Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 10 contracts
Samples: Participation Agreement (Continental Airlines Inc /De/), Participation Agreement (Continental Airlines Inc /De/), Participation Agreement (Continental Airlines Inc /De/)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner Lessee could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner Lessee could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner Lessee notice in writing of such claim (provided, that failure to so notify Owner Lessee shall not relieve Owner Lessee of its indemnity obligations hereunder unless such failure to notify effectively forecloses OwnerLessee's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner Lessee for 30 days following the receipt of such notice by OwnerLessee; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to OwnerLessee, so inform OwnerLessee, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by OwnerLessee) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner Lessee shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner Lessee with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Lessee may be required to indemnify hereunder. If requested by Owner Lessee in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner Lessee (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner Lessee to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by OwnerLessee, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner Lessee to control the conduct of any such proceeding and shall provide to Owner Lessee (at OwnerLessee's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner Lessee in good faith regarding the manner of contesting such claim and shall keep Owner Lessee reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 9.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner Lessee (except as contemplated by Section 8.3.4(b9.3.4(b) or (c)).
Appears in 7 contracts
Samples: Participation Agreement (Continental Airlines Inc /De/), Participation Agreement (Continental Airlines Inc /De/), Participation Agreement (Atlas Air Inc)
Contest. (a1) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner Borrower could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination determines that a Tax is due for which Owner Borrower could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice notify Borrower in writing of such claim (provided, that failure so to so notify Owner Borrower shall not relieve Owner Borrower of its indemnity obligations hereunder except to the extent that such failure increases the amount of Taxes subject to such claim as the result of the imposition of penalties or interest or unless such the failure to notify effectively forecloses Owner's Borrower’s rights to require a successfully contest of such claim) ), and shall take no action with respect to such claim without the Borrower’s prior written consent of Owner for 30 thirty (30) days following the Borrower’s receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest)notice. In addition, such Tax Indemnitee shall (provided, provided that Owner Borrower shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner Borrower with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Borrower may be required to indemnify hereunder. If requested by Owner Borrower in writing within 30 thirty (30) days after its receipt of such notice, such Tax Indemnitee shall, at the Borrower’s expense of Owner (including, without limitation, including all reasonable costsout-of-pocket costs and expenses, expenses and including reasonable attorneys' ’ and accountants' ’ fees and disbursementsdisbursements incurred in connection with, and reasonably allocable to, the contest of such Tax), in good faith contest (or, if permitted by applicable lawlaw and to the extent provided below, allow Owner Borrower to contest) through appropriate administrative and judicial proceedings the validity, applicability applicability, or amount of such Taxes by (Ix) resisting payment thereof, (IIy) not paying the same Taxes except under protest if protest is necessary and proper proper, or (IIIz) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or or judicial proceedingproceeding (with the determination of which alternative to be used made in the sole discretion of the party controlling the contest). If requested to do so by OwnerBorrower, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If Borrower shall have the right, at its cost and expense, (A) in any judicial or administrative proceeding that involves an indemnified Tax and other Taxes which do not involve such Tax Indemnitee, to assume responsibility for and control of the extent the defense thereof, (B) in any judicial or administrative proceeding that involves an indemnified Tax and other Taxes asserted against such Tax Indemnitee is able to separate the contested issue related or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements withoutAgreements, (x) to assume responsibility for and control of the defense of such indemnified Tax to the extent that the same may be and is severed from such other claims (and such Tax Indemnitee shall use its reasonable efforts to obtain such severance) or (y) if such indemnified Tax is not severable from other claims with respect to Taxes asserted against such Tax Indemnitee that are material to such Tax Indemnitee, to assume responsibility for and control of the defense of such indemnified Tax if such assumption would not, in such Tax Indemnitee’s reasonable judgment, prejudice or impair in any material respect, such Tax Indemnitee’s management of such other claims and (C) in any other case, to be consulted by such Tax Indemnitee and in which case such Tax Indemnitee agrees to cooperate with reasonable requests of Borrower, each such request at Borrower’s cost and expense, with respect to judicial proceedings subject to the control of such Tax Indemnitee and to be allowed, at Borrower’s cost and expense, to participate therein. The Tax Indemnitee may participate at its own cost and expense and with its own counsel in any judicial proceeding controlled by Borrower pursuant to the preceding provisions; provided that such Tax Indemnitee’s participation does not, in Borrower’s reasonable judgment, prejudice or impair in any material respect the defense and management of such case. Borrower shall not be entitled to control the defense of any such judicial or administrative proceeding (and the relevant Tax Indemnitee shall be entitled to assume such control) if such proceedings are likely to entail any risk of criminal liability or material risk of civil liability being imposed on such Tax Indemnitee that, in the good faith judgment case of civil liability in the reasonable opinion of such Tax Indemnitee, adversely affecting affects in any material respect the business reputation of such Tax Indemnitee or if, in the reasonable opinion of such Tax Indemnitee, such Tax Indemnitee shall permit Owner control by Borrower would be inappropriate due to control the conduct a conflict of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contestinterest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 9.3(e) (including, without limitation, including any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the Borrower’s prior written consent of the Owner (except as contemplated by Section 8.3.4(bSections 9.3(e)(2) or (c3), which consent may not be unreasonably withheld).
Appears in 6 contracts
Samples: Loan Agreement (Airtran Holdings Inc), Loan Agreement (Airtran Holdings Inc), Loan Agreement (Airtran Holdings Inc)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's ’s rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' ’ and accountants' ’ fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's ’s cost and expense) with such information or data that is in such Tax Indemnitee's ’s control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 6 contracts
Samples: Note Purchase Agreement (United Airlines, Inc.), Note Purchase Agreement (United Airlines, Inc.), Note Purchase Agreement (United Airlines, Inc.)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any BACK adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 4 contracts
Samples: Note Purchase Agreement (United Airlines, Inc.), Note Purchase Agreement (United Airlines, Inc.), Note Purchase Agreement (United Airlines, Inc.)
Contest. (a1) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner Borrower could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination determines that a Tax is due for which Owner Borrower could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice notify Borrower in writing of such claim (provided, that failure so to so notify Owner Borrower shall not relieve Owner Borrower of its indemnity obligations hereunder except to the extent that such failure increases the amount of Taxes subject to such claim as the result of the imposition of penalties or interest or unless such the failure to notify effectively forecloses Owner's Borrower’s rights to require a successfully contest of such claim) ), and shall take no action with respect to such claim without the Borrower’s prior written consent of Owner for 30 thirty (30) days following the Borrower’s receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest)notice. In addition, such Tax Indemnitee shall (provided, provided that Owner Borrower shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner Borrower with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Borrower may be required to indemnify hereunder. If requested by Owner Borrower in writing within 30 thirty (30) days after its receipt of such notice, such Tax Indemnitee shall, at the Borrower’s expense of Owner (including, without limitation, including all reasonable costsout-of-pocket costs and expenses, expenses and including reasonable attorneys' ’ and accountants' ’ fees and disbursementsdisbursements incurred in connection with, and reasonably allocable to, the contest of such Tax), in good faith contest (or, if permitted by applicable lawlaw and to the extent provided below, allow Owner Borrower to contest) through appropriate administrative and judicial proceedings the validity, applicability applicability, or amount of such Taxes by (Ix) resisting payment thereof, (IIy) not paying the same Taxes except under protest if protest is necessary and proper proper, or (IIIz) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or or judicial proceedingproceeding (with the determination of which alternative to be used made in the sole discretion of the party controlling the contest). If requested to do so by OwnerBorrower, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If Borrower shall have the right, at its cost and expense, (A) in any judicial or administrative proceeding that involves an indemnified Tax and other Taxes which do not involve such Tax Indemnitee, to assume responsibility for and control of the extent the defense thereof, (B) in any judicial or administrative proceeding that involves an indemnified Tax and other Taxes asserted against such Tax Indemnitee is able to separate the contested issue related or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements withoutAgreements, (x) to assume responsibility for and control of the defense of such indemnified Tax to the extent that the same may be and is severed from such other claims (and such Tax Indemnitee shall use its reasonable efforts to obtain such severance) or (y) if such indemnified Tax is not severable from other claims with respect to Taxes asserted against such Tax Indemnitee that are material to such Tax Indemnitee, to assume responsibility for and control of the defense of such indemnified Tax if such assumption would not, in such Tax Indemnitee’s reasonable judgment, prejudice or impair in any material respect, such Tax Indemnitee’s management of such other claims and (C) in any other case, to be consulted by such Tax Indemnitee and in which case such Tax Indemnitee agrees to cooperate with reasonable requests of Borrower, each such request at Borrower’s cost and expense, with respect to judicial proceedings subject to the control of such Tax Indemnitee and to be allowed, at Borrower’s cost and expense, to participate therein. The Tax Indemnitee may participate at its own cost and expense and with its own counsel in any judicial proceeding controlled by Borrower pursuant to the preceding provisions; provided that such Tax Indemnitee’s participation does not, in Borrower’s reasonable judgment, prejudice or impair in any material respect the defense and management of such case. Borrower shall not be entitled to control the defense of any such judicial or administrative proceeding (and the relevant Tax Indemnitee shall be entitled to assume such control) if such proceedings are likely to entail any risk of criminal liability or material risk of civil liability being imposed on such Tax Indemnitee that, in the good faith judgment case of civil liability in the reasonable opinion of such Tax Indemnitee, adversely affecting affects in any material respect the business reputation of such Tax Indemnitee or if, in the reasonable opinion of such Tax Indemnitee, such Tax Indemnitee shall permit Owner control by Borrower would be inappropriate due to control the conduct a conflict of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contestinterest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 10(c)(v) (including, without limitation, including any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the Borrower’s prior written consent of the Owner (except as contemplated by Section 8.3.4(bSections 10(c)(v)(2) or (c3), which consent may not be unreasonably withheld).
