(d)(iii)(B) and instead Acquiror and the Stockholders shall jointly have the right to control, pay all defend, settle, compromise, or prosecute such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.Stockholder Pre-Closing Contest,
Appears in 1 contract
Samples: Merger Agreement (Ventas Inc)
Contests. Notwithstanding anything (i) In the case of an audit or administrative or judicial proceeding that relates to periods ending at or before the contrary herein containedEffective Time, Mortgagor the GJM Parties shall have the right right, at their expense, to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed participate in and control the conduct of such audit or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, proceeding but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that such audit or proceeding relates solely to a potential adjustment for which the GJM Parties have acknowledged GJM's liability in writing and the issue underlying the potential adjustment does not recur for any period ending subsequent to the Effective Time. The GJM Parties shall keep TPEG fully informed of the progress of any such Contested Lien audit or proceeding and, if it appears in the sole discretion of TPEG, that such audit or proceeding may adversely affect TPEG or TPEG Sub III, TPEG also may participate in any such audit or proceeding. If the GJM Parties do not assume the defense of any such audit or proceeding promptly, TPEG may defend and settle the same (for the GJM Parties' account) in such reasonable manner as it may deem appropriate. In the event that a potential adjustment as to which the GJM Parties would be liable is present in the same proceeding as a potential adjustment for which TPEG or TPEG Sub III would be liable, TPEG shall be determined adverse have the right, at its expense, to Mortgagor, control the audit or proceeding with respect to the latter potential adjustment.
(ii) forthwith upon demand by Mortgagee ifWith respect to a potential adjustment for which both GJM and TPEG and/or TPEG Sub III could be liable, or which involves an issue that recurs for any period ending after the Effective Time (whether or not the subject of audit at such time), (i) both the GJM Parties and TPEG may participate in the opinion of Mortgageeaudit or proceeding, and notwithstanding any such contest, (ii) the Premises audit or proceeding shall be in jeopardy or in danger controlled by that party which would bear the burden of being forfeited or foreclosed; provided the greater portion of the dollar amount of the adjustment and any corresponding adjustments that if Mortgagor shall fail so to do, Mortgagee may, but shall not may reasonably be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary anticipated for future Tax periods. The principle set forth in the judgment preceding sentence shall also govern for purposes of deciding any issue that must be decided jointly (in particular, choice of judicial forum) in circumstances in which separate issues are otherwise controlled hereunder by TPEG and the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited GJM Parties.
(iii) Except as provided in subsection clause (bi) above and of this Section 6(e), neither TPEG nor the GJM Parties shall enter into any compromise or agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a subsequent year without the written consent of the other party, which consent may demand payment upon any bond or title indemnity furnished as aforesaidnot be unreasonably withheld.
Appears in 1 contract
Samples: Merger Agreement (Producers Entertainment Group LTD)
Contests. Notwithstanding anything If any claim shall be made against any Tax -------- Indemnitee or if any proceeding shall be commenced against any Tax Indemnitee (including a written notice of such proceeding) for any Taxes as to which the Lessee may have an indemnity obligation pursuant to Section 7.4, or if any Tax ----------- Indemnitee shall determine that any Taxes as to which the Lessee may have an indemnity obligation pursuant to Section 7.4 may be payable, such Tax Indemnitee ----------- shall promptly notify the Lessee. The Lessee shall be entitled, at its expense, to participate in, and, to the contrary herein containedextent that the Lessee desire to, Mortgagor assume and control the defense thereof; provided, however, that the Lessee shall have -------- ------- acknowledged in writing its obligation to fully indemnify such Tax Indemnitee in respect of such action, suit or proceeding if the right contest is unsuccessful; and, provided further, that the Lessee shall not be entitled to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon assume and control -------- ------- the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice defense of any Contested Lien to Mortgagee such action, suit or proceeding (but the Tax Indemnitee shall then contest, at the time sole cost and expense of the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit Lessee, on behalf of the Lessee with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may representatives reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (iLessee) if and to the extent that that, (A) in the reasonable opinion of such Tax Indemnitee, such action, suit or proceeding (x) involves any meaningful risk of imposition of criminal liability or any material risk of material civil liability on such Contested Tax Indemnitee or (y) will involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on the Leased Property or any part thereof unless the Lessee shall have posted a bond or other security satisfactory to the relevant Tax Indemnitees in respect to such risk, (B) such proceeding involves Claims not fully indemnified by the Lessee which the Lessee and the Tax Indemnitee have been unable to sever from the indemnified claim(s), (C) an Event of Default has occurred and is continuing, (D) such action, suit or proceeding involves matters which extend beyond or are unrelated to the Transaction and if determined adversely could be materially detrimental to the interests of such Tax Indemnitee notwithstanding indemnification by the Lessee or (E) such action, suit or proceeding involves any federal or any state income tax liability of the Tax Indemnitee. With respect to any contests controlled by a Tax Indemnitee, (i) if such contest relates to the federal or any state income tax liability of such Tax Indemnitee, such Tax Indemnitee shall be determined adverse required to Mortgagor, conduct such contest only if the Lessee shall have provided to such Tax Indemnitee an opinion of independent tax counsel selected by the Tax Indemnitee and reasonably satisfactory to the Lessee stating that a reasonable basis exists to contest such claim or (ii) forthwith upon demand in the case of an appeal of an adverse determination of any contest relating to any Taxes, an opinion of such counsel to the effect that such appeal is more likely than not to be successful, provided, however, such -------- ------- Tax Indemnitee shall in no event be required to appeal an adverse determination to the United States Supreme Court. The Tax Indemnitee may participate in a reasonable manner at its own expense and with its own counsel in any proceeding conducted by Mortgagee ifthe Lessee in accordance with the foregoing. Each Tax Indemnitee shall at the Lessee's expense supply the Lessee with such information and documents in such Tax Indemnitee's possession reasonably requested by the Lessee as are necessary or advisable for the Lessee to participate in any action, suit or proceeding to the extent permitted by this Section 7.4. Unless an Event of Default shall have occurred and be continuing, ----------- no Tax Indemnitee shall enter into any settlement or other compromise with respect to any Claim which is entitled to be indemnified under this Section 7.4 ----------- without the prior written consent of the Lessee, which consent shall not be unreasonably withheld, unless such Tax Indemnitee waives its right to be indemnified under this Section 7.4 with respect to such Claim. ----------- Notwithstanding anything contained herein to the contrary, (a) a Tax Indemnitee will not be required to contest (and the Lessee shall not be permitted to contest) a claim with respect to the imposition of any Tax if such Tax Indemnitee shall waive its right to indemnification under this Section 7.4 ----------- with respect to such claim (and any related claim with respect to other taxable years the contest of which is precluded as a result of such waiver) and (b) no Tax Indemnitee shall be required to contest any claim if the subject matter thereof shall be of a continuing nature and shall have previously been decided adversely, unless there has been a change in law which in the opinion of Mortgagee, and notwithstanding any Tax Indemnitee's counsel creates substantial authority for the success of such contest, . Each Tax Indemnitee and the Premises Lessee shall be consult in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such good faith with each other sums as may be necessary in regarding the judgment of the Mortgagee to obtain the release and discharge conduct of such liens; and any amount expended contest controlled by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaideither.
Appears in 1 contract
Contests. Notwithstanding anything If any claim shall be made against any Tax Indemnitee or if any proceeding shall be commenced against any Tax Indemnitee (including a written notice of such proceeding) for any Taxes as to which the Lessees may have an indemnity obligation pursuant to Section 7.4, or if any Tax Indemnitee shall determine that any Taxes as to which the Lessees may have an indemnity obligation pursuant to Section 7.4 may be payable, such Tax Indemnitee shall promptly notify Borders. The related Guarantor and/or the related Lessee shall be entitled, at its expense, to participate in, and, to the contrary herein containedextent that such Guarantor or such Lessee desires to, Mortgagor assume and control the defense thereof; provided, however, that the Guarantors and the Lessees, shall have acknowledged in writing their obligation to fully indemnify such Tax Indemnitee in respect of such action, suit or proceeding if the right contest is unsuccessful; and, provided further, that neither any Guarantor nor any Lessee shall be entitled to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon assume and control the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice defense of any Contested Lien to Mortgagee such action, suit or proceeding (but the Tax Indemnitee shall then contest, at the time sole cost and expense of the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit Guarantors and the Lessees, on behalf of the Guarantors and the Lessees with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may representatives reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (iBorders) if and to the extent that that, (A) in the reasonable opinion of such Tax Indemnitee, such action, suit or proceeding (x) involves any risk of imposition of criminal liability or any material risk of civil liability in excess of $1,000,000 on such Contested Tax Indemnitee or (y) will involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on any Leased Property or any part thereof unless a Guarantor or a Lessee shall have posted a bond or other security satisfactory to the relevant Tax Indemnitees in respect to such risk, (B) such proceeding involves Claims not fully indemnified by the Guarantors and the Lessees which the Guarantors, the Lessees and the Tax Indemnitee have been unable to sever from the indemnified claim(s), (C) an Event of Default has occurred and is continuing, (D) such action, suit or proceeding involves matters which extend beyond or are unrelated to the Transaction and if determined adversely could be materially detrimental to the interests of such Tax Indemnitee notwithstanding indemnification by the Guarantors and the Lessees or (E) such action, suit or proceeding involves the federal or any state income tax liability of the Tax Indemnitee. With respect to any contests controlled by a Tax Indemnitee, (i) if such contest relates to the federal or any state income tax liability of such Tax Indemnitee, such Tax Indemnitee shall be determined adverse required to Mortgagor, conduct such contest only if Borders shall have provided to such Tax Indemnitee an opinion of independent tax counsel selected by the Tax Indemnitee and reasonably satisfactory to Borders stating that a reasonable basis exists to contest such claim or (ii) forthwith upon demand in the case of an appeal of an adverse determination of any contest relating to any Taxes, an opinion of such counsel to the effect that such appeal is more likely than not to be successful, provided, however, such Tax Indemnitee shall in no event be required to appeal an adverse determination to the United States Supreme Court. The Tax Indemnitee may participate in a reasonable manner at its own expense and with its own counsel in any proceeding conducted by Mortgagee ifany Guarantor or any Lessee in accordance with the foregoing. Each Tax Indemnitee shall, at Guarantor's and the Lessees' expense, supply the related Guarantor or Lessee with such information and documents in such Tax Indemnitee's possession as are reasonably requested by such Guarantor or Lessee and are necessary or advisable for such Guarantor or Lessee to participate in any action, suit or proceeding to the extent permitted by this Section 7.4. Unless an Event of Default shall have occurred and be continuing, no Tax Indemnitee shall enter into any settlement or other compromise with respect to any Claim which is entitled to be indemnified under this Section 7.4 without the prior written consent of Borders, which consent shall not be unreasonably withheld, unless such Tax Indemnitee waives its right to be indemnified under this Section 7.4 with respect to such Claim. Notwithstanding anything contained herein to the contrary, (a) a Tax Indemnitee will not be required to contest a Claim with respect to the imposition of any Tax if such Tax Indemnitee shall waive its right to indemnification under this Section 7.4 with respect to such Claim (and any related Claim with respect to other taxable years the contest of which is precluded as a result of such waiver) and (b) no Tax Indemnitee shall be required to contest any Claim if the subject matter thereof shall be of a continuing nature and shall have previously been decided adversely, unless there has been a change in law which in the opinion of Mortgagee, and notwithstanding any Tax Indemnitee's counsel creates substantial authority for the success of such contest, . Each Tax Indemnitee and Borders shall consult in good faith with each other regarding the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge conduct of such liens; and any amount expended contest controlled by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaideither.
Appears in 1 contract
Samples: Master Agreement (Borders Group Inc)
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, hereunder if, but only if:
(a) a. Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) b. Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) c. Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, incurred in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and;
(d) d. Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 1 contract
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith Each Party entitled to indemnification pursuant to Section 8.2 hereof (a “Tax Indemnified Person”) agrees to give written notice to the Indemnifying Person (the “Tax Indemnitor”) of any Contested Lien written notice received by the Tax Indemnified Person or an Affiliate of such Tax Indemnified Person (including, in the case where Buyer is the Tax Indemnified Person, the Company and each Subsidiary thereof) which involves the assertion of any claim, or the commencement of any audit, suit, Action or proceeding (collectively, a “Tax Claim”) in respect of which indemnity may be sought (an “Indemnifiable Tax”) within ten (10) Business Days of such receipt or such earlier time as would allow the Tax Indemnitor to Mortgagee at timely respond to such Tax Claim. The Tax Indemnified Person will give the time Tax Indemnitor such information with respect to the same Tax Claim as the Tax Indemnitor may reasonably request. Such written notice shall be asserted;describe in reasonable detail the facts constituting the basis for such Tax Indemnitor’s interests in such Tax Claim, the nature of the relief sought, and the amount of the claimed Losses (including Taxes).
(b) Mortgagor shall either pay under protest The Tax Indemnitor may, at its own expense, participate in and, upon notice to the Tax Indemnified Person, assume control of the defense of any Tax Claim for which it is the Tax Indemnitor. If the Tax Indemnitor assumes control, it will have the exclusive power to contest or deposit with Mortgagee settle the full amount (herein called “Lien Amount”) Tax Claim and determine the manner in which the contest or settlement occurs, in each case without the participation of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest the Tax Indemnified Person. In no case will a Tax Indemnified Person settle or penalties which might arise during otherwise compromise a Tax Claim without the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;Tax Indemnitor’s prior written consent.
(c) Mortgagor shall diligently prosecute If a Tax Claim potentially involves some Taxes for Pre-Closing Tax Periods for which Seller would be required to indemnify Buyer pursuant to Section 8.2 and other Taxes for Pre-Closing Tax Periods for which Seller would not be required to indemnify Buyer, then, for purposes of this Section 8.4 only, Seller will be the contest of any Contested Lien by appropriate legal proceedings having Tax Indemnitor and Buyer will be the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee Tax Indemnified Person as to be represented in any all such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); andTax Claims.
(d) Mortgagor shall pay The Tax Indemnitor may discharge, at any time, its indemnity obligations by paying the Tax Indemnified Person the amount of the applicable indemnifiable Loss, calculated on the date of such Contested Lien and all Lien Amounts together with interest and penalties thereon payment.
(ie) if and Notwithstanding any provision to the extent that any such Contested Lien contrary herein, Seller or an Affiliate of Seller shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgageehave sole control over, and notwithstanding neither Buyer nor any such contestAffiliate of Buyer shall have a right to control or participate in, the Premises shall be in jeopardy any Tax Claim relating to a consolidated, combined, unitary, affiliated or in danger similar Tax or Tax Return that includes Seller or any Affiliate of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidSeller.
Appears in 1 contract
Samples: Stock Purchase Agreement (Volt Information Sciences, Inc.)
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor (a) Tenant shall have the right to contest the validity, in whole or in part, of any Imposition by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, conducted in good faith but only after payment of such Imposition unless such payment would operate as a bar to such contest or interfere materially with the prosecution thereof, in which event Tenant may postpone or defer payment of such Imposition during the pendency of such proceedings if:
(ai) Mortgagor neither the Demised Premises nor any part thereof would, by reason of such postponement or deferment, be in danger of being sold, forfeited or lost; and
(ii) if Tenant is not an Investment Grade Entity, Tenant shall forthwith give notice have deposited with Landlord 100% the amount so contested and unpaid, together with all interest and penalties in connection therewith and all charges that may or might be assessed against or become a charge on the Demised Premises or any part thereof in such proceedings, and shall have furnished to Landlord additional security reasonably satisfactory to Landlord sufficient to cover such amount, together with interest, penalties and charges for the period which such proceedings may reasonably be expected to take. Landlord shall hold all funds deposited by Tenant pursuant to the preceding sentence in an interest bearing account in a New York Clearing House member bank, and the interest thereon shall be credited to Tenant (Tenant to pay all taxes on such interest). Upon the termination of any Contested Lien such proceedings, Tenant shall pay, or may direct Landlord to Mortgagee pay out of such deposit, the amount of such Imposition or part thereof as finally determined in such proceedings, the payment of which may have been deferred during the prosecution of such proceedings, together with any costs, fees, interest, penalties or other liabilities accrued in connection therewith, and, upon such payment, Landlord shall return to Tenant, with interest, the balance of the amount, if any, deposited with Landlord with respect to such Imposition. If, at any time during the time continuance of such proceedings, Landlord shall reasonably deem the same amount deposited insufficient, Tenant shall, within thirty (30) days after written demand therefor, make an additional deposit of such sum as Landlord reasonably may request, and upon failure of Tenant so to do, Landlord in addition to any other remedy it may have, may apply the amount theretofore deposited to the payment, removal and discharge of such Imposition, and the interest and penalties in connection therewith and any costs, fees or other liability accruing in any such proceedings, and the balance, if any, shall be asserted;returned to Tenant.
