Common use of Loss of Tax Exclusion Clause in Contracts

Loss of Tax Exclusion. Borrower understands that the interest rates provided under the Note and this Loan Agreement have been established on the assumption that interest paid on the Bonds will be excludable from the Bondholders’ gross income under Section 103 of the Code and applicable State law (except to the extent that any Bonds are owned by a person or entity which is a “substantial user” of the Property or a “related person” to the Borrower). In the event that (i) Borrower receives notice from Bondowner Representative that Bondowner Representative has discovered any facts or circumstances that would cause interest paid on the Bonds not to be tax-exempt; or (ii) any Bondholder receives notice from the Internal Revenue Service or other governmental authority that interest payable on the Bonds is not tax-exempt, or that the Internal Revenue Service is challenging the tax-exempt status of the Bonds, then the interest rate shall be increased, both prospectively and retroactively, to an annual variable rate equal to the Default Rate. Notwithstanding the foregoing, any change in the interest rate on the Bonds pursuant to this Section 11.41 applicable on and after the Conversion Date shall cause the Note to bear interest at the Default Rate. In the event of an increase in the interest rate under this Section 11.41, Borrower shall pay to the Bondholders promptly upon demand an amount sufficient to adjust previous payments of interest to the increased rate. Borrower shall also indemnify, defend and hold Issuer and Bondowner Representative harmless from any penalties, interest expense or other costs, including reasonable attorneys’ fees (including all charges of Issuer’s and Bondowner Representative’s internal and tax counsel) and accountants’ costs, resulting from any dispute with the Internal Revenue Service concerning the exclusion from gross income for federal income tax purposes of interest on the Bonds and the interest payable to any Bondholder on the Bonds, and upon receipt by Bondowner Representative of the amounts set forth in the foregoing indemnity, Bondowner Representative shall assign to Borrower any claims it may have against third parties for negligent acts or omissions in connection with the failure of interest on the Bonds to be excludable from gross income for federal income tax purposes. The obligations of Borrower under this paragraph shall survive termination of this Loan Agreement and repayment of the Loan.

Loss of Tax Exclusion. The Borrower understands that the interest rates provided under this Agreement with respect to the Note and this Loan Agreement have been established Bonds are based on the assumption that interest income paid on the Bonds and received by the Bondholders will be excludable from the Holders’ gross income for federal income tax purposes. In the event that (i) if, prior to the Conversion Date, (i) the Borrower receives notice from the Bondholder Representative or the Issuer that the Bondholder Representative or the Issuer, respectively, has discovered any facts, actions, or failures to act by the Borrower that would cause interest on the Bonds to be includable in gross income for federal income tax purposes (unless the Borrower provides to the Holders, within thirty (30) days after the Borrower’s receipt of such notice from the Bondholder Representative, an opinion from Bond Counsel, that notwithstanding any facts, actions or failures to act by the Borrower, interest on the Bonds will be excludable from the Bondholders’ gross income under Section 103 of the Code and applicable State law (except to the extent that any Bonds are owned by a person or entity which is a “substantial user” of the Property or a “related person” to the Borrower). In the event that (i) Borrower receives notice from Bondowner Representative that Bondowner Representative has discovered any facts or circumstances that would cause interest paid on the Bonds not to be tax-exemptfor federal income tax purposes; or (ii) any Bondholder Holder receives notice from the Internal Revenue Service or other governmental authority government agency that interest payable on the Bonds is not tax-exemptincludable in gross income for federal income tax purposes, or that the Internal Revenue Service is challenging the tax-exempt status of interest on the BondsBonds as excludable from gross income for federal income tax purposes, then the interest rate on the Note and on all obligations under this Agreement shall be increased, both prospectively and retroactively, increased to an annual variable a rate equal to the Default Rate. Notwithstanding The Bondholder Representative receives notice of a Determination of Taxability, the foregoing, any change Loan shall be subject to mandatory prepayment as set forth in Section 10.1 herein and Section 3.1(1)(d) of the Indenture and the interest rate on the Bonds pursuant Loan shall be increased to this Section 11.41 applicable the Default Rate for the period during which interest is deemed to be includable in gross income for federal income tax purposes. If, on and or after the Conversion Date shall cause Date, the Note to bear interest at Permanent Lender receives notice of a Determination of Taxability, the Default Rate. In the event of an increase in the interest rate under this Section 11.41, Borrower shall pay to the Bondholders Permanent Lender (i) an additional amount equal to the difference between (A) the amount of interest paid to the Permanent