Appears in 3 contracts
Samples: Credit Agreement (Airtran Holdings Inc), Credit Agreement (Airtran Holdings Inc), Credit Agreement (Airtran Holdings Inc)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner Lessee could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner Lessee could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner Lessee notice in writing of such claim (provided, that failure to so notify Owner Lessee shall not relieve Owner Lessee of its indemnity obligations hereunder unless such failure to notify effectively forecloses OwnerLessee's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner Lessee for 30 days following the receipt of such notice by OwnerLessee; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to OwnerLessee, so inform OwnerLessee, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by OwnerLessee) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that that, in its good faith opinion, is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner Lessee shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner Lessee with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Lessee may be required to indemnify hereunder. If requested by Owner Lessee in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner Lessee (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable lawlaw to be contested by the Lessee in its own name, allow Owner Lessee to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by OwnerLessee, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner Lessee to control the conduct of any contest such proceeding matter in its own name, if permitted by applicable law, and shall provide to Owner Lessee (at OwnerLessee's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contestcontest (other than such Tax Indemnitee's federal income tax returns). In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner Lessee in good faith regarding the manner of contesting such claim and shall keep Owner Lessee reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).such
Appears in 3 contracts
Samples: Participation Agreement (Continental Airlines Inc /De/), Participation Agreement (Continental Airlines Inc /De/), Participation Agreement (Continental Airlines Inc /De/)
Contest. (a) If a written claim is made against a any Tax Indemnitee for Taxes with respect any Tax that is subject to which Owner could be liable for payment or indemnity hereunderindemnification under this Clause 9, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly Lessor will give Owner Lessee written notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner Lessee so requests in writing within 30 days after its receipt of such notice, such the relevant Tax Indemnitee shallshall permit Lessee to contest the claim in the name of the Tax Indemnitee or in the name of Lessee, at to the expense extent permitted by law. However, if such claim together with other claims which could be made with respect to other transactions to which the Tax Indemnitee is then a party could (if sustained) have an adverse effect on the Tax Indemnitee's business or financial affairs (a "Special Claim"), or if Lessee shall not be permitted by law to contest a claim (other than a Special Claim) on behalf of Owner the Tax Indemnitee, then the Tax Indemnitee shall contest such claim in good faith. Notwithstanding the foregoing, no claim shall be contested unless and until: (including, without limitation, a) the Tax Indemnitee shall have received (i) an indemnity reasonably satisfactory to it for all reasonable costs, expenses and reasonable reasonably expected to be paid in contesting the claim (including attorneys' and accountants' fees and disbursements)) and (ii) written acknowledgement by Lessee of its liability hereunder (if such contest is decided adversely) in respect of such Taxes; (b) the action to be taken will not involve any material risk of the sale, forfeiture, seizure or loss of, or the creation of any Lien (except a Lien which Lessee shall have bonded in an amount and manner reasonably satisfactory to Lessor) on, the Aircraft or any part thereof or any interest therein; (c) if such contest shall be conducted in a manner requiring the payment of the claim, Lessee shall have advanced the amount required on an interest-free after-tax basis; (d) no Event of Default shall have occurred and be continuing and Lessor shall be receiving all amounts of Rent when due, without reduction by reason of any Taxes; and (e) if such claim is a Special Claim, the relevant Tax Indemnitee shall have received a legal opinion (at the expense of Lessee) from counsel satisfactory to the Tax Indemnitee indicating that a reasonable basis for such contest exists. The relevant Tax Indemnitee and Lessee shall in good faith contest (orconsider the other party's views regarding the conduct of the contest. The relevant Tax Indemnitee and Lessee shall provide to each other, upon request, such reasonably obtainable information and such other reasonable assistance as may be necessary or advisable for the effective evaluation or conduct of such contest. Notwithstanding the foregoing provisions of this Clause 9.4, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the at any time any Tax Indemnitee shall appeal any adverse administrative waives its right of indemnification under this Clause 9 in respect of a claim, or judicial decisionif, except that the Tax Indemnitee shall not be required after having received payment of indemnification from Lessee hereunder in respect to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemniteeclaim, such Tax Indemnitee tenders such payment to Lessee, then Lessee shall permit Owner not be entitled to control the conduct of contest, or to continue to contest, any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 2 contracts
Samples: Aircraft Lease Agreement (Ubics Inc), Aircraft Lease Agreement (Ubics Inc)
Contest. (a1) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner Borrower could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination determines that a Tax is due for which Owner Borrower could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice notify Borrower in writing of such claim (provided, that failure so to so notify Owner Borrower shall not relieve Owner Borrower of its indemnity obligations hereunder unless except to the extent that such failure to notify effectively forecloses Owner's has a material adverse effect on Borrower’s indemnification obligations hereunder or on Borrower’s rights to require a successfully contest of such claim) ), and shall take no action with respect to such claim without the Borrower’s prior written consent of Owner for 30 days following the Borrower’s receipt of such notice by Ownernotice; provided, that, in the case of a claim made against a Tax Indemnitee, if applicable Law requires such Tax Indemnitee shall be required by law to take action prior to before the end of such 30-day period, such Tax Indemnitee shall, in such notice to OwnerBorrower, so inform OwnerBorrower, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest)avoid taking action. In addition, such Such Tax Indemnitee shall (provided, provided that Owner Borrower shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim, such agreement to be delivered to the Tax Indemnitee and in form and substance reasonably acceptable to it) furnish Owner Borrower with copies of the relevant portions of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Borrower may be required to indemnify hereunder. If requested by Owner Borrower in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the Borrower’s expense of Owner (including, without limitation, including all reasonable costsout-of-pocket costs and expenses, expenses and including reasonable attorneys' ’ and accountants' ’ fees and disbursementsdisbursements incurred in connection with, and reasonably allocable to, the contest of such Tax), in good faith contest (or, if permitted by applicable lawLaw, allow Owner Borrower to contest) through appropriate administrative and judicial proceedings the validity, applicability applicability, or amount of such Taxes by (Ix) resisting payment thereof, (IIy) not paying the same Taxes except under protest if protest is necessary and proper proper, or (IIIz) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or or judicial proceeding. If requested to do so by OwnerBorrower in writing, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent that the Tax Indemnitee is able able, using reasonable efforts, to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, Transactions without (in the good faith judgment of such Tax Indemnitee, ’s good faith judgment) adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner Borrower to control the conduct of any such proceeding and shall provide to Owner Borrower (at Owner's Borrower’s cost and expense) with such information or data that is in such Tax Indemnitee's ’s control or possession that is and reasonably necessary to conduct such contest. In If the case of a contest is being controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner Borrower in good faith regarding the manner of contesting such claim claim, and shall keep Owner Borrower reasonably informed regarding the progress of such contest. If the contest is being controlled by Borrower, Borrower shall consult with the applicable Tax Indemnitee in good faith regarding the manner of contesting such claim, and shall keep such Tax Indemnitee reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 10(c)(v) (including, without limitation, including any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the Borrower’s prior written consent of the Owner (except as contemplated by Section 8.3.4(bSections 10(c)(v)(2) or (c3)).
Appears in 2 contracts
Samples: Credit Agreement (Airtran Holdings Inc), Credit Agreement (Airtran Holdings Inc)
Contest. (a1) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner Borrower could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination determines that a Tax is due for which Owner Borrower could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice notify Borrower in writing of such claim (provided, that failure so to so notify Owner Borrower shall not relieve Owner Borrower of its indemnity obligations hereunder unless except to the extent that such failure to notify effectively forecloses Owner's has a material adverse effect on Borrower’s indemnification obligations hereunder or on Borrower’s rights to require a successfully contest of such claim) ), and shall take no action with respect to such claim without the Borrower’s prior written consent of Owner for 30 days following the Borrower’s receipt of such notice by Ownernotice; provided, that, in the case of a claim made against a Tax Indemnitee, if applicable Law requires such Tax Indemnitee shall be required by law to take action prior to before the end of such 30-day period, such Tax Indemnitee shall, in such notice to OwnerBorrower, so inform OwnerBorrower, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest)avoid taking action. In addition, such Such Tax Indemnitee shall (provided, provided that Owner Borrower shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim, such agreement to be delivered to the Tax Indemnitee and in form and substance reasonably acceptable to it) furnish Owner Borrower with copies of the relevant portions of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Borrower may be required to indemnify hereunder. If requested by Owner Borrower in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the Borrower’s expense of Owner (including, without limitation, including all reasonable costsout-of-pocket costs and expenses, expenses and including reasonable attorneys' ’ and accountants' ’ fees and disbursementsdisbursements incurred in connection with, and reasonably allocable to, the contest of such Tax), in good faith contest (or, if permitted by applicable lawLaw, allow Owner Borrower to contest) through appropriate administrative and judicial proceedings the validity, applicability applicability, or amount of such Taxes by (Ix) resisting payment thereof, (IIy) not paying the same Taxes except under protest if protest is necessary and proper proper, or (IIIz) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or or judicial proceeding. If requested to do so by OwnerBorrower in writing, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent that the Tax Indemnitee is able able, using reasonable efforts, to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, Transactions without (in the good faith judgment of such Tax Indemnitee, ’s good faith judgment) adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner Borrower to control the conduct of any such proceeding and shall provide to Owner Borrower (at Owner's Borrower’s cost and expense) with such information or data that is in such Tax Indemnitee's ’s control or possession that is and reasonably necessary to conduct such contest. In If the case of a contest is being controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner Borrower in good faith regarding the manner of contesting such claim claim, and shall keep Owner Borrower reasonably informed regarding the progress of such contest. If the contest is being controlled by Borrower, Borrower shall consult with the applicable Tax Indemnitee in good faith regarding the manner of contesting such claim, and shall keep such Tax Indemnitee reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 9.3(e) (including, without limitation, including any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the Borrower’s prior written consent of the Owner (except as contemplated by Section 8.3.4(bSections 9.3(e)(2) or (c3)).