(b) Mortgagor Landlord shall either pay under protest or deposit with Mortgagee have the full amount (herein called “Lien Amount”right, at Landlord's election, to participate in any such proceedings brought by Tenant pursuant to Section 5.3(a) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise hereof during the period last five (5) tax years during the Term hereof. Landlord has provided all information and transferred to Tenant all responsibility with respect to the tax certiorari proceedings with respect to the Original Premises which was brought by Landlord for the tax year commencing on July 1, 2001, and ending on June 30, 2002. Tenant has employed counsel reasonably acceptable to Landlord to consummate such proceedings. Landlord terminated the portion of contest; the existing agreement between Landlord and Deloitte & Touche which related to the 2001-2002 tax certiorari proceedings with respect to the Building and Land. In the event that Tenant elects not to bring any such proceedings for any tax year during the Term hereof, Landlord shall have the right, but not the obligation, to bring such proceedings. The reasonable costs and expenses incurred by Landlord in connection with any such proceedings shall be allocated between Landlord and Tenant in proportion to the respective amounts of square footage of the Demised Premises involved in such proceedings and square footage of the balance of the Building involved in such proceedings. Any "net tax refund" (as hereafter defined) payable as a result of any proceedings to review such assessed valuations shall be paid and belong to Tenant (provided that in lieu the event a Default exists under Section 17.1(a) hereof, Landlord shall be entitled to offset the amount of such payment Mortgagor may furnish Default (together with interest at the Interest Rate) against the amount payable to Mortgagee Tenant hereunder) except that any net tax refund payable as a bond result of any proceeding with respect to the 2001-2002 tax year and the tax year in which this Lease terminates shall be apportioned between Landlord and Tenant. For purposes of this Section, the term "net tax refund" shall mean the tax refund actually received by Tenant in contesting the assessed valuation of the Demised Premises (or title indemnity in such amount and form, and issued by a bond or title insuring companythe Original Premises, as may be satisfactory applicable) less the expenses incurred by Tenant and Landlord in connection with such proceeding. Tenant shall have the right to Mortgagee;seek and receive any refund of any tax on its leasehold estate paid by it.
(c) Mortgagor shall diligently prosecute Tenant acknowledges that Landlord entered into a certain Tax Agreement with the contest City of any Contested Lien by appropriate legal proceedings having New York (the effect "Tax Agreement") pertaining to the Building, a copy of staying which is attached hereto as Schedule C. Tenant hereby consents to the foreclosure or forfeiture provisions of the PremisesTax Agreement and agrees that, notwithstanding anything to the contrary in this Section 5.3, Tenant shall comply with the provisions of Paragraphs 5, 6, 7 and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses 12 of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); andTax Agreement.
(d) Mortgagor shall pay such Contested Lien Tenant agrees to indemnify and save harmless Landlord against and from all Lien Amounts together with interest liabilities, obligations, damages, penalties, claims, costs, charges and penalties thereon (i) if expenses incurred by or asserted against Landlord under Paragraph 6 of the Tax Agreement as a result of any claims and to demands made by Tenant or any tenant, subtenant or occupant of the extent that any such Contested Lien shall be determined adverse to MortgagorDemised Premises, or any portion thereof, that the Aggregate Value (ii) forthwith upon demand by Mortgagee if, as defined in the opinion Tax Agreement) or the apportionment of Mortgagee, and notwithstanding any such contest, the Premises shall Aggregate Value should be in jeopardy by a methodology or in danger apportionment of being forfeited or foreclosed; provided Aggregate Value other than that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary set forth in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidTax Agreement.
Appears in 1 contract
Samples: Lease Agreement (Credit Suisse First Boston Usa Inc)
Contests. Notwithstanding anything If written claim is made against an Indemnitee for Taxes with respect to which Lessee is or may be liable for a payment or indemnity hereunder, such Indemnitee will promptly give Lessee notice in writing of such claim; provided, however, that such Indemnitee's failure to give notice will not relieve Lessee of its obligations hereunder, except to the contrary herein contained, Mortgagor shall have extent the right failure to give such notice precludes a contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon of such claim in the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
manner contemplated herein. So long as (a) Mortgagor shall forthwith give notice a contest of such Taxes does not involve any Contested Lien to Mortgagee at danger of the time sale, forfeiture or loss of the same shall be asserted;
Aircraft or any interest therein, (b) Mortgagor shall either pay under protest or deposit Lessee has provided the relevant Indemnitee with Mortgagee the full amount (herein called “Lien Amount”) an opinion of independent tax counsel acceptable to such Contested LienIndemnitee that a meritorious basis exists for contesting such claim, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor Lessee has made adequate reserves for such Taxes or, if required by the relevant Indemnitee, an adequate bond has been posted by Lessee, and (d) Lessee has acknowledged in writing its obligation to indemnify for such Taxes, then such Indemnitee at Lessee's written request will in good faith, with due diligence and at Lessee's sole cost and expense, contest (or, if permitted by Law, permit Lessee to contest in the name of such Indemnitee) the validity, applicability or amount of such Taxes. If such contest is to be initiated by the payment of, and the claiming of a refund for, any Taxes, Lessee shall diligently prosecute advance to the contest relevant Indemnitee sufficient funds (on an interest-free basis) to make such payments and shall indemnify such Indemnitee for any tax consequences resulting from such advance of funds. Although the relevant Indemnitee may consult in good faith with Lessee concerning the conduct of any Contested Lien by appropriate legal contest, such Indemnitee shall control the conduct of all proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee relating to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses which is brought by or on behalf of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest such Indemnitee. Any contest initiated hereunder may be settled or discontinued at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; time provided that if Mortgagor the relevant Indemnitee shall fail so have waived any right to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in indemnification for the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidTaxes being contested.
Appears in 1 contract
Samples: Lease Agreement (Pan Am Corp /Fl/)
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) a. Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) b. Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) c. Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and;
(d) d. Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 1 contract
Contests. (i) Seller and Buyer shall notify the other Party in writing within fourteen (14) days or such shorter period as may be required thereby of receipt by it or any of its Affiliates of written notice of any pending or threatened Tax examination, audit or other administrative or judicial proceeding (a “Tax Contest”) that could reasonably be expected to result in an indemnification obligation of such other Party pursuant to this Agreement and such timely notice shall specify in reasonable detail the basis for any claim included therein and shall include a copy of the relevant portion of any correspondence received from the taxing authority. If the recipient of such notice of a Tax Contest fails to provide such timely notice to such other Party, it shall not be entitled to indemnification for any Taxes arising in connection with such Tax Contest, but only to the extent, if any, that such failure or delay shall have adversely affected the indemnifying Party’s ability to defend against, settle, or satisfy any action, suit or proceeding against it, or any damage, loss, claim, or demand for which the indemnified Party is entitled to indemnification hereunder, and the indemnifying Party’s indemnity obligations shall be reduced to the extent of any Tax or other liability incurred as a result of the delay or failure to receive such timely notice.
(ii) If a Tax Contest relates to any Taxes for which Seller is liable in full hereunder, Seller shall at its expense control the defense and settlement of such Tax Contest. If such Tax Contest relates to any Taxes for which Buyer is liable in full hereunder, Buyer shall at its own expense control the defense and settlement of such Tax Contest. The Party not in control of the defense shall have the right to observe the conduct of any Tax Contest at its expense, including through its own counsel and other professional experts. Buyer and Seller shall jointly represent CEM, CPI, any Investor Subsidiary, any Service Subsidiary or any Project Company in any Tax Contest relating to Taxes for which both are liable hereunder, and fees and expenses related to such representation shall be paid equally by Buyer and Seller.
(iii) Notwithstanding anything to the contrary herein contained, Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”in Section 6.9(d)(ii), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that an issue raised in any such Contested Lien Tax Contest controlled by one Party or jointly controlled could materially affect the liability for Taxes of the other Party, the controlling Party shall be determined adverse to Mortgagornot, or (ii) forthwith upon demand by Mortgagee if, and neither Party in the opinion case of Mortgageejoint control shall, and notwithstanding any such contestenter into a final settlement without the consent of the other Party, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but which consent shall not be required tounreasonably withheld. Where a Party reasonably withholds its consent to any final settlement, pay all such Contested Liens that Party may continue or initiate further proceedings, at its own expense, and Lien Amounts the liability of the Party that wished to settle (as between the consenting and interest the non-consenting Party) shall not exceed the liability that would have resulted from the proposed final settlement including interest, additions to Tax, and penalties thereon that have accrued at that time, and the non-consenting Party shall indemnify the consenting Party for any liability in excess of liability that would have resulted from the proposed final settlement.
(iv) Notwithstanding any other provision of this Agreement to the contrary, if a Tax Contest results in an increase in Income Taxes for which Seller is liable hereunder and such other sums as may be necessary increase is attributable to adjustments based on timing differences which will reverse in Tax periods ending subsequent to the Closing Date, Buyer shall promptly pay to Seller, upon Seller's written request, an amount equal to the present value of the reduction in Income Taxes payable by the Buyer and its Affiliates in future Tax periods by reason of such reversal, determined by using a discount rate of 6% and an assumed Tax rate of 40%, and by assuming that such reduction in Income Taxes will occur in the judgment year or years of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidreversal.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Mdu Resources Group Inc)
Contests. Notwithstanding anything to the contrary herein contained, the Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called each, a “Contested LiensLien”), and no Contested Liens Lien shall constitute an Event of Default hereunder, if, but only if:
(a) The Mortgagor shall forthwith give notice of any Contested Lien to the Mortgagee at the time the same shall be asserted;
(b) The Mortgagor shall either pay under protest or deposit with the Mortgagee the full amount (herein called the “Lien Amount”) of such Contested Lien, together with such amount as the Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment the Mortgagor may furnish to the Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to the Mortgagee;
(c) The Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit the Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of the Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness Secured Obligations bearing interest at the Default Rate highest rate then applicable to the Notes until paid, and payable upon demand); and;
(d) The Mortgagor shall pay each such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to the Mortgagor, or (ii) forthwith upon demand by the Mortgagee if, in the opinion of the Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if the Mortgagor shall fail so to do, the Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by the Mortgagee in so doing shall be so much additional Indebtedness Secured Obligations bearing interest at the Default Rate highest rate then applicable to the Notes until paid, and payable upon demand; and provided further that the Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 1 contract
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor Tenant shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed conducted in good faith, in the name of the Tenant, or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises Landlord (all herein called “Contested Liens”if legally required), and no Contested Liens shall constitute an Event of Default hereunderor both (if legally required), ifwithout cost, but only if:
(a) Mortgagor shall forthwith give notice expense, liability or damage to Landlord, the validity or application of any Contested Lien to Mortgagee at Legal Requirement and, if compliance with any of the time terms of any such Legal Requirement may legally be delayed pending the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee prosecution of any such proceeding, Tenant may delay such compliance therewith until the full amount (herein called “Lien Amount”) final determination of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and formproceeding. In addition to, and issued by a bond or title insuring companynot in limitation of, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest provisions of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture Section 10.01 of the PremisesLease, and Tenant shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon not (i) if generate, store, dispose of, dump, flush or in any way introduce Hazardous Substances into the septic, sewer and to other waste disposal system serving the extent that any such Contested Lien shall be determined adverse to MortgagorPremises, or (ii) forthwith generate, store or dispose of such Hazardous Substances in, on or under the Premises or the Land, except in accordance with all applicable laws. Tenant shall notify Landlord of any incident which would require the filing of notice or notification pursuant to any Legal Requirements as now existing or hereinafter enacted. If, at any time during the Lease Term, Landlord shall believe that any Hazardous Substances have been so generated, stored, or disposed of by Tenant, upon demand by Mortgagee if, Landlord (or in the opinion event of Mortgageeany such generation, storage or disposal of which Tenant has knowledge without demand by Landlord), Tenant, at its sole expense, shall cause a hazardous waste site assessment, so-called, to be made forthwith of the Premises and the Land (including, without limitation, the subsurfaces of the same) likely to have been affected by any such generation, storage, disposal or incident. If such hazardous waste site assessment indicates the existence of hazardous substances on the surface or in the subsurface soils of any of the Premises or the Land, Tenant shall thereupon forthwith take all steps necessary to remove any and all Hazardous Substances and the soils containing same, and notwithstanding such further steps as shall be necessary to remedy the effects of such Hazardous Substances. Tenant shall make available to Landlord all reports and statements produced, and information required to be maintained, or obtained by Tenant with respect to any such contest, the Premises Hazardous Substances. Any such site assessment shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor an investigatory scope acceptable to Landlord. The obligations of Tenant hereunder shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in survive the judgment termination of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidthis Lease.