Lender hereunder during the non-taxable period and (B) the amount of interest, at a rate equal to the product of the Permanent Loan Contract Rate and [ ] (the “Taxable Rate”), that would have been paid to the Permanent Lender hereunder during the taxable period had this Note borne interest at the Taxable Rate, plus (ii) an amount equal to any interest, penalties on overdue interest and additions to tax owed by the Permanent Lender as a result of the occurrence of a Determination of Taxability. In addition, the rate of interest on this Note shall be automatically increased, effective as of the date on which interest is determined to have been includable in gross income for federal income tax purposes. The interest rates on the Bonds will be increased to a per annum rate equal to the Default Rate both prospectively and retroactively to the date on which such Determination of Taxability on the Bonds shall be applicable, and the Borrower shall pay to the Holders promptly upon demand an amount sufficient to adjust previous payments of any interest to the increased ratedue retroactively. The Borrower shall also indemnify, defend defend, and hold the Bondholder Representative, the Trustee and the Issuer and Bondowner Representative harmless from any penalties, interest expense or other costs, including reasonable attorneys’ fees (including all allocated time and charges of the Bondholder Representative’s, the Trustee’s and the Issuer’s “in house” and Bondowner Representative’s internal and tax “outside” counsel) and accountants’ costs, resulting from any dispute with the Internal Revenue Service concerning the exclusion from gross income for federal income proper tax purposes treatment of interest on the Bonds and the interest payable to any Bondholder Holder on the Bonds, and upon receipt by Bondowner Representative of the amounts set forth in the foregoing indemnity, Bondowner Representative shall assign to Borrower any claims it may have against third parties for negligent acts or omissions in connection with the failure of interest on the Bonds to be excludable from gross income for federal income tax purposes. The obligations of the Borrower under this paragraph shall survive termination of this Loan Agreement and repayment of the Loan. If, following any increase in interest rates pursuant to this Section 7.14 a final determination is made, to the satisfaction of the Bondholder Representative, that interest paid on the Bonds is excludable from the Bondholders’ gross income for federal income tax purposes, the Holders shall promptly refund to the Borrower any additional interest paid by the Borrower pursuant to this Section 7.14 and the interest rate or rates on the Note that otherwise would have been in effect if not for the Determination of Taxability shall be reinstated retroactive to the date on which such rate or rates were increased pursuant to this Section 7.14. Notwithstanding any provision of this Section 7.14 to the contrary, in no event shall the interest rate on the Note exceed the Maximum Lawful Rate.

Loss of Tax Exclusion. Borrower understands that the interest rates provided under the Note and this Loan Agreement have been established on the assumption that interest paid on the Bonds will be excludable from the Bondholders’ gross income under Section 103 of the Code and applicable State law (except to the extent that any Bonds are owned by a person or entity which is a “substantial user” of the Property or a “related person” to the Borrower). In the event that (i) Borrower receives notice from Bondowner Representative that Bondowner Representative has discovered any facts or circumstances that would cause interest paid on the Bonds not to be tax-exempt; or (ii) any Bondholder receives notice from the Internal Revenue Service or other governmental authority that interest payable on the Bonds is not tax-exempt, or that the Internal Revenue Service is challenging the tax-exempt status of the Bonds, then the interest rate shall be increased, both prospectively and retroactively, to an annual variable rate equal to the Default Rate. Notwithstanding the foregoing, any change in the interest rate on the Bonds pursuant to this Section 11.41 applicable on and after the Conversion Date shall cause the Note to bear interest at the Default Rate. In the event of an increase in the interest rate under this Section 11.41, Borrower shall pay to the Bondholders promptly upon demand an amount sufficient to adjust previous payments of interest to the increased rate. Borrower Xxxxxxxx shall also indemnify, defend and hold Issuer and Bondowner Representative harmless from any penalties, interest expense or other costs, including reasonable attorneys’ fees (including all charges of Issuer’s and Bondowner Representative’s internal and tax counsel) and accountants’ costs, resulting from any dispute with the Internal Revenue Service concerning the exclusion from gross income for federal income tax purposes of interest on the Bonds and the interest payable to any Bondholder on the Bonds, and upon receipt by Bondowner Representative of the amounts set forth in the foregoing indemnity, Bondowner Representative shall assign to Borrower any claims it may have against third parties for negligent acts or omissions in connection with the failure of interest on the Bonds to be excludable from gross income for federal income tax purposes. The obligations of Borrower under this paragraph shall survive termination of this Loan Agreement and repayment of the Loan.