Appears in 2 contracts
Samples: Loan Agreement (Airtran Holdings Inc), Loan Agreement (Airtran Holdings Inc)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's ’s rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' ’ and accountants' ’ fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's ’s cost and expense) with such information or data that is in such Tax Indemnitee's ’s control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).. PARTICIPATION AGREEMENT (2012-2) 30
Appears in 2 contracts
Samples: Participation Agreement (Us Airways Inc), Participation Agreement (Us Airways Inc)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner Lessee could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner Lessee could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner Lessee notice in writing of such claim (provided, that failure to so notify Owner Lessee shall not relieve Owner Lessee of its indemnity obligations hereunder unless such failure to notify effectively forecloses OwnerLessee's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner Lessee for 30 days following the receipt of such notice by OwnerLessee; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to OwnerLessee, so inform OwnerLessee, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by OwnerLessee) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner Lessee shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner Lessee with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Lessee may be required to indemnify hereunder. If requested by Owner Lessee in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner Lessee (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner Lessee to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by OwnerLessee, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner Lessee to control the conduct of any such proceeding and shall provide to Owner Lessee (at OwnerLessee's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner Lessee in good faith regarding the manner of contesting such claim and shall keep Owner Lessee reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).Section
Appears in 2 contracts
Samples: Participation Agreement (Continental Airlines Inc /De/), Participation Agreement (Continental Airlines Inc /De/)
Contest. (a) If Lessor receives a written claim is made against a for any Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have Lessee would be required to pay an indemnity obligation hereunderpursuant to Clause 1, such Tax Indemnitee Clause 2 or Clause 3 of this Schedule 11, Lessor shall notify Lessee promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect , provided that any failure to such claim without the prior written consent of Owner for 30 days following the receipt of provide such notice by Owner; providedwill not relieve Lessee of any indemnification obligation pursuant to Clause 1, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest Clause 2 or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than Clause 3 except to the extent necessary in order that Lessee's ability to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to defend such Taxes with respect to which Owner may be required to indemnify hereunderclaim has been materially adversely affected by such failure. If requested by Owner Lessee in writing within 30 days promptly after its receipt of such Lessor's notice, such Tax Indemnitee Lessor shall, upon receipt of indemnity satisfactory to it and at the expense of Owner Lessee (including, without limitation, all reasonable costs, expenses and reasonable attorneys' expenses, legal and accountants' fees and disbursements), and penalties, interest and additions to tax incurred in contesting such claim) in good faith contest or (or, if permitted by applicable law, allow Owner Law) permit Lessee to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of contest such Taxes claim by (Ii) resisting payment thereofthereof if practicable and appropriate, (IIii) not paying the same except under protest if protest is necessary and proper proper, or (IIIiii) if the payment is made, using reasonable efforts to obtain a refund thereof of such Taxes in an appropriate administrative and/or and judicial proceedingproceedings. If requested Lessor shall determine the method of any contest conducted by Lessor and (in good faith consultation with Lessee) control the conduct thereof. Lessee shall determine the method of any contest conducted by Lessee and (in good faith consultation with Lessor) control the conduct thereof. Lessee shall pay in full all payments of Rent and other amounts payable pursuant to do so by Ownerthe Operative Documents, the Tax Indemnitee shall appeal without reduction for or on account of any adverse administrative or judicial decisionTax, except that the Tax Indemnitee while such contest is continuing. Lessor shall not be required to pursue any appeals contest, or to continue to contest, a claim for Taxes under this Clause 7 if (x) such contest would result in a risk of criminal penalties or of a sale, forfeiture or loss of, or the United States Supreme Court. If and imposition of a Lien (other than a Permitted Lien) on (except to the extent the Tax Indemnitee is able covered by a bond reasonably acceptable to separate the contested issue Lessor), or issues from other issues arising in the same administrative (y) Lessee shall not have furnished an opinion of independent tax counsel selected by Lessor and reasonably satisfactory to Lessee, that a reasonable basis exists for such contest, or judicial proceeding that are unrelated (z) a Default or an Event of Default shall be continuing (unless Lessee shall have provided security reasonably satisfactory to Lessor securing Lessee's performance of its obligations under this Schedule 11). If Lessor contests any claim for Taxes by making a payment and seeking a refund thereof, then Lessee shall advance to Lessor, on an interest-free basis, an amount equal to the transactions contemplated Taxes to be paid by Lessor in connection with the Operative Agreements without, in the good faith judgment contest and shall indemnify Lessor on an After-Tax Basis for any adverse tax consequences to Lessor of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control interest-free advance. Upon the conduct final determination of any contest pursuant to this Clause 7 in respect of any Taxes for which Lessee shall have made an advance to Lessor in accordance with the immediately preceding sentence, the amount of Lessee's obligation shall be determined as if such proceeding advance had not been made; any indemnity obligation of Lessee to Lessor under this Schedule 11 and Lessor's obligation to repay the advance will be satisfied first by setoff against each other, and any difference owing by either party shall provide to Owner (at Owner's cost and expense) with be paid within ten days after such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c))final determination.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Vanguard Airlines Inc \De\)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner that Lessee could be liable to pay or indemnify for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination determines that a Tax is due for which Owner and that Lessee could have an indemnity obligation for that Tax hereunder, such Tax Indemnitee shall promptly give Owner notice notify Lessee in writing of such claim (provided, that failure so to so notify Owner Lessee shall not relieve Owner Lessee of its indemnity obligations hereunder unless such the failure to notify effectively forecloses OwnerLessee's rights to require a contest of such claim) ), and shall take no action with respect to such claim without the Lessee's prior written consent of Owner for 30 days following the Lessee's receipt of such notice by Ownernotice; provided, that, in the case of a claim made against a Tax Indemnitee, if applicable Law requires such Tax Indemnitee shall be required by law to take action prior to before the end of such 30-day period, such Tax Indemnitee shall, in such notice to OwnerLessee, so inform OwnerLessee, and such Tax Indemnitee shall take no action for as long as it is legally able to do so avoid taking action (it being understood that and a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to before the end of such 30-day period if (i)(A1)(aa) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by OwnerLessee) and the act of paying the Tax would not materially prejudice the right to contest contest, or (Bbb) the failure to so pay would result in criminal penalties penalties, and (ii2) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, provided that Owner Lessee shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner Lessee with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Lessee may be required to indemnify hereunder. If requested by Owner Lessee in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the Lessee's expense of Owner (including, without limitation, including all reasonable costs, expenses expenses, and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner Lessee to contest) through appropriate administrative and judicial proceedings the validity, applicability applicability, or amount of such Taxes by (Ix) resisting payment thereof, (IIy) not paying the same Taxes except under protest if protest is necessary and proper proper, or (IIIz) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or or judicial proceeding. If requested to do so by OwnerLessee, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent that the Tax Indemnitee is able to separate the contested issue or issues issue(s) from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, Transactions without (in the good faith judgment of such Tax Indemnitee, 's good faith judgment) adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner Lessee to control the conduct of any such proceeding and shall provide to Owner Lessee (at OwnerLessee's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is and reasonably necessary to conduct such contest (other than such Tax Indemnitee's federal income Tax returns) in which case Lessee shall keep such Tax Indemnitee reasonably informed concerning the progress of such contest. In If the case of a contest is being controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner Lessee in good faith regarding the manner of contesting such claim and shall keep Owner Lessee reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 ss. 9.3.4 (including, without limitation, including any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the Lessee's prior written consent of the Owner (except as contemplated by Section 8.3.4(bss. 9.3.4(b) or (c)).
Appears in 1 contract
Samples: Participation Agreement (Amtran Inc)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's ’s rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' ’ and accountants' ’ fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's ’s cost and expense) with such information or data that is in such Tax Indemnitee's ’s control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or and shall not settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's ’s rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' ’ and accountants' ’ fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to the Owner (at Owner's ’s cost and expense) with such information or data that is in such Tax Indemnitee's ’s control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Contest. Lessee shall pay on or before the time or times prescribed by law any Impositions (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice except any Impositions excluded by OwnerSection 8.1); provided, thathowever, that Lessee shall be under no obligation to pay any such Imposition so long as the payment of such Imposition is not delinquent or is being contested by a Permitted Contest. If any claim or claims is or are made against any Indemnitee for any Imposition which is subject to indemnification as provided in Section 8.1, Indemnitee shall as soon as practicable notify Lessee and if, in the case reasonable opinion of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior tax counsel acceptable to the end Indemnitee there exists a reasonable basis to contest such Imposition and if the provisos of such 30-day period, such Tax Indemnitee shall, in such notice the definition of "Permitted Contest" continue to Owner, be satisfied and so inform Ownerlong as no Event of Default exists and no income tax or unindemnified claim is also involved, and the Lessee admits in writing its duty to indemnify for such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In additionclaim, such Tax Indemnitee shall (providedLessee at its expense may, that Owner shall have agreed to keep such information confidential other than to the extent necessary permitted by applicable law to pursue such claim in order to its own name, contest such imposition, and subsequently may appeal any adverse determination, in the claim) furnish Owner with copies appropriate administrative and legal forums. If the above described conditions are satisfied but the claim involves income tax or an unindemnified claim or must be pursued in the name of any requests for information from any Taxing Authority relating the Indemnitee, and the amount at issue exceeds $100,000, then upon the request of Lessee to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such noticeIndemnitee, such Tax Indemnitee shallthe Indemnitee, at Lessee's expense, shall contest any such Imposition through applicable administrative forums. Lessee shall pay all expenses incurred by the expense of Owner (Indemnitee in contesting any such Imposition including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements)fees, in good faith contest (orincluding the allocated costs of internal counsel, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated upon demand by the Operative Agreements without, in Indemnitee. Lessee shall have the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner right to control consult with respect to the conduct of any proceedings controlled by the Indemnitee but such proceeding and consultation shall provide to Owner (at Owner's cost and expense) not interfere with such information or data that is in such Tax the Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Lessee shall in all events be kept informed, to the extent practicable, of material developments relative to such proceedings. The Indemnitee shall have the right to participate in the conduct of any proceedings controlled by Lessee and the Indemnitee shall in all events be kept informed, to the extent practicable, of material developments relative to such proceedings. The Indemnitees agree that a contested claim for which Lessee would be required to make a reimbursement payment hereunder will not fail be settled or compromised without Lessee's prior written consent (which consent shall neither be unreasonably delayed nor withheld other than in good faith), unless the provisos of the definition of "Permitted Contest" would not continue to take be satisfied, an Event of Default occurs or the Indemnitee waives its right to indemnification with respect thereto. The failure of an Indemnitee to timely contest a claim against it for any action expressly Imposition which is subject to indemnification under Section 8.1 and for which it has an obligation to Lessee to contest under this Section 8.2 in the manner required by this applicable law or regulations where Lessee has timely requested that such Indemnitee contest such claim shall relieve Lessee of their obligations to such Indemnitee under Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination 8.1 with respect to such claim only to the extent such failure precludes contest. If applicable law requires the payment of a contested Imposition as a condition to, or regardless of, its being contested, and Lessee chooses to contest such Imposition or to direct the Indemnitee to contest such Imposition in accordance with this Section, then Lessee shall provide the Indemnitee with the funds to pay such Imposition, such provision of funds to be deemed a non-interest bearing loan by Lessee to the Indemnitee to be repaid by any claimrecovery of such Imposition from such contest and any remaining unpaid amount not recovered to offset Lessee's obligation to indemnify the Indemnitee for such Imposition. In the event that the Indemnitee receives a refund (or like adjustment) in respect of any Imposition for which the Indemnitee has been reimbursed by Lessee, the Indemnitee shall immediately remit the amount of such refund (or settle or compromise any claim without the prior written consent like adjustment) to Lessee, net of the Owner (except as contemplated all costs and expenses incurred by Section 8.3.4(b) or (c))such Indemnitee.