Appears in 1 contract
Samples: Net Lease (Kofax Image Products Inc)
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor Tenant shall have the right at its own expense to contest the amount or validity, in whole or in part, of any Imposition by appropriate legal proceedings diligently prosecuted any Taxes imposed conducted in good faith but only after payment of such Imposition unless such payment would operate as a bar to such contest or assessed upon interfere materially with the prosecution thereof, in which event, notwithstanding the provisions of SECTION 4.1 hereof, payment of such Imposition shall be postponed if and only so long as:
4.3.1 neither the Premises or which may be or become a lien thereon and nor any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) part thereof would by reason of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest postponement or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee ifdeferment be, in the opinion reasonable judgment of MortgageeLandlord, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided lost, and
4.3.2 Landlord would not be, by reason of such postponement or deferment, subject to any actual or threatened criminal sanctions or penalties or personal liability, as Landlord shall determine in its reasonable judgment, and
4.3.3 Tenant shall have deposited with the affected governmental unit or Landlord cash or other security reasonably acceptable to Landlord in the amount so contested and unpaid, together with all interest and penalties in connection therewith and all charges that if Mortgagor may or might be assessed against or become a charge on the Premises or any part thereof in such proceedings, and
4.3.4 no Mortgage would by reason of such postponement or deferment be, in the reasonable judgment of Landlord, in danger of being put in default or foreclosure. Upon the termination of such proceedings, it shall fail be the obligation of Tenant to pay the amount of such Imposition or part thereof as finally determined in such proceedings, the payment of which may have been deferred during the prosecution of such proceedings, together with any costs, fees (including reasonable counsel fees), interest, penalties or other liabilities in connection therewith, and upon such payment in full, Landlord shall return to Tenant any amount deposited with it with respect to such Imposition as aforesaid. If at any time during the continuance of such proceedings Landlord shall reasonably deem the amount deposited as aforesaid insufficient, Tenant shall, upon demand, make an additional deposit of such additional sums or other acceptable security as Landlord reasonably may request, and upon failure of Tenant so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as the amount theretofore deposited may be necessary in applied by Landlord to the judgment of the Mortgagee to obtain the release payment, removal and discharge of such liens; Imposition and the interest and penalties in connection therewith and any amount expended by Mortgagee costs, fees (including reasonable counsel fees) or other liability accruing against Landlord or the Premises in so doing any such proceedings, and the balance, if any, shall be so much additional Indebtedness bearing interest at returned to Tenant or the Default Rate until paiddeficiency, and payable upon if any, shall be paid by Tenant to Landlord on demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 1 contract
Samples: Lease Agreement (Empire Resorts Inc)
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor Tenant shall have the right right, provided that there is no monetary Event of Default occurring at the time Tenant wishes to exercise such right, in its sole discretion and at its expense to contest the amount or validity, in whole or in part, of any Taxes by appropriate legal proceedings diligently prosecuted conducted in good faith; provided, however, that Tenant delivers to Landlord prior written notice of any such proceeding by Tenant, and that Tenant has paid timely (and continues to pay timely) all Taxes as provided in this Lease to the extent required by applicable Legal Requirements.. Upon the termination of any such proceedings, Tenant shall pay the amount of such Taxes or part thereof, if any, as finally determined in such proceedings, the payment of which may have been deferred during the prosecution of such proceedings (if permitted under the immediately preceding sentence), together with any costs, fees, including attorney's fees, interest, penalties, fines and other liability in connection therewith. Tenant shall be entitled to the refund of any Taxes, penalty, fine and interest thereon to the extent allocable to the Term. Landlord shall join in (at no cost to Landlord) any proceedings referred to in this Section 4.2 to the extent the provisions of any law, rule or regulation at the time in effect shall require that such proceedings be brought by or in the name of Landlord. Landlord shall not contest any Taxes imposed or assessed upon payable within the Premises or Term without Tenant's prior written consent which consent may be or become a lien thereon withheld in Tenant's sole and absolute discretion, provided that such consent shall not be unreasonably withheld during the last twelve (12) months of the Term if Tenant has not exercised its option to extend for the next Extension Term. If Landlord elects to contest any mechanics’Taxes payable within the Term (and Tenant consents to such contest), materialmen’s or other liens or claims (a) such contest shall be at Landlord's sole expense (provided that if the amount of Taxes payable by Tenant are reduced by reason of Landlord's contest, Tenant shall reimburse Landlord for lien upon the Premises (all herein called “Contested Liens”reasonable costs incurred by Landlord in such contest to the extent of the reduction in Taxes from time to time received by Tenant), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) Mortgagor Landlord shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest solely responsible and shall pay all expenses incurred, when due any increase in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any Taxes resulting from such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 1 contract
Samples: Purchase Agreement (Supervalu Inc)
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor Grantor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises Property or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises Property (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor Grantor shall forthwith give notice of any Contested Lien to Mortgagee Grantee at the time the same shall be asserted;
(b) Mortgagor Grantor shall either pay under protest or deposit with Mortgagee Grantee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee Grantee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor Grantor may furnish to Mortgagee Grantee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to MortgageeGrantee;
(c) Mortgagor Grantor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the PremisesProperty, and shall permit Mortgagee Grantee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of MortgageeGrantee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate Rate, in addition to any other interest accruing on such amount, as provided under this Deed to Secure Debt and the other Loan Documents, all limited by the maximum rate permitted by law then in effect, until paid, and payable upon demand); and;
(d) Mortgagor Grantor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to MortgagorGrantor, or (ii) forthwith upon demand by Mortgagee Grantee if, in the opinion of MortgageeGrantee, and notwithstanding any such contest, the Premises Property shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor Grantor shall fail so to do, Mortgagee Grantee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee Grantee to obtain the release and discharge of such liens; and any amount expended by Mortgagee Grantee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate Rate, in addition to any other interest accruing on such amount, as provided under this Deed to Secure Debt and the other Loan Documents, all limited by the maximum rate permitted by law then in effect, until paid, and payable upon demand; and provided further that Mortgagee Grantee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 1 contract
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’', materialmen’s 's or other liens or claims for lien upon the Premises (all herein called “"Contested Liens”"), and no Contested Liens Lien shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “the "Lien Amount”") of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, incurred by Mortgagee in so doing, including reasonable fees and expenses of Mortgagee’s 's counsel (all of which shall constitute so much additional Indebtedness Hereby Secured bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the reasonable opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the EXHIBIT 10.19 judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness Hereby Secured bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply for the purpose monies deposited as provided in subsection (bSubsection 29(b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Sigmatron International Inc)
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) a. Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) b. Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor Mortgagor, may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) c. Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including reasonable fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and;
(d) d. Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined materially adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 1 contract
Contests. Notwithstanding anything If any claim shall be made against any Indemnitee or if any -------- proceeding shall be commenced against any Indemnitee (including a written notice of such proceeding) for any Imposition as to which the Lessee may have an indemnity obligation pursuant to this Section 24.4, or if any Indemnitee shall ------------ determine that any Imposition to which the Lessee may have an indemnity obligation pursuant to this Section 24.4 may be payable, such Indemnitee shall ------------ promptly (and in any event, within 30 days) notify the Lessee in writing (provided that failure to so notify the Lessee within 30 days shall not alter --------- such Indemnitee's rights under this Section 24.4 except to the contrary herein containedextent such ------------ failure precludes or materially adversely affects the ability to conduct a contest of any indemnified Taxes) and shall not take any action with respect to such claim, Mortgagor proceeding or Imposition without the written consent of the Lessee (such consent not to be unreasonably withheld or unreasonably delayed) for 30 days after the receipt of such notice by the Lessee; provided, however, that in -------- ------- the case of any such claim or proceeding, if such Indemnitee shall be required by law or regulation to take action prior to the end of such 30-day period, such Indemnitee shall in such notice to the Lessee, so inform the Lessee, and such Indemnitee shall not take any action with respect to such claim, proceeding or Imposition without the consent of the Lessee (such consent not to be unreasonably withheld or unreasonably delayed) for 10 days after the receipt of such notice by the Lessee unless the Indemnitee shall be required by law or regulation to take action prior to the end of such 10-day period. The Lessee shall be entitled for a period of 30 days from receipt of such notice from the Indemnitee (or such shorter period as the Indemnitee has notified the Lessee is required by law or regulation for the Indemnitee to commence such contest), to request in writing that such Indemnitee contest the imposition of such Tax, at the Lessee's expense. If (x) such contest can be pursued in the name of the Lessee and independently from any other proceeding involving a Tax liability of such Indemnitee for which the Lessee has not agreed to indemnify such Indemnitee, (y) such contest must be pursued in the name of the Indemnitee, but can be pursued independently from any other proceeding involving a Tax liability of such Indemnitee for which the Lessee has not agreed to indemnify such Indemnitee or (z) the Indemnitee so requests, then the Lessee shall be permitted to control the contest of such claim, provided -------- that in the case of a contest described in clause (y), if the Indemnitee ---------- determines in good faith that such contest by the Lessee could have a material adverse impact on the business or operations of the Indemnitee and provides a written explanation to the Lessee of such determination, the Indemnitee may elect to control or reassert control of the contest, and provided, that by -------- taking control of the contest, Lessee acknowledges that it is responsible for the Imposition ultimately determined to be due by reason of such claim, and provided, further, that in determining the application of clauses (x) and (y) of -------- ------- ----------- --- the preceding sentence, each Indemnitee shall take any and all reasonable steps to segregate claims for any Taxes for which the Lessee indemnifies hereunder from Taxes for which the Lessee is not obligated to indemnify hereunder, so that the Lessee can control the contest of the former. In all other claims requested to be contested by the Lessee, the Indemnitee shall control the contest of such claim, acting through counsel reasonably acceptable to the Lessee. In no event shall the Lessee be permitted to contest (or the Indemnitee required to contest) any claim, (A) if such Indemnitee provides the Lessee with a legal opinion of counsel reasonably acceptable to the Lessee that such action, suit or proceeding involves a risk of imposition of criminal liability or will involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on the Property or any part of any thereof unless the Lessee shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become posted and maintained a lien thereon and any mechanics’, materialmen’s bond or other liens or claims for lien upon security satisfactory to the Premises relevant Indemnitee in respect to such risk, (all herein called “Contested Liens”), and no Contested Liens shall constitute B) if an Event of Default hereunder, if, but only if:
(a) Mortgagor has occurred and is continuing unless the Lessee shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee have posted and maintained a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be other security satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the relevant Indemnitee in respect of the Taxes subject to such claim and any and all expenses for which the Lessee is responsible hereunder reasonably foreseeable in connection with the contest of any Contested Lien by appropriate legal proceedings having such claim, (C) unless the effect of staying Lessee shall have agreed to pay and shall pay, to such Indemnitee on demand all reasonable out-of-pocket costs, losses and expenses that such Indemnitee may incur in connection with contesting such Imposition including all reasonable legal, accounting and investigatory fees and disbursements, or (D) if such contest shall involve the foreclosure or forfeiture payment of the PremisesTax prior to the contest, unless the Lessee shall provide to the Indemnitee an interest- free advance in an amount equal to the Imposition that the Indemnitee is required to pay (with no additional net after-tax costs to such Indemnitee). In addition for Indemnitee controlled contests and claims contested in the name of the Indemnitee in a public forum, no contest shall be required: (A) unless 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 24.4(b)) exceeds $500,000 and (B) unless, if requested by the --------------- Indemnitee, the Lessee shall have provided to the Indemnitee an opinion of counsel selected by the Lessee (which may be in-house counsel) (except, in the case of income taxes indemnified hereunder which shall be an opinion of independent tax counsel selected by the Indemnitee and reasonably acceptable to the Lessee) that a reasonable basis exists to contest such claim. In no event shall a Indemnitee be required to appeal an adverse judicial determination to the United States Supreme Court. The party conducting the contest shall consult in good faith with the other party and its counsel with respect to the contest of such claim for Taxes (or claim for refund) but the decisions regarding what actions to be taken shall be made by the controlling party in its sole judgement, provided, however, that if -------- ------- the Indemnitee is the controlling party and the Lessee recommends the acceptance of a settlement offer made by the relevant Governmental Authority and such Indemnitee rejects such settlement offer then the amount for which the Lessee will be required to indemnify such Indemnitee with respect to the Taxes subject to such offer shall not exceed the amount which it would have owed if such settlement offer had been accepted. In addition, the controlling party shall keep the noncontrolling party reasonably informed as to the progress of the contest, and shall permit Mortgagee provide the noncontrolling party with a copy of (or appropriate excerpts from) any reports or claims issued by the relevant auditing agents or taxing authority to be represented the controlling party thereof, in connection with such claim or the contest thereof. Each Indemnitee shall at the Lessee's expense supply the Lessee with such information and documents reasonably requested by the Lessee as are necessary or advisable for the Lessee to participate in any such contest and shall pay all expenses incurredaction, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and suit or proceeding to the extent that permitted by this Section 24.4(b). No Indemnitee shall enter into any --------------- settlement or other compromise or fail to appeal an adverse ruling with respect to any claim which is entitled to be indemnified under this Section 24.4 (and ------------ with respect to which contest is required under this Section 24.4(b)) without --------------- the prior written consent of the Lessee, unless such Contested Lien shall Indemnitee waives its right to be determined adverse indemnified under this Section 26.5 with respect to Mortgagorsuch claim. ------------ Notwithstanding anything contained herein to the contrary, or a Indemnitee will not be required to contest (ii) forthwith upon demand by Mortgagee if, in and the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but Lessee shall not be required to, pay all permitted to contest) a claim with respect to the imposition of any Tax if such Contested Liens Indemnitee shall waive its right to indemnification under this Section 24.4 with respect to ------------ such claim (and Lien Amounts and interest and penalties thereon and any claim with respect to such year or any other sums taxable year the contest of which is materially adversely affected as may be necessary in the judgment of the Mortgagee to obtain the release and discharge a result of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidwaiver).
Appears in 1 contract
Contests. Notwithstanding anything (a) In the event a claim shall be made by the IRS in writing that, if successful, would result in a Loss for which the Facility Sublessee could be required to indemnify the Owner Participant, the Owner Participant hereby agrees promptly to notify the Facility Sublessee in writing of such claim and (except as otherwise provided below) agrees to contest such claim (or cause the Facility Lessor to contest such claim) (including, without limitation, the appeal of any judicial determination in respect of such claim); PROVIDED, HOWEVER, that:
(i) within 30 days after notice of such claim by the Owner Participant to the contrary herein containedFacility Sublessee, Mortgagor the Facility Sublessee shall deliver in writing a request that such claim be contested;
(ii) Oglethorpe shall, at the commencement of the contest and before each level of judicial proceedings, have delivered to the Owner Participant, at the Facility Sublessee's sole expense, a written opinion of independent tax counsel selected by the Owner Participant and reasonably satisfactory to Oglethorpe to the effect that there is a Reasonable Basis for contesting such action, or proposed action, by the IRS (or in the case of an appeal of an adverse judicial decision, the Facility Sublessee shall have furnished the right Owner Participant with an opinion from such independent tax counsel, at Facility Sublessee's sole expense, to the effect that it is more likely than not that such determination will be reversed or substantially modified upon appeal in a manner favorable to the Owner Participant);
(iii) the anticipated amount of indemnification payments that would be payable with respect to all claims raised in the same audit (together with the amount of all similar and logically related claims that have been or could be raised in any other current or potential future audit of the Owner Participant with respect to the Undivided Interest) equals or exceeds $100,000 (or $250,000 in the case of an appeal of a judicial decision) in the aggregate;
(iv) the Facility Sublessee shall have agreed in writing to pay (and shall pay on demand) to the Owner Participant all reasonable costs and expenses that the Owner Participant shall incur in connection with contesting such claim, including attorneys', accountants' and other professional fees and disbursements;
(v) the Owner Participant may, at its sole option, either pay the tax claimed and sxx for a refund or contest by the claim in any permissible forum considering, however, in good faith such requests as the Facility Sublessee and its counsel shall make concerning the most appropriate legal proceedings diligently prosecuted any Taxes imposed forum in which to proceed and other related matters;
(vi) if the Owner Participant shall choose to pay the tax claimed and sxx for a refund, the Facility Sublessee shall advance to the Owner Participant on an interest-free basis and with no additional net after-tax cost to the Owner Participant sufficient funds to pay the tax and interest, penalties and additions to tax payable with respect thereto (to the extent such amount is indemnified against pursuant to Section 4 of this Agreement);
(vii) no Payment Default, Bankruptcy Default or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunderunder the Facility Lease, ifor Sublease Payment Default, but only if:Sublease Bankruptcy Default or Sublease Event of Default shall have occurred and be continuing;
(aviii) Mortgagor the Facility Sublessee shall forthwith give notice acknowledge in writing its liability to indemnify the Owner Participant under this Agreement in respect of such claim if the contest is not successful; PROVIDED that such acknowledgment of liability will not be binding if the contest is resolved by the final decision of a court of competent jurisdiction on a clearly articulated basis which establishes that the Facility Sublessee would not be responsible to indemnify the Owner Participant under Section 4 of this Agreement in the absence of such acknowledgment; and
(ix) the Owner Participant shall not be required to pursue any Contested Lien contest to Mortgagee at the time the same shall be asserted;United States Supreme Court.
(b) Mortgagor The Owner Participant shall either pay under protest or deposit with Mortgagee not settle any such claim described in this Section 7(a) without the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contestFacility Sublessee's consent; provided that in lieu the Owner Participant shall not be required to contest any proposed adjustment and may settle any such proposed adjustment if the Owner Participant shall waive its right to indemnity under this Agreement with respect to such adjustment and shall pay to the Facility Sublessee any amount previously paid or advanced by the Facility pursuant to this Agreement with respect to such adjustment or the contest of such payment Mortgagor may furnish adjustment (other than amounts paid or advanced pursuant to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;this Section 7(a)(iv)).
(c) Mortgagor The Owner Participant (i) shall diligently prosecute the contest not make payment of any Contested Lien claim for at least 30 days after the giving of written notice of such claim to the Facility Sublessee if such forbearance is permitted by appropriate legal proceedings having law and shall inform the effect of staying the foreclosure or forfeiture Facility Sublessee in reasonable detail of the Premisesnature and extent of and purported basis (to the extent of the Owner Participant's knowledge thereof) for such claim, (ii) shall consult with and consider in good faith the Facility Sublessee's suggestions regarding the conduct of such contest (but the manner in which such contest is conducted shall be determined in all respects by the Owner Participant in its sole discretion) and shall keep the Facility Sublessee reasonably informed as to the progress of such contest, and (iii) shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, request of the Facility Sublessee permit the Facility Sublessee and payable upon demandits counsel to review and make suggestions on all submissions to the IRS and any court to the extent such submissions relate to the Loss (it being understood that the Facility Sublessee shall not be permitted to review any portions of such submissions that relate to issues unrelated to the transactions contemplated by the Operative Documents); and. The Facility Sublessee and its counsel shall maintain confidentiality with respect to all such information.
(d) Mortgagor If the Facility Sublessee shall pay have requested the Owner Participant to contest such Contested Lien claim as above provided and shall have duly complied with all Lien Amounts together with interest and penalties thereon (i) if and to the extent that terms of this Section 7, the Facility Sublessee's liability for indemnification under Section 5 of this Agreement shall, at the Facility Sublessee's election, be deferred until a Final Determination of the liability of the Owner Participant. At such time, the Facility Sublessee shall become obligated for the payment of any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in indemnification hereunder not theretofore paid resulting from the opinion outcome of Mortgagee, and notwithstanding any such contest, and the Premises Owner Participant shall become obligated to repay to the Facility Sublessee the amount of any interest-free advance made pursuant to this Section 7(a)(vi) together with any interest received by or credited to the Owner Participant that is attributable to such advance. Such obligations of the Owner Participant and the Facility Sublessee will first be set off against each other, and any difference owing by any party shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor paid within 30 days after such Final Determination.
(e) The Owner Participant shall fail so to do, Mortgagee may, but shall also not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in to contest any proposed adjustment if the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing subject matter thereof shall be so much additional Indebtedness bearing interest at the Default Rate until paid, of a continuing nature and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.there shall
Appears in 1 contract
Samples: Tax Indemnification Agreement (Oglethorpe Power Corp)
Contests. Notwithstanding anything (i) After the Closing, Buyer, on the one hand, and QuickHire, XxXxxxxxx and Xxxxxxxxx, on the other hand, shall promptly notify each other in writing of any demand or claim received by QuickHire, McCarrick, Hochstein, Buyer or ITi from any tax authority or other party with respect to taxes for which QuickHire, XxXxxxxxx and Xxxxxxxxx are liable pursuant to Section 6.5(b)(i). Such notice shall contain factual information (to the contrary extent known) describing the asserted tax liability in reasonable detail and shall include copies of any notice or other document received from any tax authority in respect of any such asserted tax liability.