Loss of Tax Exclusion. ‌ The Borrower understands that the interest rates provided under this Agreement with respect to the Note and this Loan Agreement have been established Bonds are based on the assumption that interest income paid on the Bonds and received by the Bondholders will be excludable from the Holders’ gross income for federal income tax purposes. In the event that (i) if, prior to the Conversion Date, (i) the Borrower receives notice from the Bondholder Representative or the Issuer that the Bondholder Representative or the Issuer, respectively, has discovered any facts, actions, or failures to act by the Borrower that would cause interest on the Bonds to be includable in gross income for federal income tax purposes (unless the Borrower provides to the Holders, within thirty (30) days after the Borrower’s receipt of such notice from the Bondholder Representative, an opinion from Bond Counsel, that notwithstanding any facts, actions or failures to act by the Borrower, interest on the Bonds will be excludable from the Bondholders’ gross income under Section 103 of the Code and applicable State law (except to the extent that any Bonds are owned by a person or entity which is a “substantial user” of the Property or a “related person” to the Borrower). In the event that (i) Borrower receives notice from Bondowner Representative that Bondowner Representative has discovered any facts or circumstances that would cause interest paid on the Bonds not to be tax-exemptfor federal income tax purposes; or (ii) any Bondholder Holder receives notice from the Internal Revenue Service or other governmental authority government agency that interest payable on the Bonds is not tax-exemptincludable in gross income for federal income tax purposes, or that the Internal Revenue Service is challenging the tax-exempt status of interest on the BondsBonds as excludable from gross income for federal income tax purposes, then the interest rate on the Note and on all obligations under this Agreement shall be increased, both prospectively and retroactively, increased to an annual variable a rate equal to the Default Rate. Notwithstanding The Bondholder Representative receives notice of a Determination of Taxability, the foregoing, any change Loan shall be subject to mandatory prepayment as set forth in Section 10.1 herein and Section 3.1(1)(d) of the Indenture and the interest rate on the Bonds pursuant Loan shall be increased to this Section 11.41 applicable the Default Rate for the period during which interest is deemed to be includable in gross income for federal income tax purposes. If, on and or after the Conversion Date shall cause Date, the Note to bear interest at Permanent Lender receives notice of a Determination of Taxability, the Default Rate. In the event of an increase in the interest rate under this Section 11.41, Borrower shall pay to the Bondholders Permanent Lender (i) an additional amount equal to the difference between (A) the amount of interest paid to the Permanent Lender hereunder during the non-taxable period and (B) the amount of interest, at a rate equal to the product of the Permanent Loan Contract Rate and 1.20 (the “Taxable Rate”), that would have been paid to the Permanent Lender hereunder during the taxable period had this Note borne interest at the Taxable Rate, plus (ii) an amount equal to any interest, penalties on overdue interest and additions to tax owed by the Permanent Lender as a result of the occurrence of a Determination of Taxability. In addition, the rate of interest on this Note shall be automatically increased, effective as of the date on which interest is determined to have been includable in gross income for federal income tax purposes. The interest rates on the Bonds will be increased to a per annum rate equal to the Default Rate both prospectively and retroactively to the date on which such Determination of Taxability on the Bonds shall be applicable, and the Borrower shall pay to the Holders promptly upon demand an amount sufficient to adjust previous payments of any interest to the increased ratedue retroactively. The Borrower shall also indemnify, defend