Appears in 1 contract
Contest. (a) If any Tax Indemnitee receives a written claim is made against for any Tax for which a Tax Indemnitee for Taxes with respect would be required to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have pay an indemnity obligation hereunderpursuant to Section 5.7, such Tax Indemnitee shall notify Lessee promptly give Owner notice in writing of such claim (providedclaim, provided that any failure to so notify Owner shall provide such notice will not relieve Owner Lessee of its indemnity obligations hereunder any indemnification obligation pursuant to Section 5.7 unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without precludes the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right ability to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunderTax. If timely requested by Owner Lessee in writing within 30 days after its receipt of such noticewriting, such Tax Indemnitee shall, at the expense of Owner Lessee (including, without limitation, all reasonable costs, expenses and reasonable attorneys' expenses, legal and accountants' fees and disbursements), and penalties, interest and additions to tax incurred in contesting such claim) in good faith contest or (or, if permitted by applicable law, allow Owner Law) permit Lessee to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of contest such Taxes claim by (Ii) resisting payment thereofthereof if practicable and appropriate, (IIii) not paying the same except under protest if protest is necessary and proper proper, or (IIIiii) if the payment is made, using reasonable efforts to obtain a refund thereof of such Taxes in an appropriate administrative and/or and judicial proceedingproceedings. If requested to do so The Tax Indemnitee shall determine the method of any contest conducted by Owner, the Tax Indemnitee except for any contest involving only taxes (other than income taxes) of the Tax Indemnitee for which the Tax Indemnitee is indemnified under this Agreement ("Severable Taxes") and (in good faith consultation with Lessee) control the conduct thereof. Lessee shall appeal determine the method of any adverse administrative contest conducted by Lessee and any contest involving Severable Taxes and (in good faith consultation with the Tax Indemnitee) control the conduct thereof. Lessee shall pay in full all payments of Rent and other amounts payable pursuant to the Lease, without reduction for or judicial decisionon account of any Tax (other than Lessor Taxes described in Section 5.8), except that the while such contest is continuing. A Tax Indemnitee shall not be required to pursue any appeals contest, or to the United States Supreme Court. If and continue to the extent contest, a claim for Taxes under this Section 5.9 if (w) Lessee shall have failed, upon request of the Tax Indemnitee is able Indemnitee, to separate acknowledge its liability for such claims, or (x) such contest would result in a risk of criminal penalties or a material risk of a sale, forfeiture or loss of (including loss of use), or the contested issue imposition of a Lien (other than a Permitted Lien) on, the Engine (unless the Lessee posts a bond or issues from other issues arising security reasonably acceptable in the same administrative or judicial proceeding that are unrelated form and substance to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee), adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner or (at Owner's cost and expensey) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled other than a contest of Severable Taxes, Lessee shall not have furnished an opinion of independent tax counsel selected by Tax Indemnitee and reasonably satisfactory to Lessee, that a reasonable basis exists for such contest, or (z) in the case of a contest other than a contest of Severable Taxes, a Default shall be continuing (unless Lessee shall have provided security reasonably satisfactory to Lessor securing Lessee's performance of its obligations under this Section 5.9). If a Tax Indemnitee contests any claim for Taxes by making a payment and seeking a refund thereof, then Lessee shall advance to the Tax Indemnitee, such on an interest-free basis, an amount equal to the Taxes to be paid by Tax Indemnitee shall consult in connection with Owner in good faith regarding the manner of contesting such claim contest and shall keep Owner reasonably informed regarding the progress indemnify Lessor on an After-Tax Basis for any adverse tax consequences to Tax Indemnitee of such contestinterest-free advance. A Upon the final determination of any contest pursuant to this Section 5.9 in respect of any Taxes for which Lessee shall have made an advance to Lessor in accordance with the immediately preceding sentence, the amount of Lessee's obligation shall be determined as if such advance had not been made; any indemnity obligation of Lessee to Tax Indemnitee shall not fail to take any action expressly required by under this Section 8.3.4 (including5.9 and Tax Indemnitee's obligation to repay the advance will be satisfied first by setoff against each other, without limitation, and any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated difference owing by Section 8.3.4(b) or (c))either party shall be paid within ten days after such final determination.
Appears in 1 contract
Samples: Common Terms Agreement (Republic Airways Holdings Inc)
Contest. (a) If a Lessor will give Lessee written notice if any claim is made against a any Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a any Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial subject to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunderindemnification under Clause 9.1. If requested by Owner Lessee so requests in writing within 30 days after its receipt of such notice, such the relevant Tax Indemnitee shallshall permit Lessee to contest the claim in the name of the Tax Indemnitee or in the name of Lessee, to the extent permitted by law. However, if such claim, whether alone or together with other claims which could be made with respect to other transactions to which the Tax Indemnitee is then a party could (if sustained) have an adverse effect on the Tax Indemnitee’s business or financial affairs (a “Special Claim”), or if Lessee shall not be permitted by law to contest a claim (other than a Special Claim) on behalf of the Tax Indemnitee, then the Tax Indemnitee shall contest such claim in good faith. Notwithstanding the foregoing, no claim shall be contested unless and until: (a) the Tax Indemnitee shall have received (i) an indemnity reasonably satisfactory to it for all expenses reasonably expected to be paid in contesting the claim (including attorneys’ and accountants’ fees and disbursements) and (ii) written acknowledgement by Lessee of its liability hereunder (if such contest is decided adversely) in respect of such Taxes; (b) the action to be taken will not involve any material risk of the sale, forfeiture, seizure or loss of, or the creation of any Lien (except a Lien which Lessee shall have provided security in an amount and manner reasonably satisfactory to Lessor) on, the Aircraft or any part thereof or any interest therein; (c) if such contest shall be conducted in a manner requiring the payment of the claim, Lessee shall have advanced the amount required on an interest-free after-tax basis; (d) no Event of Default shall have occurred and be continuing and Lessor shall be receiving all amounts of Rent when due, without reduction by reason of any Taxes; and (e) if such claim is a Special Claim, the relevant Tax Indemnitee shall have received a legal opinion (at the expense of Owner (including, without limitation, all Lessee) from counsel satisfactory to the Tax Indemnitee indicating that a reasonable costs, expenses basis for such contest exists. The relevant Tax Indemnitee and reasonable attorneys' and accountants' fees and disbursements), Lessee shall in good faith contest (orconsider the other party’s views regarding the conduct of the contest. The relevant Tax Indemnitee and Lessee shall provide to each other, upon request, such reasonably obtainable information and such other reasonable assistance as may be necessary or advisable for the effective evaluation or conduct of such contest. Notwithstanding the foregoing provisions of this Clause 9.4, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the at any time any Tax Indemnitee shall appeal any adverse administrative waives its right of indemnification under this Clause 9 in respect of a claim, or judicial decisionif, except that the Tax Indemnitee shall not be required after having received payment of indemnification from Lessee hereunder in respect to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemniteeclaim, such Tax Indemnitee tenders such payment to Lessee, then Lessee shall permit Owner not be entitled to control the conduct of contest, or to continue to contest, any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contestclaim. In the case of a contest controlled by a Tax Indemnitee, such Each Tax Indemnitee shall consult with Owner (a) act in good faith regarding the manner of contesting when settling any claim for any Tax that is subject to indemnification under Clause 9.1, and (b) not settle any such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination first consulting with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c))Lessee.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Controladora Vuela Compania De Aviacion, S.A.B. De C.V.)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's ’s rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' ’ and accountants' ’ fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) PARTICIPATION AGREEMENT 2020-1 PAGE 29 resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's ’s cost and expense) with such information or data that is in such Tax Indemnitee's ’s control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner Lessee could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner Lessee could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner Lessee notice in writing of such claim (provided, that failure to so notify Owner Lessee shall not relieve Owner Lessee of its indemnity obligations hereunder unless such failure to notify effectively forecloses OwnerLessee's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner Lessee for 30 days following the receipt of such notice by OwnerLessee; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to OwnerLessee, so inform OwnerLessee, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sue for a refund refxxx prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by OwnerLessee) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner Lessee shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner Lessee with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Lessee may be required to indemnify hereunder. If requested by Owner Lessee in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner Lessee (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner Lessee to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by OwnerLessee, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner Lessee to control the conduct of any such proceeding and shall provide to Owner Lessee (at OwnerLessee's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner Lessee in good faith regarding the manner of contesting such claim and shall keep Owner Lessee reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 9.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner Lessee (except as contemplated by Section 8.3.4(b9.3.4(b) or (c)).
Appears in 1 contract
Samples: Participation Agreement (Continental Airlines Inc /De/)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sue for a refund rxxxnd prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Samples: Participation Agreement (Continental Airlines Inc /De/)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's ’s rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being BACK understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' ’ and accountants' ’ fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's ’s cost and expense) with such information or data that is in such Tax Indemnitee's ’s control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse BACK determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Samples: Participation Agreement (Continental Airlines Inc /De/)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall BACK promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment BACK of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Samples: Participation Agreement (Continental Airlines Inc /De/)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner that Lessee could be liable to pay or indemnify for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination determines that a Tax is due for which Owner and that Lessee could have an indemnity obligation for that Tax hereunder, such Tax Indemnitee shall promptly give Owner notice notify Lessee in writing of such claim (provided, that failure so to so notify Owner Lessee shall not relieve Owner Lessee of its indemnity obligations hereunder unless such the failure to notify effectively forecloses OwnerLessee's rights to require a contest of such claim) ), and shall take no action with respect to such claim without the Lessee's prior written consent of Owner for 30 days following the Lessee's receipt of such notice by Ownernotice; provided, that, in the case of a claim made against a Tax Indemnitee, if applicable Law requires such Tax Indemnitee shall be required by law to take action prior to before the end of such 30-day period, such Tax Indemnitee shall, in such notice to OwnerLessee, so inform OwnerLessee, and such Tax Indemnitee shall take no action for as long as it is legally able to do so avoid taking action (it being understood that and a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to before the end of such 30-day period if (i)(A1)(aa) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by OwnerLessee) and the act of paying the Tax would not materially prejudice the right to contest contest, or (Bbb) the failure to so pay would result in criminal penalties penalties, and (ii2) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, provided that Owner Lessee shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner Lessee with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Lessee may be required to indemnify hereunder. If requested by Owner Lessee in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the Lessee's expense of Owner (including, without limitation, including all reasonable costs, expenses expenses, and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner Lessee to contest) through appropriate administrative and judicial proceedings the validity, applicability applicability, or amount of such Taxes by (Ix) resisting payment thereof, (IIy) not paying the same Taxes except under protest if protest is necessary and proper proper, or (IIIz) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or or judicial proceeding. If requested to do so by OwnerLessee, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent that the Tax Indemnitee is able to separate the contested issue or issues issue(s) from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, Transactions without (in the good faith judgment of such Tax Indemnitee, 's good faith judgment) adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner Lessee to control the conduct of any such proceeding and shall provide to Owner Lessee (at OwnerLessee's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is and reasonably necessary to conduct such contest. In If the case of a contest is being controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner Lessee in good faith regarding the manner of contesting such claim and shall keep Owner Lessee reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, S) 9.3.4 (including any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the Lessee's prior written consent of the Owner (except as contemplated by Section 8.3.4(b(S) 9.3.4(b) or (c)).