(ii) QuickHire, XxXxxxxxx and Xxxxxxxxx may elect to control the conduct, through counsel of their own choosing and at their own expense, of any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 6.5(b)(i) (any such audit, claim for refund or proceeding relating to an asserted tax liability is referred to herein containedas a "Contest"). If QuickHire, Mortgagor XxXxxxxxx and Xxxxxxxxx elect to control such a Contest, they shall within twenty (20) calendar days of receipt of the notice of asserted tax liability notify Buyer of their intent to do so, and QuickHire, XxXxxxxxx and Xxxxxxxxx shall have all rights to settle, compromise and/or concede such asserted liability; provided, however, that Buyer shall have the right to contest by appropriate legal proceedings diligently prosecuted consult with QuickHire, XxXxxxxxx and Xxxxxxxxx regarding any Taxes imposed or assessed upon Contest that may affect ITi for any period after the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; Closing Date and provided further that Mortgagee QuickHire, XxXxxxxxx and Xxxxxxxxx shall not have the right to settle, compromise and/or concede any such Contest that may affect ITi for any period after the Closing Date without Buyer's prior written consent, which consent shall not be unreasonably withheld. If QuickHire, XxXxxxxxx and Xxxxxxxxx elect not to control such a Contest or fail to notify Buyer of their election as herein provided, Buyer may pay, compromise or contest such Contest, at its own expense, subject to (i) reimbursement by QuickHire, XxXxxxxxx and Xxxxxxxxx of reasonable third party expenses and (ii) the indemnification obligations of QuickHire, XxXxxxxxx and Xxxxxxxxx under Section 6.5(b)(i).
(iii) In the event that Xxxxxxxxx or any of his affiliates shall after the Closing take any position in any tax return, or reach any settlement or agreement on audit, regarding ITi which is in any manner inconsistent with any position taken by Xxxxxxxxx in any filing, settlement or agreement made by Xxxxxxxxx prior to the Closing and such case use inconsistent position (i) requires the payment by Buyer of more tax than would have been required to be paid had such position not been taken or such settlement or agreement not been reached, (ii) affects the determination of useful life, basis or method of depreciation, amortization or accounting of any of the assets or properties of ITi or (iii) accelerates the time at which any tax must be paid by Buyer, then Xxxxxxxxx, in each such case, shall provide timely and apply monies deposited as provided reasonable notice to Buyer of such position and QuickHire, XxXxxxxxx and Xxxxxxxxx shall, jointly and severally, indemnify Buyer and hold it harmless from any tax liability or tax cost or any loss arising from, in subsection (b) above and may demand payment upon any bond connection with or title indemnity furnished as aforesaidotherwise with respect to such position.
Appears in 1 contract
Samples: Asset and Stock Purchase Agreement (Monster Worldwide Inc)
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor the Grantor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called each, a “Contested LiensLien”), and no Contested Liens Lien shall constitute an Event of Default hereunderunder this Deed to Secure Debt, if, but only if:
(a) Mortgagor The Grantor shall forthwith give notice of any Contested Lien to Mortgagee the Grantee at the time the same shall be asserted;
(b) Mortgagor The Grantor shall either pay under protest or deposit with Mortgagee the Grantee the full amount (herein called the “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee the Grantee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor the Grantor may furnish to Mortgagee the Grantee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgageethe Grantee;
(c) Mortgagor The Grantor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee the Grantee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgageethe Grantee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and;
(d) Mortgagor The Grantor shall pay each such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagorthe Grantor, or (ii) forthwith upon demand by Mortgagee the Grantee if, in the opinion of Mortgageethe Grantee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor the Grantor shall fail so to do, Mortgagee the Grantee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee Grantee to obtain the release and discharge of such liens; and any amount expended by Mortgagee the Grantee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee the Grantee may in such case use and apply monies deposited as provided in subsection paragraph (b) above of this Section and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 1 contract
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor Borrowers shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called each, a “Contested Liens”), and no Contested Liens Lien shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor Borrowers shall forthwith give notice of any Contested Lien to Mortgagee the Bank at the time the same shall be assertedasserted and Borrowers shall have received notice thereof from Tenant;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee The provisions of Section 4.4 of the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgageeapplicable Lease are complied with;
(c) Mortgagor Borrowers shall cause the Tenant to diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand)proceedings; and
(d) Mortgagor Borrowers shall pay each such Contested Lien and all Lien Amounts lien amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to MortgagorBorrowers, or (ii) forthwith upon demand by Mortgagee the Bank if, in the opinion of Mortgageethe Bank, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor Borrowers shall fail so to do, Mortgagee the Bank may, but shall not be required to, pay all such Contested Liens and Lien Amounts lien amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee Bank to obtain the release and discharge of such liens; and any amount expended by Mortgagee the Bank in so doing shall be so much additional Indebtedness Loan bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 1 contract
Samples: Loan and Security Agreement (Inland American Real Estate Trust, Inc.)
Contests. (i) Seller and Buyer shall notify the other Party in writing within ten (10) Business Days or such shorter period as may be required thereby of receipt by it or any of its Affiliates of written notice of any pending or threatened Tax examination, audit or other administrative or judicial proceeding (a “Tax Contest”) that could reasonably be expected to result in an indemnification obligation of such other Party pursuant to this Agreement and such timely notice shall specify in reasonable detail the basis for any claim included therein and shall include a copy of the relevant portion of any correspondence received from the taxing authority. If the recipient of such notice of a Tax Contest fails to provide such timely notice to such other Party, it shall not be entitled to indemnification for any Taxes arising in connection with such Tax Contest, but only to the extent, if any, that such failure or delay shall have adversely affected the indemnifying Party’s ability to defend against, settle, or satisfy any action, suit or proceeding against it, or any damage, loss, claim, or demand for which the indemnified Party is entitled to indemnification hereunder, and the indemnifying Party’s indemnity obligations shall be reduced to the extent of any Tax or other liability incurred as a result of the delay or failure to receive such timely notice.
(ii) If a Tax Contest relates to any Taxes for which Seller is liable in full hereunder, Seller shall at its expense control the defense and settlement of such Tax Contest. If such Tax Contest relates to any Taxes for which Buyer is liable in full hereunder, Buyer shall at its own expense control the defense and settlement of such Tax Contest. The Party not in control of the defense shall have the right to observe the conduct of any Tax Contest at its expense, including through its own counsel and other professional experts. Buyer and Seller shall jointly represent the Target Entities in any Tax Contest relating to Taxes for which both are liable hereunder, and fees and expenses related to such representation shall be paid equally by Buyer and Seller.
(iii) Notwithstanding anything to the contrary herein contained, Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”in Section 6.9(c)(ii), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that an issue raised in any such Contested Lien Tax Contest controlled by one Party or jointly controlled could materially affect the liability for Taxes of the other Party, the controlling Party shall be determined adverse to Mortgagornot, or (ii) forthwith upon demand by Mortgagee if, and neither Party in the opinion case of Mortgageejoint control shall, and notwithstanding any such contestenter into a final settlement without the consent of the other Party, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but which consent shall not be required tounreasonably withheld. Where a Party reasonably withholds its consent to any final settlement, pay all such Contested Liens that Party may continue or initiate further proceedings, at its own expense, and Lien Amounts the liability of the Party that wished to settle (as between the consenting and interest the non-consenting Party) shall not exceed the liability that would have resulted from the proposed final settlement including interest, additions to Tax, and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest that have accrued at the Default Rate until paidthat time, and payable upon demand; and provided further the non-consenting Party shall indemnify the consenting Party for any liability in excess of liability that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidwould have resulted from the proposed final settlement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Black Hills Corp /Sd/)
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor Tenant shall have the right, after at least ten (10) days prior written notice to Landlord (or such shorter period as may be required at Law in order to preserve the right to do so), to contest the amount or validity of any Imposition or Law or lien by appropriate legal proceedings diligently prosecuted conducted in good faith and with due diligence, at its sole cost and expense. If Tenant has not yet made the Minimum Investment, or deposited into escrow under terms and conditions reasonably satisfactory to Landlord the amount by which the Minimum Investment then exceeds the Investment, then, Tenant shall furnish to Landlord security reasonably satisfactory to Landlord against any Taxes imposed claim, loss, liability or assessed upon expense incurred as a result of such nonpayment or delay therein. In the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice event of any Contested Lien such contest, if the final determination thereof is adverse to Mortgagee at Tenant, then Tenant shall pay fully the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of amounts involved in such Contested Liencontest, together with any penalties, fines, interests, costs and expenses that may have accrued thereon or that may result from any such amount contest by Tenant, and after such payment by Tenant, Landlord will promptly return to Tenant such security as Mortgagee may reasonably estimate as interest Landlord shall have received in connection with such contest, unless such adverse determination results directly from or penalties is otherwise directly related to Landlord's failure to comply with its obligations under this Lease, or Landlord's negligence or misconduct, in which might arise during the period of contest; provided that in lieu event, Landlord shall immediately after written notice of such payment Mortgagor may furnish adverse determination return such deposit to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor Tenant. Landlord shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented join in any such contest and proceeding if any Law now or hereafter in effect shall pay all expenses incurredrequire that such proceedings be brought by and/or in the name of Landlord or any owner of the Private Parcel. Neither Landlord nor the Private Parcel shall be subjected to any liability for the payment of any costs, in so doingfees, including fees and attorneys' fees, or expenses of Mortgagee’s counsel in connection with any such proceeding (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and except to the extent that such adverse determination results from or is otherwise related to Landlord's failure tocomply with its obligations under this Lease, or Landlord's negligence or misconduct). Tenant shall be entitled to any refund of any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest Imposition and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended or interest thereon, which shall have been paid by Mortgagee in so doing Tenant or paid by Landlord, for which Landlord shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidhave been fully reimbursed.
Appears in 1 contract
Samples: Parcel Lease (Premier Parks Inc)
Contests. Notwithstanding anything If any claim shall be made against any Indemnitee or if any proceeding shall be commenced against any Indemnitee (including a written notice of such proceeding) for any Imposition as to which Lessee may have an indemnity obligation pursuant to this Section 12.5, or if any Indemnitee shall determine that any Imposition for which Lessee may have an indemnity obligation pursuant to this Section 12.5 may be payable, such Indemnitee shall promptly (and in any event, within 30 days) notify Lessee in writing (provided that failure to so notify Lessee within 30 days shall not alter such Indemnitee's rights under this Section 12.5, except to the contrary herein containedextent such failure precludes or materially adversely affects the ability to conduct a contest of any indemnified Imposition) and shall not take any action with respect to such claim, Mortgagor proceeding or Imposition without the written consent of Lessee (such consent not to be unreasonably withheld or unreasonably delayed) for 30 days after the receipt of such notice by Lessee; provided, however, that in the case of any such claim or proceeding, if such Indemnitee shall be required by law or regulation to take action prior to the end of such 30-day period, such Indemnitee shall in such notice to Lessee, so inform Lessee, and such Indemnitee shall not take any action with respect to such claim, proceeding or Imposition without the consent of Lessee (such consent not to be unreasonably withheld or unreasonably delayed) for 10 days after the receipt of such notice by Lessee, unless the Indemnitee shall be required by law or regulation to take action prior to the end of such 10-day period. Lessee shall be entitled for a period of 30 days from receipt of such notice from the Indemnitee (or such shorter period as the Indemnitee has notified Lessee is required by law or regulation for the Indemnitee to commence such contest), to request in writing that such Indemnitee contest such Imposition, at Lessee's expense. If (x) such contest can be pursued in the name of Lessee and independently from any other proceeding involving an Imposition for which Lessee has not agreed to indemnify such Indemnitee, (y) such contest must be pursued in the name of the Indemnitee, but can be pursued independently from any other proceeding involving an Imposition for which Lessee has not agreed to indemnify such Indemnitee or (z) the Indemnitee so requests, then Lessee shall be permitted to control the contest of such claim, provided that in the case of a contest described in any of clause (x), (y) or (z) if the Indemnitee determines in good faith that such contest by Lessee could have a material adverse impact on the right business or operations of the Indemnitee and provides a written explanation to Lessee of such determination, the Indemnitee may elect to control or reassert control of the contest, and provided, that by taking control of the contest, Lessee acknowledges that it is responsible for the Imposition ultimately determined to be due by reason of such claim, and provided, further, that in determining the application of clauses (x) and (y) of the preceding sentence, each Indemnitee shall take any and all reasonable steps to segregate claims for any Impositions for which Lessee indemnifies hereunder from Impositions for which Lessee is not obligated to indemnify hereunder, so that Lessee can control the contest of the former. In all other claims requested to be contested by Lessee, the Indemnitee shall control the contest of such claim, acting through counsel reasonably acceptable to Lessee. In no event shall Lessee be permitted to contest by appropriate (or the Indemnitee required to contest) any claim (A) if such Indemnitee provides Lessee with a legal proceedings diligently prosecuted opinion of independent counsel that such action, suit or proceeding involves a material risk of imposition of criminal liability or will involve a material risk of the sale, forfeiture or loss of, or the creation of any Taxes imposed or assessed upon Lien (other than a Permitted Lien) on the Premises or which may be or become any part of any thereof unless Lessee shall have posted and maintained a lien thereon and any mechanics’, materialmen’s bond or other liens or claims for lien upon security reasonably satisfactory to the Premises relevant Indemnitee in respect to such risk, (all herein called “Contested Liens”), and no Contested Liens shall constitute B) if an Event of Default hereunderhas occurred and is continuing, if, but only if:
(a) Mortgagor unless Lessee shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee have posted and maintained a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be other security reasonably satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the relevant Indemnitee in respect of the Impositions subject to such claim and any and all expenses for which Lessee is responsible hereunder reasonably foreseeable in connection with the contest of any Contested Lien by appropriate legal proceedings having such claim, (C) unless Lessee shall have agreed to pay and shall pay to such Indemnitee on demand all reasonable out-of-pocket costs, losses and expenses that such Indemnitee may incur in connection with contesting such Imposition, including all reasonable legal, accounting and investigatory fees and disbursements, or (D) if such contest shall involve the effect of staying the foreclosure or forfeiture payment of the PremisesImpositions prior to the contest, unless Lessee shall provide to the Indemnitee an interest-free advance in an amount equal to the Imposition that the Indemnitee is required to pay (with no additional net after-tax costs (including Taxes) to such Indemnitee). In addition, for Indemnitee-controlled contests and claims contested in the name of the Indemnitee in a public forum, no contest shall be required: (A) unless 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 Lessee may be liable to pay an indemnity under this Section 12.5 exceeds $50,000 and (B) unless, if requested by the Indemnitee, Lessee shall have provided to the Indemnitee an opinion of counsel selected by Lessee (which may be in-house counsel) that a reasonable basis exists to contest such claim. In no event shall an Indemnitee be required to appeal an adverse judicial determination to the United States Supreme Court. The party conducting the contest shall consult in good faith with the other party and its counsel with respect to the contest of such claim for Impositions (or claim for refund) but the decisions regarding what actions to be taken shall be made by the controlling party in its sole judgement, provided, however, that if the Indemnitee is the controlling party and Lessee recommends the acceptance of a settlement offer made by the relevant Governmental Authority and such Indemnitee rejects such settlement offer then the amount for which Lessee will be required to indemnify such Indemnitee with respect to the Taxes subject to such offer shall not exceed the amount which it would have owed if such settlement offer had been accepted. In addition, the controlling party shall keep the noncontrolling party reasonably informed as to the progress of the contest, and shall permit Mortgagee provide the noncontrolling party with a copy of (or appropriate excerpts from) any reports or claims issued by the relevant auditing agent or taxing authority to the controlling party thereof, in connection with such claim or the contest thereof. Each Indemnitee shall supply Lessee with such information and documents reasonably requested by Lessee as are necessary or advisable for Lessee to participate in any action, suit or proceeding to the extent permitted by this Section 12.5(b), and Lessee shall promptly reimburse such Indemnitee for the reasonable out-of-pocket expenses of supplying such information and documents. No Indemnitee shall enter into any settlement or other compromise or fail to appeal an adverse ruling with respect to any claim which is entitled to be represented in indemnified under this Section 12.5 (and with respect to which contest is required under this Section 12.5(b)) without the prior written consent of Lessee (such consent not to be unreasonably withheld), unless such Indemnitee waives its right to be indemnified under this Section 12.5 with respect to such claim. Notwithstanding anything contained herein to the contrary, an Indemnitee will not be required to contest (and Lessee shall not be permitted to contest) a claim with respect to any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon Imposition if (i) if such Indemnitee shall waive its right to indemnification under this Section 12.5 with respect to such claim (and any claim with respect to such year or any other taxable year, the extent that any contest of which is materially adversely affected as a result of such Contested Lien shall be determined adverse to Mortgagor, waiver) or (ii) forthwith upon demand by Mortgagee ifsuch Imposition is the sole result of a claim of a continuing and consistent nature, which claim has previously been resolved against the relevant Indemnitee (unless a change in the law or facts has occurred since such prior adverse resolution and Lessee provides an opinion of Mortgagee, and notwithstanding any independent tax counsel to the effect that it is more likely than not that such contest, the Premises shall be change in jeopardy law or facts will result in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment a favorable resolution of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest claim at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidissue).