defend, and hold the Bondholder Representative, the Trustee and the Issuer and Bondowner Representative harmless from any penalties, interest expense or other costs, including reasonable attorneys’ fees (including all allocated time and charges of the Bondholder Representative’s, the Trustee’s and the Issuer’s “in house” and Bondowner Representative’s internal and tax “outside” counsel) and accountants’ costs, resulting from any dispute with the Internal Revenue Service concerning the exclusion from gross income for federal income proper tax purposes treatment of interest on the Bonds and the interest payable to any Bondholder Holder on the Bonds, and upon receipt by Bondowner Representative of the amounts set forth in the foregoing indemnity, Bondowner Representative shall assign to Borrower any claims it may have against third parties for negligent acts or omissions in connection with the failure of interest on the Bonds to be excludable from gross income for federal income tax purposes. The obligations of the Borrower under this paragraph shall survive termination of this Loan Agreement and repayment of the Loan. If, following any increase in interest rates pursuant to this Section 7.14 a final determination is made, to the satisfaction of the Bondholder Representative, that interest paid on the Bonds is excludable from the Bondholders’ gross income for federal income tax purposes, the Holders shall promptly refund to the Borrower any additional interest paid by the Borrower pursuant to this Section 7.14 and the interest rate or rates on the Note that otherwise would have been in effect if not for the Determination of Taxability shall be reinstated retroactive to the date on which such rate or rates were increased pursuant to this Section 7.14. Notwithstanding any provision of this Section 7.14 to the contrary, in no event shall the interest rate on the Note exceed the Maximum Lawful Rate.

Loss of Tax Exclusion. Borrower understands that the interest rates provided under the Note and this Loan Agreement have been established on the assumption that interest paid on the Bonds will be excludable from the Bondholders’ gross income under Section 103 of the Code and applicable State law (except to the extent that any Bonds are owned by a person or entity which is a “substantial user” of the Property or a “related person” to the Borrower)law. In the event that (i) Borrower receives notice from Bondowner Representative that Bondowner Representative has discovered any facts or circumstances that Bond Counsel determines would cause interest paid on the Bonds not to be tax-exempt; or (ii) any Bondholder receives notice a final determination from the Internal Revenue Service or other governmental authority Governmental Authority that interest payable on the Bonds is not tax-exempt, or that the Internal Revenue Service is challenging the tax-exempt status of the Bonds, then the interest rate Effective Rate on the Note shall be increased, both prospectively and retroactively, increased to an annual variable rate equal to the Default Rate. Notwithstanding the foregoing, any change in the interest rate on the Bonds pursuant to this Section 11.41 applicable on and after the Conversion Date shall cause the Note to bear interest at the Default Rate. In the event of an increase in the interest rate Effective Rate under this Section 11.416.30, Borrower shall pay to the Bondholders promptly upon demand an amount sufficient to adjust previous payments of interest to the increased rate. Borrower shall also indemnify, defend rate for any and hold Issuer and Bondowner Representative harmless from any penalties, interest expense or other costs, including reasonable attorneys’ fees (including all charges of Issuer’s and Bondowner Representative’s internal and tax counsel) and accountants’ costs, resulting from any dispute with the Internal Revenue Service concerning the exclusion from gross income for federal income tax purposes of interest on periods during which the Bonds and the interest payable are deemed to any Bondholder on the Bondshave not been tax- exempt. BORROWER SHALL ALSO INDEMNIFY, and upon receipt