Appears in 1 contract
Contest. If any claim shall be made against any Tax Indemnitee or if any proceeding shall be commenced against any Tax Indemnitee (a) If including a written claim is made against a notice of such proceeding) for any Tax Indemnitee for Taxes with respect as to which Owner could be liable for payment or the Lessee may have an indemnity hereunderobligation, or if a any Tax Indemnitee makes a determination shall determine that a any Tax is due for as to which Owner could the Lessee may have an indemnity obligation hereundermay be payable, such Tax Indemnitee shall promptly give Owner notice notify the Lessee in writing of such claim (provided, that failure to so notify Owner and shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no any action with respect to such claim claim, proceeding or Tax without the prior written consent of Owner the Lessee for 30 thirty (30) days following the after receipt of such notice by Ownerthe Lessee unless the failure to take action could result in the imposition of penalties or fines or material danger of sale, forfeiture or loss of, or the creation of any Lien on, the Platform or the Property or any portion thereof or interest therein; provided, thathowever, in that any failure to provide such notice shall not relieve the case Lessee of any obligation to indemnify any Tax Indemnitee hereunder unless the Lessee is materially adversely affected as a claim made against a result of such failure and such failure arises out of or is caused by the misconduct or negligence (excluding imputed negligence) of such Tax Indemnitee; provided, further, however, that if such Tax Indemnitee shall be required by law or regulation to take action with respect to any such claim, proceeding or Tax prior to the end of such thirty (30-) day period, period such Tax Indemnitee shall, in such notice to Ownerthe Lessee, so inform Owner, the Lessee and such Tax Indemnitee shall not take no any action for as long as it is legally able with respect to do so (it being understood that a such claim, proceeding or Tax without the consent of the Lessee before the date on which such Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereundertake action. If requested by Owner in writing If, within 30 thirty (30) days after its receipt of such noticenotice (or such shorter period referred to in the preceding sentence), the Lessee shall request in writing that such Tax Indemnitee contest the imposition of such Tax, the Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements)the Lessee, in good faith contest (orincluding by pursuit of appeals, excluding any requirement to appeal to the U.S. Supreme Court), and shall not settle without the Lessee's consent, or if such contest can be pursued independently from any other proceeding involving a Tax liability of such Participation Agreement Tax Indemnitee (a "LESSEE-CONTROLLED CONTEST"), the Tax Indemnitee shall allow the Lessee to contest (in its own name, if permitted by applicable law, allow Owner law to contestdo so) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Tax (other than U.S. withholding or net income Taxes by (Iindemnifiable hereunder) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements withoutby, in the good faith judgment sole discretion of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct Person conducting such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).:
Appears in 1 contract
Samples: Participation Agreement (Cal Dive International Inc)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all BACK reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Contest. If any claim shall be made against any Tax Indemnitee or if any proceeding shall be commenced against any Tax Indemnitee (a) If including a written claim is made against a notice of such proceeding) for any Tax Indemnitee for Taxes with respect as to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could the Lessee may have an indemnity obligation hereunder, or if any Tax Indemnitee shall determine that any Tax as to which the Lessee may have an indemnity obligation hereunder may be payable, such Tax Indemnitee shall promptly give Owner notice notify the Lessee in writing of such claim (provided, that failure to so notify Owner and shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no any action with respect to such claim claim, proceeding or Tax without the prior written consent of Owner the Lessee for 30 thirty (30) days following the after receipt of such notice by Ownerthe Lessee unless the failure to take action could result in the imposition of penalties or fines or material danger of sale, forfeiture or loss of, or the creation of any Lien on, the Sites or any portion thereof or interest therein; provided, thathowever, in that any failure to provide such notice shall not relieve the case Lessee of any obligation to indemnify any Tax Indemnitee hereunder unless the contest is precluded as a claim made against a result of such failure and such failure arises out of or is caused by the misconduct or negligence (excluding imputed negligence) of such Tax Indemnitee; provided, further, however, that if such Tax Indemnitee shall be required by law or regulation to take action with respect to any such claim, proceeding or Tax prior to the end of such thirty (30-) day period, period such Tax Indemnitee shall, in such notice to Ownerthe Lessee, so inform Owner, the Lessee and such Tax Indemnitee shall not take no any action for as long as it is legally able with respect to do so (it being understood that a such claim, proceeding or Tax without Participation Agreement 57 the consent of the Lessee before the date on which such Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereundertake action. If requested by Owner in writing If, within 30 thirty (30) days after its receipt of such noticenotice (or such shorter period referred to in the preceding sentence), the Lessee shall request in writing that such Tax Indemnitee contest the imposition of such Tax, the Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements)the Lessee, in good faith contest (orincluding by pursuit of appeals, excluding any requirement to appeal to the U.S. Supreme Court), and shall not settle without the Lessee's consent (such consent not to be unreasonably withheld), or if permitted by applicable lawsuch contest can be pursued independently from any other proceeding involving a Tax liability of such Tax Indemnitee (a "Lessee-Controlled Contest"), the Tax Indemnitee shall allow Owner the Lessee to contest) through appropriate administrative and judicial proceedings contest the validity, applicability or amount of such Tax (other than withholding or net income Taxes by (Iindemnifiable hereunder) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements withoutby, in the good faith judgment sole discretion of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct Person conducting such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).:
Appears in 1 contract
Contest. (a) If a written claim is shall be made against a Tax any ------- Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a any Tax Indemnitee makes a determination that a Tax is due in excess of $10,000 for which Owner could have an indemnity obligation hereunderLessees would be obligated to indemnify pursuant to this Article VII, such Tax Indemnitee shall promptly give Owner notice notify ----------- Lessees after such Indemnitee becomes aware of such action and in writing any event within 30 days after receipt by such Indemnitee of a written claim (but failure to notify Lessees within such 30-day period shall not impair such Indemnitee's right to indemnification under this Article VII except to the extent that ----------- Lessees' rights to contest such claim shall have been materially impaired by such failure) and shall, to the extent permitted by applicable law, not pay the claim before the earlier of (i) 30 days after giving Lessees notice, and (ii) receipt of Lessees' response. If either Lessee shall so request within 30 days after receipt of such notice, such Indemnitee shall, at Lessees' expense reimbursed to such Indemnitee on an After-Tax Basis, contest the imposition, validity or applicability of such Tax. The ultimate control over the conduct of such contest (including the right to forego any and all administrative appeals, proceedings, hearings and conferences in respect of such claim and the right to select the forum for such contest and determine whether any such contest shall be by (i) resisting payment of such Tax, (ii) paying such Tax under protest or (iii) paying such Tax and seeking a refund thereof) shall remain with such Indemnitee; provided, however, that failure such Indemnitee shall keep Lessees or their -------- ------- counsel reasonably informed as to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require the progress thereof, consult with Lessees within a contest of such claim) and shall take no reasonable period before any significant action with respect thereto is taken or omitted and consider in good faith any suggestions made by Lessees or their counsel; provided, further, -------- ------- that, for so long as there shall not have been a Bankruptcy Default nor shall Owner Participant have exercised any of its remedies pursuant to Section 16 of the Lease, no such claim proceedings or litigation shall be settled or otherwise compromised without the prior written consent of Owner for 30 days following Lessees. If such Indemnitee so elects, such contest shall be conducted by Lessees in the receipt name of such notice by Owner; provided, that, Indemnitee (subject to the preceding proviso) and in the case of a claim made against a Tax Indemnitee, if no event shall such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall or Lessees be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right permitted to contest or to continue to contest, as the case may be, the imposition of any Tax for which Lessees are obligated to indemnify pursuant to this Article VII unless (BA) the failure Lessees shall ----------- have agreed to pay such Indemnitee on demand and shall have paid as so pay would result in criminal penalties demanded all reasonable costs and (ii) expenses that such Tax Indemnitee shall take any action so required may incur in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, contesting such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner claim (including, without limitation, all reasonable costs, expenses expenses, losses, reasonable legal and reasonable attorneys' and accountants' accounting fees and disbursements), ) on an After-Tax Basis; (B) such Indemnitee shall have determined in good faith that the action to be taken will not result in any material danger of sale, forfeiture or loss of any Transponder or any part thereof or any interest therein (except if Lessees shall have made provision to protect the interests of such Indemnitee in a manner satisfactory to such Indemnitee); and (C) if such contest (orshall be conducted in a manner requiring the payment of the claim, if permitted by applicable law, allow Owner Lessees shall have advanced on an interest-free basis an amount equal to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax claim which such Indemnitee shall appeal have elected to pay and Lessees shall have indemnified the Indemnitee in a manner satisfactory to the Indemnitee, for any adverse administrative tax consequences from the receipt, or judicial decisioninterest-free nature, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemniteeadvance. If, adversely affecting following a Lessee's exercise of its contest rights pursuant to Section 7.04 hereof, there is a final determination adverse to Indemnitee and ------------ Lessees and an Indemnitee dispute such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at OwnerLessee's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination indemnity obligations hereunder with respect to any claim) such final determination, all fees and expenses incurred during such lawsuit by the prevailing party will be paid or settle or compromise any claim without reimbursed, on an After-Tax Basis, by the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c))losing party.