Appears in 1 contract
Samples: Participation Agreement (Adc Telecommunications Inc)
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor Except as provided in Section 5.3(e), if a Tax Authority assesses, asserts, proposes, recommends or attempts to collect on an NRG Proposed Adjustment, or submits a request for information that reasonably may relate to an NRG Proposed Adjustment or potential NRG Proposed Adjustment, Xcel shall forthwith give provide NRG with prompt notice thereof and NRG shall elect in writing, within ten business days of receipt of notice from Xcel, to contest the NRG Proposed Adjustment or potential NRG Proposed Adjustment in the manner provided in Section 5.3(b) or to agree not to contest the NRG Proposed Adjustment and pay Xcel any Contested Lien amount required to Mortgagee at the time the same shall be asserted;paid under Section 5.1.
(b) Mortgagor If NRG elects to contest the NRG Proposed Adjustment, NRG shall either pay under protest or deposit with Mortgagee keep Xcel reasonably informed of the full amount contest and NRG's resolution of the contest shall be binding on Xcel (herein called “Lien Amount”) of such Contested Liensubject to Section 5.3(h)), together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; Xcel Affiliated Companies, NRG and the NRG Affiliated Companies, provided that NRG pays Xcel any amount required to be paid under Section 5.
1. Without limiting the generality of the foregoing, if NRG elects to contest an NRG Proposed Adjustment,
(i) NRG shall assume responsibility for contesting the NRG Proposed Adjustment and settling or litigating it to a Final Determination, all at NRG's sole cost and expense;
(ii) Xcel shall take all steps reasonably necessary to authorize NRG to contest the NRG Proposed Adjustment, including executing powers of attorney and promptly delivering to NRG any written materials received by Xcel from any source other than NRG relating to the NRG Proposed Adjustment;
(iii) NRG shall provide Xcel with copies of all material documents received from or submitted to the Tax Authority in lieu connection with the contest, including copies of such any Final Determination, Form 870 or other documentation relating to resolution of the contest;
(iv) if NRG decides to pay the NRG Proposed Adjustment and xxx for a refund, NRG shall advance to Xcel, on an interest-free basis and without duplication, the amount of Tax required to be paid by Xcel in connection with the NRG Proposed Adjustment;
(v) if NRG and the Tax Authority enter into an agreement that does not result in a Final Determination, including an agreement on Form 870, NRG shall advance to Xcel, on an interest-free basis and without duplication, the amount of Tax required to be paid by Xcel in connection with the NRG Proposed Adjustment; and
(vi) if a Final Determination requires that Xcel make a payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such the Tax Authority with respect to the NRG Proposed Adjustment, NRG, without duplication, shall pay to Xcel the amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;required under Section 5.1.
(c) Mortgagor Payments with respect to amounts contested under Section 5.3(b) shall diligently prosecute be made as follows: Xcel and NRG shall agree on the contest of any Contested Lien by appropriate legal proceedings having date on which payment will be made to the effect of staying Tax Authority (the foreclosure or forfeiture of "Payment Date"), NRG shall remit the Premisespayment amount to Xcel no later than two business days before the Payment Date, and Xcel shall permit Mortgagee make payment to the Tax Authority no later than the Payment Date. If the relevant Tax Law or Tax Authority establishes a date by which payment to the Tax Authority must be represented in made, that date shall be the Payment Date. If Xcel receives a refund of an amount paid pursuant to Section 5.3(b), Xcel shall remit the refund amount to NRG, together with any such contest and shall pay all expenses incurredinterest received thereon, in so doing, including fees and expenses within two business days of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); andreceipt thereof.
(d) Mortgagor shall pay such Contested Lien Except as provided in Section 5.3(e), and all Lien Amounts together without regard to whether Xcel obtains a Final Determination with interest and penalties thereon respect to the NRG Proposed Adjustment in issue, if NRG (i) if elects not to contest an NRG Proposed Adjustment, (ii) elects to contest an NRG Proposed Adjustment and fails to the extent that any such Contested Lien shall be determined adverse to Mortgagorobtain a Final Determination, or (iiiii) forthwith upon demand by Mortgagee iffails to give Xcel the NRG election notice required under Section 5.3(a), in the opinion of Mortgagee, and notwithstanding any such contest, the Premises NRG shall be deemed to have agreed to the NRG Proposed Adjustment and shall pay Xcel any amount required to be paid under Section 5.1 on or before the later to occur of (x) the date Xcel makes payment to the Tax Authority and (y) ten business days after NRG receives notice from Xcel of the amount required to be paid, along with a computation in jeopardy or sufficient detail to inform NRG of the basis for its payment obligation and of the manner in danger of being forfeited or foreclosed; which its obligation was computed.
(e) Nothing in this Section 5.3 shall prevent NRG from contending that an asserted NRG Proposed Adjustment is not a matter for which NRG is liable under Section 5.1, provided that if Mortgagor NRG gives Xcel written notice to that effect no later than fifteen business days after receipt of the Xcel notice described in Section 5.3(a). Any dispute arising under this Section 5.3(e) shall fail so be resolved in accordance with the procedures set forth in Section 7.10. If a dispute is resolved in Xcel's favor, NRG shall pay Xcel any amount that NRG owes under Section 5.1 at the time of the resolution within ten business days of the date of resolution and any other amount owed under Section 5.1 in accordance with the other provisions of this Section 5. NRG may not contest an asserted NRG Proposed Adjustment and also contend that it is not a matter for which NRG is liable under Section 5.
(f) If a contest or other resolution of a Tax Item of NRG results in Xcel's receipt of a refund or realization of a Tax Benefit other than a refund, Xcel shall pay the refund or the amount of the other Tax Benefit to doNRG within two business days of receipt or realization thereof, Mortgagee maytogether with any interest allowed thereon.
(g) Sections 5.3(b), (c), (d) and (f), but not Sections 5.3(a) or (e), shall not be required toapply to the NRG Proposed Adjustments proposed or asserted by a Tax Authority before the date of this Agreement, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary which adjustments are described on Schedule 5.3 to this Agreement, together with their agreed disposition.
(h) Nothing in this Section 5.3 shall waive Xcel's rights under the judgment Settlement Agreement if NRG is in breach of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (bSection 6(e) above and may demand payment upon any bond or title indemnity furnished as aforesaid7(c) thereof.
Appears in 1 contract
Contests. Notwithstanding anything Mortgagor may contest, by any and all appropriate administrative, trial or appellate proceedings, or any combination thereof, and in Mortgagee’s name, if required by law, the amount, validity, enforceability or application of any Imposition that Mortgagor is required to pay or perform to any person or entity other than Mortgagee by any provision of this Mortgage or the contrary herein contained, other Loan Documents if and only for so long as: (i) Mortgagor shall have the right notifies Mortgagee in writing of its intent to contest the Imposition; (ii) such contest suspends the collection or enforcement of the item(s) contested; (iii) no part of the Collateral will be subject to loss, sale or forfeiture before final determination of any such contest; (iv) neither Mortgagor nor Mortgagee will be subject to any criminal liability; (v) Mortgagor furnishes such security as may be required by appropriate legal proceedings law in connection with each such contest; (vi) the value, usefulness and marketability of the Collateral will not be adversely impaired by any such contest; (vii) Mortgagor otherwise continues to pay and perform, as the case may be, the Debt and Mortgagor’s obligations under this Mortgage; (viii) Mortgagor otherwise is not in default under any provision of the Loan Documents; (ix) each such contest is continuously prosecuted diligently prosecuted to final determination; (x) Mortgagor pays or causes to be paid, and defends, indemnifies and holds Mortgagee harmless of and from any Taxes and all losses, judgments, decrees and costs (including all reasonable attorneys’ fees) incurred in connection with each such contest; (xi) Mortgagor, promptly following final determination of each such contest, fully pays and discharges all amounts that may be levied, assessed, charged, imposed or assessed upon the Premises or which may otherwise determined to be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lienpayable, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount all penalties, fines, interests, costs and formexpenses, and issued by a bond or title insuring companyotherwise complies with such final determination, as may be satisfactory at Mortgagor’s sole cost and expense; and (xii) such liens are not filed against the Mortgaged Property pursuant to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture Law of the PremisesState of New York, in which event such liens must be discharged or deferred to bond pursuant to Paragraph 6 above before Mortgagor contests such liens. So long as Mortgagor complies with the foregoing and shall permit Mortgagee to be represented in any such contest is promptly reimbursed for all costs and shall pay all expenses incurred, Mortgagee will cooperate with Mortgagor in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together connection with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 1 contract
Samples: Purchase Money Mortgage (Northeast Community Bancorp Inc)
Contests. Notwithstanding anything (i) In the case of an audit or administrative or judicial proceeding that relates to periods ending at or before the contrary herein containedEffective Time, Mortgagor the GJP Parties shall have the right right, at their expense, to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed participate in and control 50 the conduct of such audit or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, proceeding but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that such audit or proceeding relates solely to a potential adjustment for which the GJP Parties have acknowledged GJP's liability in writing and the issue underlying the potential adjustment does not recur for any period ending subsequent to the Effective Time. The GJP Parties shall keep TPEG fully informed of the progress of any such Contested Lien audit or proceeding and, if it appears in the sole discretion of TPEG, that such audit or proceeding may adversely affect TPEG or TPEG Sub II, TPEG also may participate in any such audit or proceeding. If the GJP Parties do not assume the defense of any such audit or proceeding promptly, TPEG may defend and settle the same (for the GJP Parties' account) in such reasonable manner as it may deem appropriate. In the event that a potential adjustment as to which the GJP Parties would be liable is present in the same proceeding as a potential adjustment for which TPEG or TPEG Sub II would be liable, TPEG shall be determined adverse have the right, at its expense, to Mortgagor, control the audit or proceeding with respect to the latter potential adjustment.
(ii) forthwith upon demand by Mortgagee ifWith respect to a potential adjustment for which both GJP and TPEG and/or TPEG Sub II could be liable, or which involves an issue that recurs for any period ending after the Effective Time (whether or not the subject of audit at such time), (i) both the GJP Parties and TPEG may participate in the opinion of Mortgageeaudit or proceeding, and notwithstanding any such contest, (ii) the Premises audit or proceeding shall be in jeopardy or in danger controlled by that party which would bear the burden of being forfeited or foreclosed; provided the greater portion of the dollar amount of the adjustment and any corresponding adjustments that if Mortgagor shall fail so to do, Mortgagee may, but shall not may reasonably be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary anticipated for future Tax periods. The principle set forth in the judgment preceding sentence shall also govern for purposes of deciding any issue that must be decided jointly (in particular, choice of judicial forum) in circumstances in which separate issues are otherwise controlled hereunder by TPEG and the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited GJP Parties.
(iii) Except as provided in subsection clause (bi) above and of this Section 6(e), neither TPEG nor the GJP Parties shall enter into any compromise or agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a subsequent year without the written consent of the other party, which consent may demand payment upon any bond or title indemnity furnished as aforesaidnot be unreasonably withheld.
Appears in 1 contract
Samples: Merger Agreement (Producers Entertainment Group LTD)
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor Except as provided in Section 5.3(e), if a Tax Authority assesses, asserts, proposes, recommends or attempts to collect on an NRG Proposed Adjustment, or submits a request for information that reasonably may relate to an NRG Proposed Adjustment or potential NRG Proposed Adjustment, Xcel shall forthwith give provide NRG with prompt notice thereof and NRG shall elect in writing, within ten business days of receipt of notice from Xcel, to contest the NRG Proposed Adjustment or potential NRG Proposed Adjustment in the manner provided in Section 5.3(b) or to agree not to contest the NRG Proposed Adjustment and pay Xcel any Contested Lien amount required to Mortgagee at the time the same shall be asserted;paid under Section 5.1.
(b) Mortgagor If NRG elects to contest the NRG Proposed Adjustment, NRG shall either pay under protest or deposit with Mortgagee keep Xcel reasonably informed of the full amount contest and NRG’s resolution of the contest shall be binding on Xcel (herein called “Lien Amount”) of such Contested Liensubject to Section 5.3(h)), together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; Xcel Affiliated Companies, NRG and the NRG Affiliated Companies, provided that NRG pays Xcel any amount required to be paid under Section 5.1. Without limiting the generality of the foregoing, if NRG elects to contest an NRG Proposed Adjustment,
(i) NRG shall assume responsibility for contesting the NRG Proposed Adjustment and settling or litigating it to a Final Determination, all at NRG’s sole cost and expense;
(ii) Xcel shall take all steps reasonably necessary to authorize NRG to contest the NRG Proposed Adjustment, including executing powers of attorney and promptly delivering to NRG any written materials received by Xcel from any source other than NRG relating to the NRG Proposed Adjustment;
(iii) NRG shall provide Xcel with copies of all material documents received from or submitted to the Tax Authority in lieu connection with the contest, including copies of such any Final Determination, Form 870 or other documentation relating to resolution of the contest;
(iv) if NRG decides to pay the NRG Proposed Adjustment and sxx for a refund, NRG shall advance to Xcel, on an interest-free basis and without duplication, the amount of Tax required to be paid by Xcel in connection with the NRG Proposed Adjustment;
(v) if NRG and the Tax Authority enter into an agreement that does not result in a Final Determination, including an agreement on Form 870, NRG shall advance to Xcel, on an interest-free basis and without duplication, the amount of Tax required to be paid by Xcel in connection with the NRG Proposed Adjustment; and
(vi) if a Final Determination requires that Xcel make a payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such the Tax Authority with respect to the NRG Proposed Adjustment, NRG, without duplication, shall pay to Xcel the amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;required under Section 5.1.
(c) Mortgagor Payments with respect to amounts contested under Section 5.3(b) shall diligently prosecute be made as follows: Xcel and NRG shall agree on the contest of any Contested Lien by appropriate legal proceedings having date on which payment will be made to the effect of staying Tax Authority (the foreclosure or forfeiture of “Payment Date”), NRG shall remit the Premisespayment amount to Xcel no later than two business days before the Payment Date, and Xcel shall permit Mortgagee make payment to the Tax Authority no later than the Payment Date. If the relevant Tax Law or Tax Authority establishes a date by which payment to the Tax Authority must be represented in made, that date shall be the Payment Date. If Xcel receives a refund of an amount paid pursuant to Section 5.3(b), Xcel shall remit the refund amount to NRG, together with any such contest and shall pay all expenses incurredinterest received thereon, in so doing, including fees and expenses within two business days of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); andreceipt thereof.
(d) Mortgagor shall pay such Contested Lien Except as provided in Section 5.3(e), and all Lien Amounts together without regard to whether Xcel obtains a Final Determination with interest and penalties thereon respect to the NRG Proposed Adjustment in issue, if NRG (i) if elects not to contest an NRG Proposed Adjustment, (ii) elects to contest an NRG Proposed Adjustment and fails to the extent that any such Contested Lien shall be determined adverse to Mortgagorobtain a Final Determination, or (iiiii) forthwith upon demand by Mortgagee iffails to give Xcel the NRG election notice required under Section 5.3(a), in the opinion of Mortgagee, and notwithstanding any such contest, the Premises NRG shall be deemed to have agreed to the NRG Proposed Adjustment and shall pay Xcel any amount required to be paid under Section 5.1 on or before the later to occur of (x) the date Xcel makes payment to the Tax Authority and (y) ten business days after NRG receives notice from Xcel of the amount required to be paid, along with a computation in jeopardy or sufficient detail to inform NRG of the basis for its payment obligation and of the manner in danger of being forfeited or foreclosed; which its obligation was computed.
(e) Nothing in this Section 5.3 shall prevent NRG from contending that an asserted NRG Proposed Adjustment is not a matter for which NRG is liable under Section 5.1, provided that if Mortgagor NRG gives Xcel written notice to that effect no later than fifteen business days after receipt of the Xcel notice described in Section 5.3(a). Any dispute arising under this Section 5.3(e) shall fail so be resolved in accordance with the procedures set forth in Section 7.10. If a dispute is resolved in Xcel’s favor, NRG shall pay Xcel any amount that NRG owes under Section 5.1 at the time of the resolution within ten business days of the date of resolution and any other amount owed under Section 5.1 in accordance with the other provisions of this Section 5. NRG may not contest an asserted NRG Proposed Adjustment and also contend that it is not a matter for which NRG is liable under Section 5.