by Bondowner Representative of the amounts set forth in the foregoing indemnityDEFEND AND HOLD ISSUER AND BONDOWNER REPRESENTATIVE HARMLESS FROM ANY PENALTIES, Bondowner Representative shall assign to Borrower any claims it may have against third parties for negligent acts or omissions in connection with the failure of interest on the Bonds to be excludable from gross income for federal income tax purposesINTEREST EXPENSE OR OTHER COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES (INCLUDING ALL CHARGES OF ISSUER’S AND BONDOWNER REPRESENTATIVE’S INTERNAL AND TAX COUNSEL) AND ACCOUNTANTS’ COSTS, RESULTING FROM ANY DISPUTE WITH THE INTERNAL REVENUE SERVICE CONCERNING THE EXCLUSION FROM GROSS INCOME FOR FEDERAL INCOME TAX PURPOSES OF INTEREST ON THE BONDS AND THE INTEREST PAYABLE TO ANY BONDHOLDER ON THE BONDS, AND UPON RECEIPT BY BONDOWNER REPRESENTATIVE OF THE AMOUNTS SET FORTH IN THE FOREGOING INDEMNITY, BONDOWNER REPRESENTATIVE SHALL ASSIGN TO BORROWER ANY CLAIMS IT MAY HAVE AGAINST THIRD PARTIES FOR NEGLIGENT ACTS OR OMISSIONS IN CONNECTION WITH THE FAILURE OF INTEREST ON THE BONDS TO BE EXCLUDABLE FROM GROSS INCOME FOR FEDERAL INCOME TAX PURPOSES. The obligations of Borrower under this paragraph shall survive termination of this Loan Agreement and repayment of the LoanTHE ISSUER SHALL HAVE THE RIGHT TO ENTER INTO CLOSING AGREEMENTS WITH THE INTERNAL REVENUE SERVICE IN THE ISSUER’S SOLE DISCRETION, AND ANY LIABILITY ARISING UNDER SUCH CLOSING AGREEMENTS SHALL BE PAID BY BORROWER. THE OBLIGATIONS OF BORROWER UNDER THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT AND REPAYMENT OF THE LOAN.

Loss of Tax Exclusion. Borrower understands that the interest rates provided under the Note and this Loan Agreement have been established on the assumption that interest paid on the Bonds Bond will be excludable from the Bondholders’ gross income under Section 103 of the Code and applicable State law (except to the extent that any Bonds are owned by a person or entity which is a “substantial user” of the Property or a “related person” to the Borrower)law. In the event that (i) Borrower receives notice from Bondowner Representative that Bondowner Representative has discovered any facts or circumstances that would cause interest paid on the Bonds Bond not to be tax-exempt; or (ii) any Bondholder receives notice from the Internal Revenue Service or other governmental authority that interest payable on the Bonds Bond is not tax-exempt, or that the Internal Revenue Service is challenging the tax-exempt status of the BondsBond, then the interest rate shall be increased, both prospectively and retroactively, to an annual variable rate equal to the Default Rate. Notwithstanding the foregoing, any change in the interest rate on the Bonds pursuant to this Section 11.41 applicable on and after the Conversion Date shall cause the Note to bear interest at the Default Rate. In the event of an increase in the interest rate under this Section 11.4111.42, Borrower shall pay to the Bondholders promptly upon demand an amount sufficient to adjust previous payments of interest to the increased rate. Borrower shall also indemnify, defend and hold Issuer and Bondowner Representative harmless from any penalties, interest expense or other costs, including reasonable attorneys’ ' fees (including all charges of Issuerissuer’s, Bond Trustee’s and Bondowner Representative’s internal and tax counsel) and accountants’ costs, resulting from any dispute with the Internal Revenue Service concerning the exclusion from gross income for federal income tax purposes of interest on the Bonds Bond and the interest payable to any Bondholder on the BondsBond, and upon receipt by Bondowner Representative of the amounts set forth in the foregoing indemnity, Bondowner Representative shall assign to Borrower any claims it may have against third parties for negligent acts or omissions in connection with the failure of interest on the Bonds Bond to be excludable from gross income for federal income tax purposes. The obligations of Borrower under this paragraph shall survive termination of this Loan Agreement and repayment of the Loan.