Appears in 1 contract
Samples: Participation Agreement (Magellan International Inc)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and sue xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee 42 -38- shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Contest. Borrower shall be entitled, at its expense, to require the ------- imposition of any Tax for which it is obligated to indemnify hereunder to be contested, and (aafter notice to the pertinent Indemnitee) to withhold payment of any Tax not theretofore paid by an Indemnitee, during pendency of such contest unless prior payment is a condition to such contest. At an Indemnitee's election, such contest shall be conducted by Borrower in Borrower's name, but only if Borrower is permitted as a matter of law so to contest such Tax. If a written any claim is made against a Tax or any proceeding is commenced against: any Indemnitee for Taxes with respect any Tax as to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have Borrower has an indemnity obligation hereunderpursuant to this Section 9.02, such Tax Indemnitee shall promptly give Owner notice in writing notify Borrower of any such claim (providedor proceeding, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) but the failure to so pay the Tax would result in substantial penalties provide such notice shall not release Borrower from its indemnity obligation hereunder (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than except to the extent necessary that Borrower's contest of that claim is precluded by such failure). If an Indemnitee is requested by Borrower in order writing to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such noticean indemnifiable Tax, so long as no Financial Default exists, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), shall in good faith faith, with due diligence, and at Borrower's expense, contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability applicability, or amount of such Taxes by Tax by, in such Indemnitee's sole discretion (Ibut after consulting with Borrower), (a) resisting payment thereof, (IIb) not paying the same except under protest protest, if protest is necessary and proper proper, or (IIIc) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or and judicial proceeding. If requested to do so by Ownerproceedings; provided, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue take any appeals action pursuant to this sentence unless and until (aa) Borrower provides to that Indemnitee a written acknowledgment that Borrower is liable to indemnify such Indemnitee for the United States Supreme Court. If and contested Taxes to the extent that the Tax Indemnitee contest is able unsuccessful; (bb) Borrower provides to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated Indemnitee, upon request, an opinion of tax counsel, selected by Borrower and reasonably satisfactory to such Indemnitee, to the transactions contemplated by effect that such contest has a reasonable possibility of success under applicable law and the Operative Agreements withoutstandards of ABA Formal Opinion 85-352 (and, in the good faith judgment case of any appeal, that there is "substantial authority" (within the meaning of Code Section 6662) for such appeal: ; and (cc) Borrower shall have agreed to pay (and shall actually pay) on demand to such Indemnitee all reasonable costs and expenses (including reasonable attorneys, fees) that such Indemnitee may incur in contesting such claim. If any such contest involves payment of the Tax in question, Borrower shall either (x) make such payment directly to the appropriate authority, or (y) furnish to such Indemnitee sufficient funds (on an interest-free basis) to make such payment, and indemnify such Indemnitee, adversely affecting in a manner satisfactory to such Tax Indemnitee, against any adverse tax consequence resulting from such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contestinterest-free advance. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax An Indemnitee shall not fail to take settle any action expressly contest required by this Section 8.3.4 9.02 without Borrower's prior written consent, unless (including1) that Indemnitee foregoes its right to be indemnified for the Tax being contested, without limitation, or (2) Borrower unreasonably withholds or delays such consent. If any action regarding any appeal of an adverse determination with respect Indemnitee obtains a refund attributable to any claimTax paid or indemnified by Borrower, such Indemnitee shall (if no Financial Default exists) pay to Borrower an amount equal to the amount of such refund, plus any interest received or settle credited and attributable thereto, plus any net tax benefit (and minus any net tax detriment) realized (or compromise sustained) by such Indemnitee as a result of any claim without the prior written consent of the Owner (except as contemplated refund received and payment by Section 8.3.4(b) such Indemnitee made pursuant to this sentence. Such amount shall be payable not later than 30 days after such refund or (c))interest is received.
Appears in 1 contract
Samples: Loan Agreement (Tower Air Inc)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner that Lessee could be liable to pay or indemnify for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination determines that a Tax is due for which Owner and that Lessee could have an indemnity obligation for that Tax hereunder, such Tax Indemnitee shall promptly give Owner notice notify Lessee in writing of such claim (providedPROVIDED, that failure so to so notify Owner Lessee shall not relieve Owner Lessee of its indemnity obligations hereunder unless such the failure to notify effectively forecloses OwnerLessee's rights to require a contest of such claim) ), and shall take no action with respect to such claim without the Lessee's prior written consent of Owner for 30 days following the Lessee's receipt of such notice by Ownernotice; providedPROVIDED, that, in the case of a claim made against a Tax Indemnitee, if applicable Law requires such Tax Indemnitee shall be required by law to take action prior to before the end of such 30-day period, such Tax Indemnitee shall, in such notice to OwnerLessee, so inform OwnerLessee, and such Tax Indemnitee shall take no action for as long as it is legally able to do so avoid taking action (it being understood that and a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to before the end of such 30-day period if (i)(A1)(aa) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by OwnerLessee) and the act of paying the Tax would not materially prejudice the right to contest contest, or (Bbb) the failure to so pay would result in criminal penalties penalties, and (ii2) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, provided that Owner Lessee shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner Lessee with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Lessee may be required to indemnify hereunder. If requested by Owner Lessee in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the Lessee's expense of Owner (including, without limitation, including all reasonable costs, expenses expenses, and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner Lessee to contest) through appropriate administrative and judicial proceedings the validity, applicability applicability, or amount of such Taxes by (Ix) resisting payment thereof, (IIy) not paying the same Taxes except under protest if protest is necessary and proper proper, or (IIIz) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or or judicial proceeding. If requested to do so by OwnerLessee, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent that the Tax Indemnitee is able to separate the contested issue or issues issue(s) from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, Transactions without (in the good faith judgment of such Tax Indemnitee, 's good faith judgment) adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner Lessee to control the conduct of any such proceeding and shall provide to Owner Lessee (at OwnerLessee's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is and reasonably necessary to conduct such contest (other than such Tax Indemnitee's federal income Tax returns) in which case Lessee shall keep such Tax Indemnitee reasonably informed concerning the progress of such contest. In If the case of a contest is being controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner Lessee in good faith regarding the manner of contesting such claim and shall keep Owner Lessee reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 ss. 9.3.4 (including, without limitation, any including anY action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the Lessee's prior written consent of the Owner (except as contemplated by Section 8.3.4(bss. 9.3.4(b) or (c)).
Appears in 1 contract
Samples: Participation Agreement (Amtran Inc)
Contest. (aA) If In the event a written claim is shall be made against by the Internal Revenue Service which, if successful, would result in a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due loss for which Owner could Lessee would have an indemnity obligation hereunderliability to Lessor pursuant to this Article 21 of the Lease, Lessor hereby agrees to take such Tax Indemnitee action, in good faith, in connection with contesting such claim as the Lessee shall promptly give Owner reasonably request in writing, provided, that: (i) within thirty (30) days after notice in writing by Lessor to the Lessee of such claim the Lessee shall have requested that such claim be contested; (providedii) Lessor at its sole option, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) may forego any and shall take no action all administrative appeals, proceedings, hearings and conferences with the relevant taxing authority in respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; providedand may, thatat its sole option, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to either pay the Tax tax claimed and xxx for a refund prior in the appropriate forum selected by Lessor or contest such claim in the appropriate forum selected by Lessor; (iii) within thirty (30) days after notice by Lessor to Lessee of such claim, the Lessee shall have furnished Lessor with an opinion of independent tax counsel chosen by the Lessee and acceptable to Lessor, both as to counsel and substance, to the end of effect that Lessor is more likely than not to prevail in contesting such 30-day period if claim; and (i)(Aiv) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee Lessee shall take any action so required in connection with so paying the Tax have indemnified Lessor in a manner that is satisfactory to Lessor for any cost, expenses or liability, which Lessor may incur as a result of contesting such claim, and the least prejudicial Lessee shall agree to the pursuit of the contest). In additionreimburse Lessor on demand, such Tax Indemnitee shall (providedfor all costs, that Owner shall have agreed to keep such information confidential other than to the extent necessary expenses and liability which Lessor may incur in order to contest contesting the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating , and to such Taxes with respect to pay all reasonable costs and expenses which Owner Lessor may be required to indemnify hereunderincur in contesting the claim. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (includingThese costs and expenses shall include, without limitation, all reasonable costs, expenses and (a) reasonable attorneys' and accountants' fees and disbursements), in good faith contest and (orb) the amount of any interest, if permitted by applicable lawpenalties or additions to tax indemnified hereunder that may ultimately be payable as a result of contesting such claim. In the event that at any time Lessor shall pay the tax claimed and then seek a refund, allow Owner the Lessee shall pay to contestLessor (as a "prior payment") through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes tax and interest, additions to tax and penalties thereon, if any, but not in excess of the amount which the Lessee would be obligated to pay in respect of the related Loss under this Article of the Lease. Upon Final Determination of the liabilities of Lessor, or the receipt of a refund by Lessor, Lessor shall offset the amount of such prior payment against the full amount due, if any, pursuant to the provisions of this Article and either (Ii) resisting payment the Lessee shall pay to Lessor within 15 days after notice thereof, (II) not paying the same except under protest any excess of such full amount due, if protest is necessary and proper any, over such prior payment, or (IIIii) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee Lessor shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals repay to the United States Supreme CourtLessee within 15 days after the late of a receipt of such refund or notice of such Final Determination, any excess of such prior payment over such full amount due. If and Any interest received by Lessor in connection with any refund which is allocable to the extent indemnified taxes paid by Lessor in respect of which the Tax Indemnitee is able to separate Lessee had made a prior payment shall be for the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent account of the Owner (except as contemplated by Section 8.3.4(b) or (c))Lessee.
Appears in 1 contract
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sue for a refund prior to the end of such 30-day period if (i)(A) the failure xxilure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations PARTICIPATION AGREEMENT 2013-1 BACK hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation Note Purchase Agreement hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's ’s rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' ’ and accountants' ’ fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other PARTICIPATION AGREEMENT (2010-1) issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's ’s cost and expense) with such information or data that is in such Tax Indemnitee's ’s control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner Lessee could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner Lessee could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner Lessee notice in writing of such claim (provided, that failure to so notify Owner Lessee shall not relieve Owner Lessee of its indemnity obligations hereunder unless such failure to notify effectively forecloses OwnerLessee's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner Lessee for 30 days following the receipt of such notice by OwnerLessee; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to OwnerLessee, so inform OwnerLessee, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sue for a refund rxxxnd prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by OwnerLessee) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner Lessee shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner Lessee with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Lessee may be required to indemnify hereunder. If requested by Owner Lessee in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner Lessee (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner Lessee to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by OwnerLessee, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner Lessee to control the conduct of any such proceeding and shall provide to Owner Lessee (at OwnerLessee's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner Lessee in good faith regarding the manner of contesting such claim and shall keep Owner Lessee reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 9.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner Lessee (except as contemplated by Section 8.3.4(b9.3.4(b) or (c)).