(f) If a contest or other resolution of a Tax Item of NRG results in Xcel’s receipt of a refund or realization of a Tax Benefit other than a refund, Xcel shall pay the refund or the amount of the other Tax Benefit to doNRG within two business days of receipt or realization thereof, Mortgagee maytogether with any interest allowed thereon.
(g) Sections 5.3(b), (c), (d) and (f), but not Sections 5.3(a) or (e), shall not be required toapply to the NRG Proposed Adjustments proposed or asserted by a Tax Authority before the date of this Agreement, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary which adjustments are described on Schedule 5.3 to this Agreement, together with their agreed disposition.
(h) Nothing in this Section 5.3 shall waive Xcel’s rights under the judgment Settlement Agreement if NRG is in breach of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (bSection 6(e) above and may demand payment upon any bond or title indemnity furnished as aforesaid7(c) thereof.
Appears in 1 contract
Contests. Notwithstanding anything If any claim shall be made against any Tax Indemnitee or if any proceeding shall be commenced against any Tax Indemnitee (including a written notice of such proceeding) for any Taxes as to which the Lessee may have an indemnity obligation pursuant to Section 7.4, or if any Tax Indemnitee shall determine that any Taxes as to which the Lessee may have an indemnity obligation pursuant to Section 7.4 may be payable, such Tax Indemnitee shall promptly notify the Lessee (provided, that failure to so notify the Lessee shall not alter such Tax Indemnitee’s rights under this Section 7.4 except to the contrary herein containedextent such failure precludes the ability to conduct a contest of any indemnified Taxes). The Lessee shall be entitled, Mortgagor at its expense, to participate in, and, to the extent that the Lessee desires to, assume and control the defense thereof; provided, however, that (i) the Lessee shall have acknowledged in writing its obligation to fully indemnify such Tax Indemnitee (to the right extent that such contest relates to Taxes subject to indemnification by Lessee under this Section 7.4) in respect of such action, suit or proceeding if the contest is unsuccessful, provided, that such acknowledgement will not be binding if the contest is resolved by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become decision of a lien thereon and any mechanics’, materialmen’s court of competent jurisdiction or other liens or claims Governmental Authority which states with reasonable clarity the reasons for lien upon sustaining the Premises (all herein called “Contested Liens”)Tax subject to indemnification, and such reasons would not result in an obligation of the Lessee to indemnify the Tax Indemnitee hereunder; and (ii) if such contest shall involve the payment of the Tax prior to the contest, the Lessee shall provide to such Tax Indemnitee an interest-free advance in an amount equal to the Tax that the Tax Indemnitee is required to pay (with no Contested Liens additional net after-tax costs to such Tax Indemnitee); and, provided further, that the Lessee shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice not be entitled to assume and control the defense of any Contested Lien to Mortgagee such action, suit or proceeding (but the Tax Indemnitee shall then contest, at the time sole cost and expense of the same shall be asserted;
(bLessee) Mortgagor shall either pay under protest or deposit with Mortgagee to the full amount (herein called “Lien Amount”) of extent such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish costs relate to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having Taxes as to which the effect of staying the foreclosure or forfeiture Lessee may have an indemnity obligation pursuant to Section 7.4, on behalf of the Premises, and shall permit Mortgagee Lessee with representatives reasonably satisfactory to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (iLessee) if and to the extent that that, (A) in the reasonable opinion of such Tax Indemnitee, such action, suit or proceeding (x) involves any meaningful risk of imposition of criminal liability on such Contested Tax Indemnitee or (y) will involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on the Leased Property or any part thereof unless the Lessee shall have posted a bond or other security reasonably satisfactory to the relevant Tax Indemnitees in respect to such risk, (B) such proceeding involves Claims not fully indemnified by the Lessee which the Lessee and the Tax Indemnitee have been unable to sever from the indemnified claim(s), (C) an Event of Default has occurred and is continuing, (D) such action, suit or proceeding involves matters which extend beyond or are unrelated to the Transaction and if determined adversely could be materially detrimental to the interests of such Tax Indemnitee notwithstanding indemnification by the Lessee or (E) such action, suit or proceeding involves the federal or any state income tax liability of the Tax Indemnitee not indemnified by the Lessee. With respect to any contests controlled by a Tax Indemnitee, (i) if such contest relates to the federal or any state income tax liability of such Tax Indemnitee, such Tax Indemnitee shall be determined adverse required to Mortgagor, conduct such contest only if the Lessee shall have provided to such Tax Indemnitee an opinion of independent tax counsel selected by the Lessee and reasonably satisfactory to the Tax Indemnitee stating that a reasonable basis exists to contest such claim or (ii) forthwith upon demand by Mortgagee if, in the case of an appeal of an adverse determination of any contest relating to any Taxes, an opinion of Mortgageesuch counsel to the effect that such appeal is more likely than not to be successful, provided, however, such Tax Indemnitee shall in no event be required to appeal an adverse determination to the United States Supreme Court. The Tax Indemnitee may participate in a reasonable manner at its own expense and notwithstanding with its own counsel in any proceeding conducted by the Lessee in accordance with the foregoing. Each Tax Indemnitee shall, at the Lessee’s expense, supply the Lessee with such contestinformation and documents in such Tax Indemnitee’s possession as are reasonably requested by the Lessee and are necessary or advisable for the Lessee to participate in any action, suit or proceeding to the Premises extent permitted by this Section 7.4. Unless an Event of Default shall have occurred and be in jeopardy continuing, no Tax Indemnitee shall enter into any settlement or in danger other compromise with respect to any Claim which is entitled to be indemnified under this Section 7.4 without the prior written consent of being forfeited or foreclosed; provided that if Mortgagor shall fail so to dothe Lessee, Mortgagee may, but which consent shall not be unreasonably withheld, unless such Tax Indemnitee waives its right to be indemnified under this Section 7.4 with respect to such Claim. Notwithstanding anything contained herein to the contrary, (i) a Tax Indemnitee will not be required to, pay all to contest (and Lessee shall not be permitted to contest except on its own behalf) a Claim with respect to the imposition of any Tax if such Contested Liens Tax Indemnitee shall waive its right to indemnification under this Section 7.4 with respect to such Claim (and Lien Amounts and interest and penalties thereon and such any related Claim with respect to other sums taxable years the contest of which is precluded as may be necessary in the judgment of the Mortgagee to obtain the release and discharge a result of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (bwaiver) above and may demand payment upon any bond or title indemnity furnished as aforesaid.and
Appears in 1 contract
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor Tenant shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed conducted in good faith, in the name of the Tenant, or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises Landlord (all herein called “Contested Liens”if legally required), and no Contested Liens shall constitute an Event or both (if legally required), without cost, expense, liability, or damage to Landlord, the validity or application of Default hereunderany Legal Requirement and, ifif compliance with any of the terms of any such Legal Requirement may legally be delayed pending the prosecution of any such proceeding, but only if:
Tenant may delay such compliance therewith until the final determination of such proceeding, provided in each case that: (a) Mortgagor Landlord shall forthwith give notice not be subject to civil or criminal penalty or to prosecution for a crime, nor shall the Land, the Building, or any equipment and improvements therein or any part thereof be subject to being condemned or vacated, or subject to any lien or encumbrance, by reason of any Contested Lien to Mortgagee at the time the same shall be asserted;
non-compliance or otherwise by reason of such contest; (b) Mortgagor before the commencement of such contest, Tenant shall either pay under protest or deposit with Mortgagee furnish to Landlord the full bond of a surety company satisfactory to Landlord, in form and substance satisfactory to Landlord and in an amount equal to one hundred percent (herein called “Lien Amount”100%) of the cost of such Contested Lien, together compliance (as estimated by Landlord) and shall indemnify Landlord against the cost of such compliance and liability resulting from or incurred in connection with such amount as Mortgagee may reasonably estimate as interest contest or penalties which might arise during the period of contestnon-compliance; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor such non-compliance or contest shall diligently prosecute the contest of not constitute or result in any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture violation of the PremisesMortgage, the Land Lease, any Future Mortgage, or any Future Land Lease, or if the Mortgagee, the Land Lessor, any Future Land Lessor, or any Future Mortgagee shall condition such non-compliance or contest upon the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest furnished at the Default Rate until paid, expense of Tenant; and payable upon demand); and
(d) Mortgagor Tenant shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) keep Landlord and, if and required or requested, the Land Lessor, the Mortgagee, any Future Mortgagee, or any Future Land Lessor regularly advised as to the extent that any status of such Contested Lien proceedings in good faith. Landlord shall be determined adverse deemed subject to Mortgagorprosecution for a crime if Landlord, or (ii) forthwith upon demand by Mortgagee ifthe Land Lessor, in the opinion of Mortgagee, and notwithstanding any Future Land Lessor or any Future Mortgagee or any of their officers, directors, partners, shareholders, agents or employees, is charged with a crime of any kind whatever unless such contest, charge is withdrawn five (5) days before such party is required to plead or answer thereto. This Section 10.02 shall survive the Premises shall be in jeopardy expiration or in danger earlier termination of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidthis Lease.
Appears in 1 contract
Samples: Office Lease (Allaire Corp)
Contests. Notwithstanding anything to the contrary herein contained(a) Tenant, Mortgagor shall have the right to contest at Tenant’s expense, may contest, by appropriate legal proceedings diligently prosecuted conducted in good faith and with due diligence, the validity or application, in whole or in part, of any Taxes imposed or assessed upon Law, provided that (i) neither the Premises nor any Rent therefrom nor any part thereof or interest therein would be in any danger of being sold, forfeited, attached or lost, (ii) neither Landlord nor any Mortgagee would be in any danger of civil or criminal liability for failure to comply therewith pending the outcome of such proceedings, and (iii) Tenant shall deposit with Landlord (or with a Mortgagee or Underlying Lessor designated by Landlord), as security for the performance by Tenant of its obligations hereunder with respect to such Law, such reasonable security as may be demanded by the Landlord to insure such performance and the payment of all penalties, interest, costs, liabilities and expenses which may accrue during the period of the contest as a result of such contest. If such contest shall be or become a lien thereon finally resolved against Tenant, then Tenant shall (x) comply with the applicable Law and (y) immediately pay any mechanics’and all costs, materialmen’s fees (including counsel fees), interest, penalties or other liens liabilities in connection with any previous non-compliance with such Law (or claims for lien upon the Premises (all herein called “Contested Liens”otherwise resulting from such contest), and no Contested Liens whereupon the Landlord shall constitute an Event arrange to have returned to Tenant, with any interest earned thereon, all amounts, if any, held by or on behalf of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at Landlord that were deposited by Tenant in accordance with the time the same shall be asserted;provisions hereof.
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided Landlord agrees that whenever Landlord’s cooperation is required in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premisesproceedings brought by Tenant as aforesaid, Landlord will reasonably cooperate therein, provided same shall not entail any cost, liability or expense to Landlord and shall permit Mortgagee to be represented Tenant will pay, indemnify and save Landlord harmless of and from, any and all liabilities, losses, judgments, decrees, costs and expenses (including all reasonable attorneys’ fees and expenses) in connection with any such contest and will, promptly after the final settlement, fully pay and discharge the amounts which shall pay be levied, assessed, charged or imposed or be determined to be payable therein or in connection therewith, and Tenant shall perform and observe all expenses incurredacts and obligations, in so doing, including fees and expenses of Mortgagee’s counsel (all the performance of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, ordered or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums decreed as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaida result thereof.
Appears in 1 contract
Contests. Notwithstanding anything (a) In the case of an audit or administrative or judicial proceeding that relates to periods ending on or before the contrary herein containedClosing Date or for which Purchaser may seek indemnity from Sellers, Mortgagor the Sellers shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed participate in and control the conduct of such audit or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, proceeding but only if:
(a) Mortgagor to the extent that such audit or proceeding relates solely to a potential adjustment for which any Seller has acknowledged liability and the issue underlying the potential adjustment does not recur for any period ending subsequent to the Closing Date. Sellers shall forthwith give notice keep Purchaser fully informed of the progress of any Contested Lien such audit or proceeding and, if it appears in the sole discretion of the Purchaser, that such audit or proceeding may reasonably be expected to Mortgagee at adversely affect the time Purchaser or KC Machine, the Purchaser also may participate in any such audit or proceeding. If the Sellers do not assume the defense of any such audit or proceeding promptly, the Purchaser may defend and settle the same (for the Sellers’ account and at Sellers’ expense) in such manner as it may deem appropriate. In the event that a potential adjustment as to which the Sellers would be liable is present in the same proceeding as a potential adjustment for which the Purchaser would be liable, the Purchaser shall be asserted;have the right, at its expense, to control the audit or proceeding with respect to the latter potential adjustment.
(b) Mortgagor With respect to a potential adjustment for which any Seller and the Purchaser or KC Machine could be liable, or which involves an issue that recurs for any period ending after the Closing Date (whether or not the subject of audit at such time),
(i) both the Purchaser and the Sellers may participate in the audit or proceeding, each at its own expense, and
(ii) the audit or proceeding shall either pay under protest or deposit with Mortgagee be controlled by that party which would bear the full burden of the greater portion of the dollar amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee the adjustment and any corresponding adjustments that may reasonably estimate as interest or penalties be anticipated for future Tax periods. The principle set forth in the preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (in particular, choice of judicial forum) in circumstances in which might arise during separate issues are otherwise controlled hereunder by the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount Purchaser and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;the Sellers.
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited Except as provided in subsection clause (ba) above and above, neither the Purchaser nor the Sellers shall enter into any compromise or agree to settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party, or result in a material benefit to that party, for such year or a subsequent year without the written consent of the other party, which consent may demand payment upon any bond not be unreasonably withheld or title indemnity furnished as aforesaiddelayed.