Appears in 1 contract
Samples: Participation Agreement (Continental Airlines Inc /De/)
Contest. If any claim or proposed claim or proposed assessment shall be made in writing against any Tax Indemnitee or if any proceeding shall be commenced against any Tax Indemnitee (a) If including a written claim is made against a notice of such proceeding) for any Tax Indemnitee for Taxes with respect as to which Owner could be liable for payment or the Lessee may have an indemnity hereunderobligation, or if a any Tax Indemnitee makes a determination shall determine that a any Tax is due for as to which Owner could the Lessee may have an indemnity obligation hereundermay be payable, such Tax Indemnitee shall promptly give Owner notice (and in any event, within the earlier of fifteen (15) Business Days of the Tax Indemnitee's receipt of any claim or proposed claim or two (2) days before payment is due) notify the Lessee in writing of such claim (provided, that failure to so notify Owner and shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no any action with respect to such claim claim, proceeding or Tax without the prior written consent of Owner the Lessee for 30 thirty (30) days following the after receipt of such notice by Ownerthe Lessee unless the failure to take action could result in the imposition of penalties or fines or material danger of sale, forfeiture or loss; provided, thathowever, in that any failure to provide such notice shall not relieve the case Lessee of any obligation to indemnify any Tax Indemnitee hereunder unless the Lessee is materially adversely affected as a claim made against a Tax Indemniteeresult of such failure; provided, further, however, that if such Tax Indemnitee shall be required by law or regulation to take action with respect to any such claim, proceeding or Tax prior to the end of such thirty (30-) day period, period such Tax Indemnitee shall, in such notice to Ownerthe Lessee, so inform Owner, the Lessee and such Tax Indemnitee shall not take no any action for as long as it is legally able with respect to do so (it being understood that a such claim, proceeding or Tax without the consent of the Lessee before the date on which such Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereundertake action. If requested by Owner in writing If, within 30 thirty (30) days after its receipt of such noticenotice (or such shorter period referred to in the preceding sentence), the Lessee shall request in writing that such Tax Indemnitee contest the imposition of such Tax, the Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements)the Lessee, in good faith contest (orincluding by pursuit of appeals, excluding any requirement to appeal to the U.S. Supreme Court), and shall not settle without the Lessee's consent, or if permitted by applicable lawsuch contest can be pursued independently from any other proceeding involving a Tax liability of such Tax Indemnitee (a "LESSEE-CONTROLLED CONTEST"), the Tax Indemnitee shall allow Owner the Lessee to contest) through appropriate administrative and judicial proceedings contest the validity, applicability or amount of such Tax (other than withholding or net income Taxes by (Iindemnifiable hereunder) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements withoutby, in the good faith judgment sole discretion of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct Person conducting such contest. In , taking into account the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent recommendations of the Owner (except as contemplated by Section 8.3.4(b) or (c)).other party:
Appears in 1 contract
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and sue xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or PAGE 41 45 (Bb) Notwithstanding the failure to so pay would result foregoing, in criminal penalties and (ii) such no event shall a Tax Indemnitee shall take be required to pursue any action so required in connection with so paying the Tax in a manner that is the least prejudicial contest (or to the pursuit of the permit Owner to pursue any contest). In addition, such Tax Indemnitee shall ) unless (provided, that i) Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, pay such Tax Indemnitee shallon demand all reasonable costs and expenses incurred by such Tax Indemnitee in connection with contesting such Taxes, at the expense of Owner (including, without limitation, all reasonable costs, out of pocket costs and expenses and reasonable attorneys' and accountants' fees and disbursements, (ii) if such contest shall involve the payment of the claim, Owner shall advance the amount thereof (to the extent indemnified hereunder) plus interest, penalties and additions to tax with respect thereto that are required to be paid prior to the commencement of such contest on an interest-free after-Tax basis to such Tax Indemnitee (and such Tax Indemnitee shall promptly pay to the Owner any net realized tax benefits resulting from such advance including any tax benefits resulting from making such payment), (iii) such Tax Indemnitee shall have reasonably determined that the action to be taken will not result in any material risk of forfeiture, sale or loss of the Aircraft (unless Owner shall have made provisions to protect the interests of any such Tax Indemnitee in a manner reasonably satisfactory to such Tax Indemnitee) (provided, that such Tax Indemnitee agrees to notify Owner in writing promptly after it becomes aware of any such risk), (iv) no Lease Event of Default shall have occurred and be continuing unless Owner has provided security for its obligations hereunder by advancing to such Tax Indemnitee before proceeding or continuing with such contest, the amount of the Tax being contested, plus any interest and penalties and an amount estimated in good faith contest by such Tax Indemnitee for expenses, and (or, if permitted by applicable law, allow Owner v) prior to contest) through appropriate administrative and commencing any judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so action controlled by Owner, Owner shall have acknowledged its liability for such claim hereunder, provided that Owner shall not be bound by its acknowledgment if the Final Determination articulates conclusions of law and fact that demonstrate that Owner has no liability for the contested amounts hereunder. Notwithstanding the foregoing, if any Tax Indemnitee shall appeal release, waive, compromise or settle any adverse administrative or judicial decisionclaim which may be indemnifiable by Owner pursuant to this Section 8.3 without the written permission of Owner, except that the Owner's obligation to indemnify such Tax Indemnitee shall not be required with respect to pursue any appeals to such claim (and all directly related claims and claims based on the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment outcome of such Tax Indemniteeclaim) shall terminate, adversely affecting such Tax Indemniteesubject to Section 8.3.4(c), and subject to Section 8.3.4(c), such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide repay to Owner (at Owner's cost and expense) with such information any amount previously paid or data that is in such Tax Indemnitee's control or possession that is reasonably necessary advanced to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any such claim) or settle or compromise any claim without , plus interest at the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).rate that would have
Appears in 1 contract
Samples: Participation Agreement (Continental Airlines Inc /De/)
Contest. (a) If a written claim is made against a Tax any Indemnitee for Taxes with respect any Tax that is subject to which Owner could be liable for payment or indemnity hereunderindemnification under this Section 10, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly Lessor will give Owner Lessee written notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner Lessee so requests in writing within 30 days after its receipt of such notice, the Indemnitee shall permit Lessee to contest the claim in the name of such Tax Indemnitee shallor in the name of Lessee, at to the expense extent permitted by law. However, if such claim together with other claims which could be made with respect to other transactions to which such Indemnitee is then a party could (if sustained) have an adverse effect on such Indemnitee's business or financial affairs (a "Special Claim"), or (b) if Lessee shall not be permitted by law to contest a claim (other than a Special Claim) on behalf of Owner such Indemnitee, then such Indemnitee shall contest such claim in good faith. Notwithstanding the foregoing, no claim shall be contested unless and until: (including, without limitation, a) the Indemnitee shall have received (i) an indemnity reasonably satisfactory to it for all reasonable costs, expenses and reasonable reasonably expected to be paid in contesting the claim (including attorneys' and accountants' fees and disbursements)) and (ii) written acknowledgment by Lessee of its liability hereunder (if such contest is decided adversely) in respect of such Taxes; (b) the action to be taken will not involve any material risk of the sale, forfeiture or loss of, or the creation of any Lien (except a Lien which Lessee shall have bonded in an amount and manner reasonably satisfactory to Lessor) on, the Aircraft or any part thereof or any interest therein; (c) if such contest shall be conducted in a manner requiring the payment of the claim, Lessee shall have advanced the amount required on an after-tax basis; (d) no Default or Event of Default shall have occurred and be continuing and Lessor shall be receiving all amounts of Rent when due, without reduction by reason of any Taxes; and (e) if such claim is a Special Claim, and if Lessor shall have received a legal opinion (at the expense of Lessee) from counsel satisfactory to Lessor indicating that a reasonable basis for such contest exists. Lessor and Lessee shall in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings consider the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control party's views regarding the conduct of any such proceeding the contest. Lessor and Lessee shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemniteeeach other, upon request, such Tax Indemnitee shall consult with Owner in good faith regarding reasonably obtainable information and such other reasonable assistance as may be necessary or advisable for the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress effective evaluation or conduct of such contest. A Tax Indemnitee Notwithstanding the foregoing provisions of this Section 10.4, if at any time Lessor waives its right of indemnification under this Section 10 in respect of a claim, or if, after having received payment of indemnification from Lessee hereunder in respect to such claim, Lessor tenders such payment to Lessee, then Lessee shall not fail be entitled to take any action expressly required by this Section 8.3.4 (includingcontest, without limitationor to continue to contest, any action regarding any appeal of an adverse determination with respect to any such claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Samples: Aircraft Lease Agreement (Western Pacific Airlines Inc /De/)
Contest. In the event a claim shall be made by the Internal Revenue Service (aor any state or local taxing authority) If which, if successful, would result in a written claim is made against a Tax Indemnitee Loss under circumstances which would require Lessee to indemnify Lessor for Taxes with respect such Loss, Lessor hereby agrees to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall notify Lessee promptly give Owner notice in writing of such claim, to forebear payment of the tax claimed for at least thirty (30) days after giving such notice, to give to Lessee any relevant information requested by it relating to such claim which may be particularly within the knowledge of Lessor, other than the Lessor's tax returns, and, if Lessee shall request, within thirty (30) days after Lessee's receipt of such notice, request that such claim be contested, to take such action in connection with contesting such claim, including appropriate appeals from lower court decisions, as Lessee shall reasonably request in writing from time to time, but only if Lessee shall, contemporaneously with such initial request, have (i) made provision for Lessor's indemnification in a manner reasonably satisfactory to Lessor for all costs and expenses, including (without limitation) reasonable legal fees and expenses, which Lessor incurs in connection with contesting such claim, and (ii) furnished Lessor (if requested by Lessor) with an opinion of tax counsel, reasonably satisfactory to Lessor, to the effect that there is a realistic possibility that the Lessor shall prevail in such contest, provided, however, that failure at any time after having received such request from Lessee, Lessor, at its sole option, may enter into a reasonable settlement of such claim or may forego any and all administrative appeals, proceedings, hearing and conferences with the Internal Revenue Service (or any state or local taxing authority, as the case may be) in respect of such claim and may, at its sole option, either pay the tax claimed and xxx for a refund in the appropriate court, selected by Lessor, or contest such claim considering, however, in good faith such request as Lessee shall make concerning the most appropriate forum in which to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a proceed, provided that if Lessor settles, compromises or otherwise discontinues the contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; providedLessee, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee Lessee shall be required by law relieved of any obligation to take action prior pay any amount pursuant to the end of Subsection 17(E) with respect to such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Ownerclaim, and Lessor shall pay promptly to Lessee any amounts theretofore paid by Lessee to Lessor with respect to such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood claim. In the event that a Tax Indemnitee shall be entitled Lessor chooses to pay the Tax claimed tax and xxx for a refund prior refund, Lessee shall make Lessor an interest-free loan in the amount of such payment; to the end extent that Lessor subsequently receives a refund of such 30-day period if (i)(A) amount, it shall pay such refund to Lessee, together with interest thereon received by Lessor from the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial tax authority; to the pursuit extent that Lessor does not receive a refund of such amount, Lessor's obligation to repay the interest-free loan shall be offset against Lessee's obligation to pay Lessor an indemnity pursuant to Subsection 17(E) for the tax that was the subject of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to To the extent necessary in order that Lessor receives (or is allowed to contest the claimcredit against any tax liability of Lessor) furnish Owner with copies a refund of any requests tax, penalty, interest or addition to tax for information from any Taxing Authority relating which Lessee has paid an indemnity to such Taxes with respect Lessor pursuant to which Owner may be required Subsection 17(E), Lessor shall pay to indemnify hereunder. If requested by Owner in writing Lessee within 30 thirty (30) days after its receipt of such notice, such Tax Indemnitee shall, at thereof the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes refund plus the amount of any interest received by (I) resisting payment thereof, (II) not paying Lessor on such refund and the same except under protest if protest amount of any tax saving to which Lessor is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain entitled as a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment result of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c))payment.