Appears in 1 contract
Samples: Company Purchase Agreement (T-3 Energy Services Inc)
Contests. If a written claim for payment is made by any taxing authority against an Indemnitee for any Imposition with respect to which Lessee or Guarantor may be liable for indemnity pursuant to this Section 7.4, such Indemnitee shall give Lessee and Guarantor written notice of such claim promptly after its receipt, and shall furnish Lessee and Guarantor with copies of such claim and all other writings received from the taxing authority to the extent relating to such claim. The Indemnitee shall not pay such claim until at least thirty (30) days after providing Lessee and Guarantor with such written notice, unless required to do so by law or regulation. Subject to the conditions set forth in the following paragraph, Lessee and Guarantor shall be entitled to contest (acting through counsel selected by Lessee and Guarantor and reasonably acceptable to the Indemnitee), and control the contest of, any such claim with respect to an Imposition (a “Tax Claim”) if (i) the contest of the Tax Claim may be pursued in the name of Lessee or Guarantor; (ii) the contest of the Tax Claim must be pursued in the name of the Indemnitee but can be pursued independently from any other proceeding involving a tax liability of such Indemnitee for which Lessee and Guarantor are not responsible or (iii) the Indemnitee requests that Lessee and Guarantor control such contest. In the case of all other Tax Claims, subject to the conditions set forth in the following paragraph, the Indemnitee shall contest the Tax Claim if Lessee and Guarantor shall request that the Imposition be contested, and the following rules shall apply with respect to such contest:
(1) the Indemnitee shall control the contest of such Tax Claim in good faith taking into account any and all tax consequences to the Indemnitee, including, without limitation, those associated with a recharacterization of the transaction contemplated by the Operative Documents by any taxing authority (acting through counsel selected by the Indemnitee and reasonably acceptable to Lessee and Guarantor),
(2) the Indemnitee shall not otherwise settle, compromise or abandon such contest without Lessee’s and Guarantor’s prior written consent except as provided in the concluding paragraph to this Section 7.4(b). In either case, the party conducting such contest shall consult with and keep reasonably informed the other party and its designated counsel with respect to such Tax Claim, shall provide the other party with copies of any reports or claims issued by the relevant auditing agents or taxing authority as well as related portions of tax returns, and shall consider and consult in good faith with the other party regarding any request, including but not limited to requests (a) to resist payment of Impositions if practical and (b) not to pay such Impositions except under protest if protest is necessary and proper (but the decisions regarding what actions are to be taken shall be made by the controlling party in its sole judgment). Notwithstanding the foregoing, no contest with respect to a Tax Claim shall be required or permitted and Lessee and Guarantor shall be required to pay the applicable Impositions without contest, unless:
(1) within thirty (30) days after notice by the Indemnitee to Lessee and Guarantor of such Tax Claim, Lessee and Guarantor shall request in writing to the Indemnitee that such Tax Claim be contested; provided that if a shorter period is required for taking action with respect to such Tax Claim and the Indemnitee notifies Lessee and Guarantor of such requirement, Lessee and Guarantor shall use reasonable efforts to request such contest within such shorter period,
(2) no Event of Default has occurred and is continuing,
(3) there is no risk of sale, forfeiture or loss of, or, except in the case of a Tax Claim involving only disputed state or local property or ad valorem taxes, the creation of a Lien on Lessee’s interest in, the Leased Property as a result of such Tax Claim (other than a Permitted Lien); provided that this clause (3) shall not apply if the Lessee and Guarantor post security satisfactory to the Indemnitee in its sole discretion, or the Imposition is fully paid in either manner specified in clause (5) below,
(4) there is no risk of imposition of any criminal penalties,
(5) if such contest involves payment of such Imposition, Lessee and Guarantor shall either advance to the Indemnitee on an interest-free basis, and with no after-tax cost to such Indemnitee, the amount of the Imposition (a “Tax Advance”) or pay such Indemnitee the amount payable by Lessee and Guarantor pursuant to this Section 7.4 with respect to such Imposition,
(6) Lessee and Guarantor agree to pay (and pay on demand) and with no after-tax cost to such Indemnitee, all reasonable costs, losses and expenses incurred by the Indemnitee in connection with the contest of such claim (including all reasonable legal, accounting and investigatory fees and disbursements),
(7) except in the case of a Tax Claim involving only disputed state or local property or ad valorem taxes, (A) the Indemnitee has been provided at Lessee’s and Guarantor’s sole expense with an opinion, reasonably acceptable to such Indemnitee, of independent tax counsel of recognized standing selected by Lessee and Guarantor and reasonably acceptable to the Indemnitee to the effect that there is a reasonable basis for contesting such Tax Claim; and (B) the amount of the disputed federal Taxes in controversy, taking into account the amount of all similar and logically related Impositions with respect to the transactions contemplated by the Operative Documents that could be raised in any other year (including any future year) not barred by the statute of limitations, exceeds $50,000;
(8) Lessee and Guarantor shall acknowledge in writing their liability to indemnify the Indemnitee hereunder, on and subject to the terms and conditions hereof, in respect of such claim if the contest is not successful, and
(9) in the case of a judicial appeal, no appeal to the U.S. Supreme Court shall be required of the Indemnitee or shall be permitted by Lessee and Guarantor. Notwithstanding anything to the contrary herein containedcontained in this Section 7.4, Mortgagor shall have the right Indemnitee at any time may elect to decline to take any action or any further action with respect to a Tax Claim and may in its sole discretion settle or compromise any contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon with respect to such Tax Claim without Lessee’s and Guarantor’s consent if the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only ifIndemnitee:
(a1) Mortgagor shall forthwith give notice of waives its right to any Contested Lien indemnity payment by Lessee and Guarantor pursuant to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) this Section 7.4 in respect of such Contested LienTax Claim (and any other claim for Impositions with respect to any other taxable year and/or with respect to any other claim, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien which is effectively precluded by appropriate legal proceedings having the effect of staying Indemnitee’s declination to take action with respect to the foreclosure or forfeiture of the PremisesTax Claim), and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d2) Mortgagor shall pay promptly repays to Lessee and Guarantor any Tax Advance and any amount paid to such Contested Lien and all Lien Amounts together Indemnitee under this Section 7.4 in respect of such Taxes, but not any costs or expenses with interest and penalties thereon (i) if and respect to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited . Except as provided in subsection (b) above and may demand payment upon the preceding sentence, any bond or title indemnity furnished as aforesaidsuch waiver shall be without prejudice to the rights of the Indemnitee with respect to any other Tax Claim.
Appears in 1 contract
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) a. Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) b. Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor Mortgagor, may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) c. Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including reasonable fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and;
(d) d. Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined materially adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished famished as aforesaid.
Appears in 1 contract
Contests. Notwithstanding anything to the contrary herein containedcontained in any of the Loan Documents, Mortgagor Borrower shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises Property or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises Property (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor a. Borrower shall forthwith give notice of any Contested Lien to Mortgagee Lender at the time the contest of the same shall be asserted;
(b) Mortgagor b. Borrower shall either pay under protest or deposit with Mortgagee Lender the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee Lender may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor Borrower may furnish to Mortgagee Lender a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to MortgageeLender in the exercise of its reasonable discretion;
(c) Mortgagor c. Borrower shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the PremisesProperty, and shall permit Mortgagee Lender to be represented in any such contest and shall pay all expenses actually incurred, in so doing, including the reasonable fees and expenses of MortgageeXxxxxx’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and;
(d) Mortgagor d. Borrower shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to MortgagorBorrower, or (ii) forthwith upon demand by Mortgagee Xxxxxx if, in the reasonable opinion of MortgageeXxxxxx, and notwithstanding any such contest, the Premises Property shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor Borrower shall fail so to do, Mortgagee Lender may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee Lender to obtain the release and discharge of such liens; and any amount actually expended by Mortgagee Xxxxxx in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee Lender may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 1 contract
Contests. Notwithstanding anything to the contrary herein contained, the Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called each, a “Contested Liens”), and no Contested Liens Lien shall constitute an Event of Default hereunder, if, but only if:
(a) The Mortgagor shall forthwith give notice of any Contested Lien to the Mortgagee at the time the same shall be asserted;
(b) The Mortgagor shall either pay under protest or deposit with the Mortgagee the full amount (herein called the “Lien Amount”) of such Contested Lien, together with such amount as the Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment the Mortgagor may furnish to the Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to the Mortgagee;
(c) The Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit the Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of the Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and;
(d) The Mortgagor shall pay each such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to the Mortgagor, or (ii) forthwith upon demand by the Mortgagee if, in the reasonable opinion of the Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if the Mortgagor shall fail so to do, the Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by the Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that the Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 1 contract
Contests. Notwithstanding anything (i) Seller on the one hand, and Buyer on the other, shall notify the other in writing within 30 days or such shorter period as may be required thereby of receipt of written notice of any pending or threatened Tax examination, audit or other administrative or judicial proceeding (a “Tax Contest”) that could reasonably be expected to result in a liability for Taxes of another party. If the recipient of such notice of a Tax Contest fails to provide such notice to such other party, and the recipient is entitled to indemnification for Taxes under this Agreement, it shall be entitled to indemnification for any Taxes arising in connection with such Tax Contest, but only to the contrary herein containedextent, Mortgagor if any, that such failure or delay shall not have adversely affected the indemnifying party’s ability to defend against, settle, or satisfy any action, suit or proceeding against it, or any damage, loss, claim, or demand for which the indemnified party is entitled to indemnification hereunder.
(ii) If a Tax Contest relates to any Taxes for which Seller is liable in full hereunder, Seller shall at its expense control the defense and settlement of such Tax Contest. If such Tax Contest relates to any Taxes for which Buyer is liable in full hereunder, Buyer shall at its own expense, control the defense and settlement of such Tax Contest. A party not in control of the defense shall have the right to contest by appropriate legal proceedings diligently prosecuted observe the conduct of any Tax Contest at its expense, including through its own counsel and other professional experts. If a Tax Contest relates to Taxes imposed or assessed upon the Premises or for which Seller and Buyer may be liable hereunder, the parties that may have such liability shall jointly control the defense and settlement of such Tax Contest.
(iii) To the extent that an issue raised in any Tax Contest controlled by one party or become a lien thereon and any mechanics’jointly controlled could materially affect the liability for Taxes of another party, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”)controlling party shall not, and no Contested Liens shall constitute an Event party in the case of Default hereunderjoint control shall, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at enter into a final settlement without the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture written consent of the Premisesother party or parties, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but consent shall not be required tounreasonably withheld. Where a party withholds its consent to any final settlement, pay all such Contested Liens that party may continue or initiate further proceedings, at its own expense, and Lien Amounts the liability of the party or parties that wished to settle (as between the consenting and interest the non consenting parties) shall not exceed the liability that would have resulted from the proposed final settlement including interest, additions to Tax, and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest that have accrued at the Default Rate until paidthat time, and payable upon demand; and provided further that Mortgagee may in the non consenting party or parties shall indemnify the consenting party or parties for such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidTaxes.
Appears in 1 contract
Contests. Notwithstanding anything to a) The Company may organise, conduct, roll out, collaborate for various contests, competitions, matches, events on the contrary herein containedApp at its sole discretion and on such terms and conditions as it may deem fit (“Contests”) for the participation, Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted access of Users and/or any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises third parties (all herein called “Contested LiensParticipants”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:.
(ab) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same The Company shall be asserted;entitled to revise, modify the terms and conditions in relation to such Contests at any time without giving any notice or intimation to any person and/or the Participants.
(bc) Mortgagor shall either pay under protest or deposit with Mortgagee All Participants hereby expressly agree to abide by and follow the full amount (herein called “Lien Amount”) terms and conditions of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, every Contest and/or applicable laws as may be satisfactory applicable from time to Mortgagee;time.
d) All Participants hereby expressly agree and understand intellectual property rights in any User Provided Content, contents, works uploaded/posted in relation to the Contests or otherwise on the App shall be original in nature, fresh/ novel works and shall not infringe on any rights (cincluding intellectual property rights) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having persons/ parties whatsoever. The Participants indemnify the effect of staying the foreclosure or forfeiture Company in full in respect of the Premises, claims/ damages/ losses suffered by the Company.
e) All Participants hereby expressly agree and shall permit Mortgagee to be represented understand intellectual property rights in any such contest User Provided Content, contents, works uploaded/posted in relation to the Contests or otherwise on the App shall solely belong to the Company.
f) All content, works posted/ uploaded on the App in respect of the Contests is either owned by the Company or irrevocably assigned to the Company in perpetuity.
g) The Company shall be entitled to use, utilise, edit, exploit, replicate, disclose, broadcast, share or in any manner deal with or dispose of any and all content, works posted/ uploaded on the App in respect of the Contests in perpetuity and the Participants shall pay all expenses incurrednot claim any rights, title, interest and/or entitlements in respect of the same.
h) Nothing contained on the App in relation to the Contest should be construed as granting any licence or right to any User/ Participant, to use any intellectual property belonging either to the Company and/or third party service provider associated with App, in so doing, including fees any manner whatsoever and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but Participants shall not be required entitled to use, utilise, edit, exploit, replicate, disclose, broadcast, share or in any manner deal with or dispose of any and all content, works posted/ uploaded on the App in respect of the Contests in perpetuity.
i) The Terms of Use of the App shall be applicable to all Participants, persons having access to the App in respect of the Contests mutatis mutandis.
j) In no case shall the Company be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from the Participants use of any of the App, or for any other claim related in any way to the Participants’ use of the App or Services, including, but not limited to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums any errors or omissions in any content, or any loss or damage of any kind incurred as may be necessary in a result of any Content or any content (or product) posted, transmitted, or otherwise made available via the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidApp.”
Appears in 1 contract
Samples: Terms of Use
Contests. Notwithstanding anything If an audit is commenced, an Adjustment is proposed or any other claim is made by any tax authority with respect to a Tax liability of the contrary herein containedCompany or any of its Subsidiaries which is allocated to GTE or Seller under Section 5.3(b), Mortgagor shall have or if an Adjustment is proposed that could give Seller the right to receive a payment pursuant to Section 5.3(e), Buyer shall promptly notify Seller of such audit or such proposed Adjustment or such claim (unless GTE or Seller previously was notified directly by the relevant tax authority). If Seller so requests and at Seller's expense, Buyer shall cause the relevant entity (Buyer, the Company, any of its Subsidiaries or any successor) to contest such claim on audit or by appropriate legal proceedings diligently prosecuted any claim for refund or credit of Taxes imposed or assessed upon the Premises in a related administrative or judicial proceeding which may be or become a lien thereon Seller in its sole and any mechanics’absolute discretion, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien chooses to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of direct such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish entity to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premisespursue, and shall permit Mortgagee Seller, at its expense, to control the prosecution and settlement of any such audit or refund claim or related administrative or judicial proceeding with respect to those matters which could affect the Tax liability of GTE or Seller, including any liability hereunder, or their right to payment; and, where deemed necessary by Seller, Buyer shall cause the relevant entity to authorize by appropriate powers of attorney such persons as Seller shall designate to represent such entity with respect to such audit or refund claim or related administrative or judicial proceeding and to settle or otherwise resolve any such proceeding. Buyer shall further execute and deliver, or cause to be represented executed and delivered, to Seller or its designee all instruments and documents reasonably requested by Seller to implement the provisions of this Section 5.3(e). Any refund of Taxes obtained by Buyer or the affected entity shall be paid promptly to Seller. In the event an adverse determination may result in each party having responsibility for any Taxes, each party shall be entitled to fully participate in that portion of the proceedings relating to the Taxes with respect to which it may incur liability hereunder; provided, however, that the party responsible for the greater amount of the Tax liability at issue shall ultimately control the proceeding, exercising such contest control in a reasonable fashion. If an indemnified party has knowledge of an asserted Tax liability with respect to a matter for which it is to be indemnified hereunder and shall pay all expenses incurredsuch party fails to provide the indemnifying party prompt notice of such asserted Tax liability, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon then (i) if the indemnifying party is precluded from contesting the asserted Tax liability in any forum as a result of the failure to give prompt notice, the indemnifying party shall have no obligation to indemnify the indemnified party for Taxes arising out of such asserted Tax liability and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee ifif the indemnifying party is not precluded from contesting the asserted Tax liability in any forum, but such failure to provide prompt notice results in a monetary detriment to the opinion of Mortgageeindemnifying party, and notwithstanding then any such contest, amount which the Premises indemnifying party is otherwise required to pay the indemnified party pursuant to this Agreement shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in reduced by the judgment of the Mortgagee to obtain the release and discharge amount of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaiddetriment.
Appears in 1 contract
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor Trustor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or similar claims for lien upon the Premises or proceeds of the Loan (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor Trustor shall forthwith give notice of any Contested Lien to Mortgagee Beneficiary at the time the same shall be asserted;
(b) Mortgagor Trustor shall either pay under protest or deposit with Mortgagee Beneficiary the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee Beneficiary may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor Trustor may furnish to Mortgagee Beneficiary a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to MortgageeBeneficiary;
(c) Mortgagor Trustor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee Beneficiary to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of MortgageeBeneficiary’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor Trustor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to MortgagorTrustor, or (ii) forthwith upon demand by Mortgagee Beneficiary if, in the opinion of MortgageeBeneficiary, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor Trustor shall fail so to do, Mortgagee Beneficiary may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee Beneficiary to obtain the release and discharge of such liens; and any amount expended by Mortgagee Beneficiary in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee Beneficiary may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.
Appears in 1 contract
Samples: Leasehold and Fee Deed of Trust (Grubb & Ellis Healthcare REIT, Inc.)
Contests. Notwithstanding anything to A. Upon prior written notification and written consent of the contrary herein containedLandlord, Mortgagor Tenant shall have the right to contest the amount or validity, in whole or in part, of any Imposition imposed by governmental authority by appropriate legal proceedings diligently prosecuted conducted in good faith and according to applicable laws or regulations, but only after payment of such Imposition unless such payment would operate as a bar to such contest or interfere materially with the prosecution thereof, in which event Tenant may postpone or defer payment of such Imposition or portion thereof in accordance with applicable laws and if:
(i) neither the Premises nor any Taxes imposed part thereof would by reason of such postponement or deferment be in danger of being forfeited or lost, and
(ii) Tenant shall have deposited with Landlord or the holder of any mortgage the amount so contested and unpaid, together with all interest and penalties in connection therewith and all charges that may or might be assessed upon against or become a charge on the Premises or any part thereof in such proceedings. Upon the termination of any such proceedings, Tenant shall pay the amount of such Imposition or part thereof as finally determined in such proceedings, the payment of which may be or become a lien thereon and have been deferred during the prosecution of such proceedings, together with any mechanics’costs, materialmen’s fees, interest, penalties or other liens or claims for lien upon the Premises (all herein called “Contested Liens”)liabilities in connection therewith, and no Contested Liens upon such payment, Landlord shall, provided an Event of Default as defined in this Lease shall not have occurred, return, without interest, any amount deposited with it with respect to such Imposition as aforesaid. Provided an Event of Default shall not have occurred, such payment, at Tenant's request, shall be made by Landlord, out of the amount deposited with it with respect to such Imposition as aforesaid, to the extent that such amount is sufficient therefor, and the balance due, if any, shall be paid by Tenant. If, at any time during the continuance of such proceedings, Landlord shall deem the amount deposited as aforesaid to be insufficient, Tenant shall, upon demand, make an additional deposit, as aforesaid, of such additional sum as Landlord reasonably may request, and failure of Tenant to do so shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at and the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as theretofore deposited may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien applied by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and Landlord to the extent that any such Contested Lien shall be determined adverse to Mortgagorpayment, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release removal and discharge of such liens; Imposition, and the interest and penalties in connection therewith and any amount expended by Mortgagee costs, fees or other liability accruing in so doing any such proceedings, and the balance, if any, shall be so much additional Indebtedness bearing interest returned to Tenant.
B. Landlord shall similarly have an absolute right at Landlord's expense to seek a reduction in the Default Rate until paidvaluation of the Premises assessed for tax purposes if Tenant has elected not to contest the amount or validity of the Imposition or the Landlord may elect to jointly participate with Tenant in any proceedings commenced by Tenant. Landlord shall have the right to prosecute any action or proceeding commenced by Tenant for a reduction in such assessed valuation or valuations which shall in whole or in part relate and pertain to any period of time subsequent to the expiration or termination of this Lease. To the extent to which any refund payable as a result of any proceeding which Landlord or Tenant may institute, or payable by reason of compromise or settlement of any proceeding, may be based upon a payment made by (a) persons including the Landlord, the Landlord shall collect the same and reimburse itself forthwith for any expense incurred by Landlord in connection herewith including reasonable attorneys' fees and disbursements, and payable upon demandthe balance of any refund shall be prorated among the persons causing such payment to be made; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.or
Appears in 1 contract
Samples: Lease Agreement (Revenge Marine Inc)
Contests. Notwithstanding anything Whenever any Taxing Authority sends a notice of any audit, initiates an examination of the Company, or otherwise asserts a claim, makes an assessment, or disputes the amount of Taxes (each, a “Tax Contest”) with respect to the contrary herein containedany:
(i) Pre-Closing Tax Period (excluding a Straddle Period), Mortgagor Buyer shall promptly inform Interest Sellers and Interest Sellers shall have the right to contest by appropriate legal proceedings diligently prosecuted control any Taxes imposed or assessed upon resulting Proceedings (at their own expense) and, subject to the Premises or which may be or become a lien thereon immediately following sentence, to determine whether and when to settle any mechanics’such Tax Contest; provided however, materialmen’s or other liens or claims for lien upon that (A) Interest Sellers shall keep Buyer apprised of all developments relating to any such Tax Contest and shall conduct the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice defense of any Contested Lien such Tax Contest diligently and in good faith and (B) Buyer shall have the right to Mortgagee participate in such Tax Contest at its own expense. Interest Sellers shall not settle, compromise and/or concede any portion of a Tax Contest if such settlement, compromise and/or concession would have an adverse impact on Buyer or the Company for any Post-Closing Tax Period, including a post-Closing Straddle Period, without the consent of Buyer, which consent shall not be unreasonably withheld, delayed or conditioned. If, with respect to any Tax Contest, Interest Sellers fail diligently to defend or prosecute such Tax Contest to a final determination, then Buyer shall at any time thereafter have the right (but not the obligation) to defend or prosecute, at the time the same sole cost, expense and risk of Interest Sellers, such Tax Contest. Buyer shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the have full amount (herein called “Lien Amount”) control of such Contested Lien, together with defense or prosecution and such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all expenses incurred, in so doingProceedings, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand)any settlement or compromise thereof; andor
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee ifPost-Closing Tax Period (including a Straddle Period), Buyer shall have the right to control any resulting Proceedings and, subject to the immediately following sentence, to determine whether and when to settle any such Tax Contest; provided, however, in the opinion case of Mortgageea Tax Contest that relates to a Straddle Period, and notwithstanding Interest Sellers shall have the right to participate in such Tax Contest at their own expense. Buyer shall not settle, compromise and/or concede any portion of a Tax Contest if such contestsettlement, compromise and/or concession would have an adverse impact on Interest Sellers for any Pre-Closing Tax Period, including a pre-Closing Straddle Period, without the Premises shall be in jeopardy or in danger consent of being forfeited or foreclosed; provided that if Mortgagor shall fail so to doInterest Sellers, Mortgagee may, but which consent shall not be required tounreasonably withheld, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond conditioned or title indemnity furnished as aforesaiddelayed.
Appears in 1 contract
Samples: Membership Interest and Asset Purchase Agreement (Montauk Renewables, Inc.)
Contests. Notwithstanding anything (a) After the Closing, each of Buyer and Seller shall promptly notify the other party in writing of any written notice of a proposed assessment, audit, contest, proceeding or litigation (a “Contest”) of Buyer or Seller or of any of the Company and the Subsidiaries which could reasonably be expected to result in grounds for payment by such other party under this Article VII.
(b) For all Contests for which either party alone bears the economic burden under Article VII, such party shall control all such Contests in connection therewith. In other cases, prior to the contrary herein containedClosing Date, Mortgagor Seller shall control all Contests relating to the Company and the Subsidiaries and, after the Closing Date, in the case of a Contest that relates to a non-Consolidated Return (or any item relating thereto or reported thereon) for a taxable period ending on or before, or that includes, the Closing Date, Seller shall have the right at its expense to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon participate in the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”)conduct of such Contest, and no Contested Liens for all taxable periods thereafter, Buyer shall constitute an Event control such Contests; provided, however, that Seller shall control any contest that relates to a Consolidated Return of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice Seller. If Seller does not assume the defense of any Contested Lien to Mortgagee at such Contest for a taxable period ending on or before the time Closing Date, Buyer may defend the same in such manner as it may deem appropriate, including settling such Contest after giving 30 days’ prior written notice to Seller setting forth the terms and conditions of settlement. Notwithstanding the foregoing, Buyer shall control any Contests relating to, and shall be asserted;
(b) Mortgagor under no obligation to dispute or otherwise litigate, any Franchise Fees with respect to which Buyer receives a bona fide request for payment from the applicable franchisor and such Franchise Fees shall either pay under protest or deposit with Mortgagee be paid by Seller to the full amount (herein called “Lien Amount”) of extent such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during Franchise Fees relate to the period of contestprior to the Closing Date, as determined in accordance with Section 7.1 above; provided that Buyer shall not (and shall cause its Affiliates not to) solicit or enter into any arrangement with any franchisor under which payment of Franchise Fees relating to the period prior to the Closing Date is made in lieu of such payment Mortgagor may furnish return for a reduction in Franchise Fees relating to Mortgagee a bond the period on or title indemnity in such amount and form, and issued by a bond after the Closing Date or title insuring company, as may be satisfactory other benefit to Mortgagee;Buyer or its Affiliates.
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the PremisesBuyer and Seller agree to cooperate, and shall permit Mortgagee Buyer agrees to be represented in any such contest cause the Company and shall pay all expenses incurred, in so doing, including fees and expenses of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and Subsidiaries to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee ifcooperate, in the opinion defense against or compromise of Mortgagee, and notwithstanding any such contest, the Premises shall be claim in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidContest.
Appears in 1 contract
Samples: Stock Purchase Agreement (Fibernet Telecom Group Inc\)
Contests. Notwithstanding anything Parent agrees to give prompt written notice to Stockholder Representative of the receipt of any written notice by the Company, Parent or any of Parent’s Affiliates which involves the assertion of any claim, or the commencement of any Action, in respect of which an indemnity may be sought by Parent pursuant to this ARTICLE VI or which could otherwise result in material Losses to the contrary herein contained, Mortgagor shall have parties represented by the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become Stockholder Representative (a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested LiensTax Claim”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “Lien Amount”) of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that any failure to comply with this provision shall reduce Parent’s right to indemnification hereunder only to the extent it adversely affects the ability of the of the Stockholder Representative to contest any Tax Claim relating to such notice. Stockholder Representative (on behalf of the Stockholders, Optionholders and Warrantholders) shall be entitled, at its election, to control the contest or resolution of any Tax Claim relating entirely to Taxes attributable to Pre-Closing Tax Periods; provided, that Stockholder Representative shall keep Parent informed in lieu all material respect of the statue of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount Tax Claim; and formprovided, and issued by a bond or title insuring companyfurther, as may be satisfactory to Mortgagee;
(c) Mortgagor that Stockholder Representative shall diligently prosecute obtain the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture prior written consent of the PremisesParent (which consent shall not be unreasonably withheld or delayed) before entering into any settlement of a claim or ceasing to defend such claim and; provided further, that the Parent shall be entitled to participate in the defense of such claim and shall permit Mortgagee to be represented in any employ counsel of its choice for such contest and shall pay all expenses incurredpurpose, in so doing, including the fees and expenses of Mortgagee’s which separate counsel (shall be borne solely by Parent. Parent shall control the contest or resolution of any Tax Claim that Stockholder Representative does not control under this Section 6.06; provided, that Parent shall keep Stockholder Representative informed in all of which shall constitute so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and material respect to the extent status of such Tax Claim; and provided, further, that any such Contested Lien Parent shall be determined adverse to Mortgagor, or obtain the prior written consent of the Stockholder Representative (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but which consent shall not be required tounreasonably withheld or delayed) before entering into any settlement of a claim or ceasing to defend such claim and; provided further, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may that the Stockholder Representative shall be necessary entitled to participate in the judgment defense of such claim and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Stockholder Representative (on behalf of the Mortgagee to obtain the release Stockholders, Optionholders and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidWarrantholders).
Appears in 1 contract
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor (a) Tenant shall have the right to contest the validity, in whole or in part, of any Imposition by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, conducted in good faith but only after payment of such Imposition unless such payment would operate as a bar to such contest or interfere materially with the prosecution thereof, in which event Tenant may postpone or defer payment of such Imposition during the pendency of such proceedings if:
(ai) Mortgagor neither the Demised Premises nor any part thereof would, by reason of such postponement or deferment, be in danger of being sold, forfeited or lost; and
(ii) if Tenant is not an Investment Grade Entity, Tenant shall forthwith give notice have deposited with Landlord 100% the amount so contested and unpaid, together with all interest and penalties in connection therewith and all charges that may or might be assessed against or become a charge on the Demised Premises or any part thereof in such proceedings, and shall have furnished to Landlord additional security reasonably satisfactory to Landlord sufficient to cover such amount, together with interest, penalties and charges for the period which such proceedings may reasonably be expected to take. Landlord shall hold all funds deposited by Tenant pursuant to the preceding sentence in an interest bearing account in a New York Clearing House member bank, and the interest thereon shall be credited to Tenant (Tenant to pay all taxes on such interest). Upon the termination of any Contested Lien such proceedings, Tenant shall pay, or may direct Landlord to Mortgagee pay out of such deposit, the amount of such Imposition or part thereof as finally determined in such proceedings, the payment of which may have been deferred during the prosecution of such proceedings, together with any costs, fees, interest, penalties or other liabilities accrued in connection therewith, and, upon such payment, Landlord shall return to Tenant, with interest, the balance of the amount, if any, deposited with Landlord with respect to such Imposition. If, at any time during the time continuance of such proceedings, Landlord shall reasonably deem the same amount deposited insufficient, Tenant shall, within thirty (30) days after written demand therefor, make an additional deposit of such sum as Landlord reasonably may request, and upon failure of Tenant so to do, Landlord in addition to any other remedy it may have, may apply the amount theretofore deposited to the payment, removal and discharge of such Imposition, and the interest and penalties in connection therewith and any costs, fees or other liability accruing in any such proceedings, and the balance, if any, shall be asserted;returned to Tenant.
(b) Mortgagor Landlord shall either pay under protest or deposit with Mortgagee have the full amount (herein called “Lien Amount”) of such Contested Lienright, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish at Landlord's election, to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented participate in any such contest proceedings brought by Tenant pursuant to Section 5.3(a) hereof during the last five (5) tax years during the Term hereof. Landlord shall provide all information and transfer to Tenant all responsibility with respect to the tax certiorari proceedings with respect to the Building and the Land which has been brought by Landlord for the tax year commencing on July 1, 2001, and ending on June 30, 2002, provided that Tenant shall pay all expenses incurredemploy counsel reasonably acceptable to Landlord to consummate such proceedings. Landlord shall terminate the portion of the existing agreement between Landlord and Deloitte & Touche which relates to the 2001-2002 tax certiorari proceedings with respect to the Building and Land. In the event that Tenant elects not to bring any such proceedings for any tax year during the Term hereof, in so doingLandlord shall have the right, including fees but not the obligation, to bring such proceedings. The reasonable costs and expenses incurred by Landlord in connection with any such proceedings shall be allocated between Landlord and Tenant in proportion to the respective amounts of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest square footage occupied by each in the Building at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the judgment of the Mortgagee to obtain the release and discharge time of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.proceedings. Any "net tax refund"
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Contests. Notwithstanding anything If written claim is made against an Indemnitee for Taxes with respect to which Lessee is or may be liable for a payment or indemnity hereunder, such Indemnitee will promptly give Lessee notice in writing of such claim; provided, however, that such Indemnitee's failure to give notice will not relieve Lessee of its obligations hereunder, except to the contrary herein contained, Mortgagor shall have extent the right failure to give such notice precludes a contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon of such claim in the Premises or which may be or become a lien thereon and any mechanics’, materialmen’s or other liens or claims for lien upon the Premises (all herein called “Contested Liens”), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
manner contemplated herein. So long as (a) Mortgagor shall forthwith give notice a contest of such Taxes does not involve any Contested Lien to Mortgagee at danger of the time sale, forfeiture or loss of the same shall be asserted;
Aircraft or any interest therein, (b) Mortgagor shall either pay under protest or deposit Lessee has provided the relevant Indemnitee with Mortgagee the full amount (herein called “Lien Amount”) an opinion of independent tax counsel acceptable to such Contested LienIndemnitee that a meritorious basis exists for contesting such claim, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be satisfactory to Mortgagee;
(c) Mortgagor Lessee has made adequate reserves for such Taxes or, if required by the relevant Indemnitee, an adequate bond has been posted by Lessee, and (d) Lessee has acknowledged in writing its obligation to indemnify for such Taxes, then such Indemnitee at Lessee's written request will in good faith, with due diligence and at Lessee's sole cost and expense, contest (or, if permitted by Law, permit Lessee to contest in the name of such Indemnitee) the validity, applicability or amount of such Taxes. If such contest is to be initiated by the payment of, and the claiming of a refund for, any Taxes, Lessee shall diligently prosecute advance to the contest relevant Indemnitee sufficient funds (on an interest-free basis) to make such pay ments and shall indemnify such Indemnitee for any tax consequences resulting from such advance of funds. Although the relevant Indemnitee may consult in good faith with Lessee concerning the conduct of any Contested Lien by appropriate legal contest, such Indemnitee shall control the conduct of all proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee relating to be represented in any such contest and shall pay all expenses incurred, in so doing, including fees and expenses which is brought by or on behalf of Mortgagee’s counsel (all of which shall constitute so much additional Indebtedness bearing interest such Indemnitee. Any contest initiated hereunder may be settled or discontinued at the Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; time provided that if Mortgagor the relevant Indemnitee shall fail so have waived any right to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in indemnification for the judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaidTaxes being contested.
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Samples: Lease Agreement (Pan Am Corp /Fl/)
Contests. Notwithstanding anything to the contrary herein contained, Mortgagor shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes imposed or assessed upon the Premises or which may be or become a lien thereon and any mechanics’', materialmen’s 's or other liens or claims for lien upon the Premises (all herein called “"Contested Liens”"), and no Contested Liens shall constitute an Event of Default hereunder, if, but only if:
(a) a. Mortgagor shall forthwith give notice of any Contested Lien to Mortgagee at the time the same shall be asserted;
(b) b. Mortgagor shall either pay under protest or deposit with Mortgagee the full amount (herein called “"Lien Amount”") of such Contested Lien, together with such amount as Mortgagee may reasonably estimate as interest or penalties which might arise during the period of contest; provided that in lieu of such payment Mortgagor may may, at its option, furnish to Mortgagee a bond or title indemnity in such amount and form, and issued by a bond or title insuring company, as may be reasonably satisfactory to Mortgagee;
(c) c. Mortgagor shall diligently prosecute the contest of any Contested Lien by appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of the Premises, and shall permit Mortgagee to be represented in any such contest and shall pay all reasonable expenses incurred, in so doing, including fees and expenses of Mortgagee’s 's counsel (all of which shall constitute so much additional Indebtedness bearing interest at the Default Loan Rate until paid, and payable upon demand); and;
(d) d. Mortgagor shall pay such Contested Lien and all Lien Amounts together with interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be determined adverse to Mortgagor, or (ii) forthwith upon demand by Mortgagee if, in the reasonable opinion of Mortgagee, and notwithstanding any such contest, the Premises shall be in jeopardy or in danger of being forfeited or foreclosed; provided that if Mortgagor shall fail so to do, Mortgagee may, but shall not be required to, pay all such Contested Liens and Lien Amounts and interest and penalties thereon and such other sums as may be necessary in the reasonable judgment of the Mortgagee to obtain the release and discharge of such liens; and any amount expended by Mortgagee in so doing shall be so much additional Indebtedness bearing interest at the Default Rate until paid, and payable upon demand; and provided further that Mortgagee may in such case use and apply monies deposited as provided in subsection (b) above and may demand payment upon any bond or title indemnity furnished as aforesaid.
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