Appears in 1 contract
Contest. (a) If a written claim is made against a Tax an Indemnitee for any Taxes with respect to which Owner could be liable for payment or indemnity hereunderindemnified against in this Section 10, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee Lessor shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunderLessee. If requested by Owner Lessee in writing within 30 days after its receipt of such noticewriting, such Tax the Indemnitee shall, at upon receipt of an indemnity satisfactory to such Indemnitee for the expense expenses of Owner contest (including, without limitation, all reasonable costs, expenses and reasonable attorneys' expenses, legal and accountants' fees and disbursements), penalties and interest) and for any liability or loss which such Indemnitee may incur as a result of its contesting any Tax., in good faith contest in the name of such Indemnitee (oror if the contest with respect to such Taxes concerns an aspect of such Taxes that is applicable to the possession, if maintenance, situs, lease or use of aircraft and such Taxes are not generally applicable to the properties or assets (other than aircraft and engines) owned or leased by such Indemnitee or any members of its consolidated group for United States Federal income tax purposes, such Indemnitee shall, to the extent permitted by applicable law, allow Owner permit Lessee to contestcontest in the name of such Indemnitee) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (Ii) resisting payment thereof, thereof if practicable in the Indemnitee's sole discretion. (IIii) not paying the same except under protest protest, if protest is necessary and proper or proper, and (IIIiii) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or and judicial proceedingproceedings. If requested to do so by Owner, the Tax an Indemnitee shall appeal obtain a refund of all or any adverse administrative or judicial decisionpart of such Taxes paid by Lessee, except such Indemnitee shall pay Lessee the amount of such refund; provided that the Tax Indemnitee such amount shall not be required payable before such time as Lessee shall have made all payments of indemnities to pursue any appeals such Indemnitee then due under this Section 10. If in addition to such refund an Indemnitee shall receive an amount representing interest on the amount of such refund, Lessee shall be paid that proportion of such interest which is fairly attributable to the United States Supreme Court. If and Taxes paid by Lessee prior to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment receipt of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee refund. Lessee shall permit Owner not be deemed to control be in default under any of the conduct of any such proceeding and above indemnification provisions so long as it or Lessor shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct diligently prosecute such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail any report or return is required to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination be made with respect to any claim) obligation of Lessee under this Section 10 or settle arising out of this Section 10, Lessee will either make such report or compromise any claim without return in such manner as will show the prior written consent interest of the Owner (except Indemnitee in each Item of Equipment, and send a copy of such report or return to Lessor and such Indemnitee or will notify Lessor and such Indemnitee of such requirement and make such report or return in such manner as contemplated by Section 8.3.4(b) or (c)).shall be satisfactory to Lessor and such Indemnitee. In the event of a contest of any Taxes hereunder, whichever of the
Appears in 1 contract
Samples: Lease Agreement (Airlease LTD)
Contest. (a) If a written claim is made against a Tax any Indemnitee for any Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunderLessee is responsible under Section 10.1 hereof, such Tax Indemnitee shall promptly give Owner notice notify Lessee. Without prejudice to any other rights Lessee may have in writing of such connection therewith (including, without limitation, any claim (provided, that for damages for a failure to so notify Owner give notice specified in the preceding sentence), the failure to provide such notice shall not relieve Owner of its indemnity affect Lessee's obligations hereunder to such Indemnitee unless such failure to notify effectively forecloses Owner's rights to require a shall preclude the contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If reasonably requested by Owner Lessee in writing within 30 days after its receipt such notification, and upon determination that the amount of the claim exceeds $25,000 and that the action to be taken will not, in the sole opinion of Lessor, result in any material danger of the sale, forfeiture or loss of, or the creation of any Lien on the Aircraft or any interest therein (or in the event of such noticematerial danger of such sale, forfeiture, loss or Lien, Lessee shall have failed to obtain a bond satisfactory to such Indemnitee in such Indemnitee's sole discretion), such Tax Indemnitee shall, upon receipt of an indemnity reasonably satisfactory to it at the sole expense of Owner Lessee (including, including without limitation, all reasonable costs, expenses expenses, losses, legal and reasonable attorneys' and accountants' accountant's fees and disbursements, penalties and interest), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by by, in such Indemnitee's sole discretion, (Ii) resisting payment thereof, (IIii) not paying the same except under protest protest, if protest is necessary and proper or proper, and (IIIiii) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decisionproceedings; provided, except however, that the Tax such Indemnitee shall not be required to pursue take any appeals action to contest a claim unless (w) Lessee provides an opinion of tax counsel of nationally recognized standing selected by Lessee and reasonably satisfactory to such Indemnitee, to the effect that there is a reasonable basis under the standard set forth in ABA Formal Opinion 85-352 or any applicable successor thereto in law and fact for contesting such proposed adjustment, which opinion shall be obtained at Lessee's sole cost and expense, (x) in the event that the subject matter of the contest is of a continuing nature and has previously been decided adversely pursuant to the contest provisions of this Section 10.5 by the highest court to which an appeal was taken, there has been a change in the law (including, without limitation, amendments to statutes or regulations, administrative rulings and court decisions) after such claim shall have been so previously decided and such Indemnitee shall have received an opinion of independent tax counsel selected by such Indemnitee, which opinion shall be obtained at Lessee's sole expense, to the effect that, as a result of such change it is (at least) as likely as not that the position which such Indemnitee or Lessee, as the case may be, will assert in any contest of such Tax would prevail, (y) prior to the commencement of any contest, Lessee shall have delivered to such Indemnitee a written acknowledgment of its obligation to fully indemnify such Indemnitee to the extent the contest is not successful and (z) in no event shall such Indemnitee be required to appeal an adverse judicial determination to the United States Supreme Court. If and Any contest required pursuant to the extent preceding sentence shall, at the option of such Indemnitee, be conducted by such Indemnitee or Lessee in the name of Lessee or such Indemnitee. If any contest involves payment of the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated question, Lessee shall either make such payment directly to the transactions contemplated appropriate authority or advance to such Indemnitee sufficient funds (on an interest-free basis) to make such payment. Lessee agrees to give such Indemnitee reasonable notice of any contest prior to the commencement thereof. If an Indemnitee shall obtain an actual refund or credit of all or any part of any Taxes paid by Lessee, such Indemnitee shall pay to Lessee the Operative Agreements without, in the good faith judgment amount of such Tax Indemniteerefund or credit (taking into account any tax savings resulting therefrom), adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct net of any expenses incurred by such proceeding Indemnitee and shall provide not already paid or reimbursed by Lessee, and any interest fairly attributable thereto plus an amount equal to Owner (at Owner's cost and expense) with the Tax savings realized by such information or data Indemnitee as a result of any payment to Lessee pursuant to this paragraph; provided, however, that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee amount shall not fail be payable before Lessee shall have made all payments and indemnities to take any action expressly required by such Indemnitee then due under this Section 8.3.4 (includingLease; and, without limitationprovided, any action regarding any appeal further, however, that the aggregate amount of an adverse determination all payments with respect to any claim) Taxes made by such Indemnitee pursuant to this sentence shall not exceed the aggregate amount of all payments made by Lessee to such Indemnitee pursuant to this Article 10 with respect to such Taxes. Notwithstanding anything to the contrary herein, if a Default or settle Event of Default shall have occurred and be continuing, Lessee shall not be entitled, and Lessor shall not be obligated, to commence or compromise to continue any claim without the prior written consent contest hereunder. Lessee shall not be deemed to be in default under any of the Owner (except as contemplated indemnification provisions of this Article 10 while it or an Indemnitee diligently prosecutes such contest pursuant to this Section 10.5. Nothing contained in this Section 10.5 shall require any Indemnitee to contest or permit Lessee to contest a claim which it would otherwise be required to contest pursuant to this Section 10.5 if such Indemnitee shall waive payment by Lessee of any amount that might otherwise be payable by Lessee under Section 8.3.4(b) or (c))10.1 by way of indemnity in respect of such claim.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Frontier Airlines Inc /Co/)
Contest. (a) If Sublessor receives a written claim is made against a for an indemnity pursuant to the Tax Indemnitee Indemnity Agreement for Taxes with respect which Sublessee would be required to which Owner could be liable for payment or pay Sublessor an indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee Sublessor shall promptly give Owner notice notify Sublessee thereof in writing of such claim (provided, but it being understood and agreed that failure of Sublessor to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in provide such notice to Owner, so inform Owner, and such Tax Indemnitee Sublessee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially adversely affect or otherwise prejudice the any Sublessor’s right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contestan indemnity hereunder). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner Sublessee in writing within 30 days after ten (10) Business Days before the latest day on which Sublessor may request a contest pursuant to Section 6 of the Tax Indemnity Agreement, Sublessor shall exercise its receipt rights, if any, under Section 6 of the Tax Indemnity Agreement provided that in no event shall Sublessor be required to initiate or continue (or be required to request any other person to initiate or continue) a contest unless: (i) the amount of the obligation on the part of Sublessee to indemnify Sublessor pursuant to subsection (1) hereof shall be at least $50,000, (ii) Sublessee agrees to reimburse Sublessor on demand (and complies with such notice, such Tax Indemnitee shall, at agreement) for all of the expense of Owner Participant’s and Sublessor’s reasonable costs and expenses (including, without limitation, all reasonable costs, expenses legal and reasonable attorneys' and accountants' accounting fees and disbursements)) which each may incur in contesting such disallowance, in good faith (iii) if Owner Participant elects to contest the disallowance by paying the tax claimed (orincluding interest, if permitted by applicable lawpenalties or additions to tax) and seeking a refund, allow Owner Sublessee shall advance to contest) through appropriate administrative and judicial proceedings Sublessor on an interest free basis the validity, applicability or aggregate amount of taxes, interest, penalties and additions to the tax applicable to such Taxes by (I) resisting payment thereofdisallowance and agree to indemnify Sublessor and the Owner Participant for any adverse tax consequences resulting from such advance, (IIiv) such contest would not paying entail any risk of criminal penalties, (v) with respect to such disallowance, Sublessee shall have furnished Sublessor at Sublessee’s expense, with a written opinion of independent tax counsel selected by Sublessor that a Reasonable Basis exists to contest such disallowance and prior to filing any appeal an opinion that a successful outcome on appeal is more likely than not and have posted a bond or other security for such appeal, (vi) no Default or Event of Default, under any of the same except under protest if protest Operative Documents by Sublessor or the Airline Services Agreement, has occurred and is necessary continuing, and proper or (IIIvii) if Sublessee shall have delivered to Sublessor a written acknowledge of Sublessee’s obligation to indemnify in full Sublessor pursuant to this Agreement to the payment extent that the contest is made, using reasonable efforts not successful. Sublessor shall have no obligation to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested cause Owner Participant and Owner Participant shall have no obligation to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals decision of an appellate court to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Contest. (aA) If In the event a written claim is shall be made against by the Internal Revenue Service which, if successful, would result in a Tax Indemnitee loss for Taxes which Lessee would have liability to Lessor pursuant to this Article 21 of the Lease, Lessor hereby agrees to contest such claim, provided, that: (i) within thirty (30) days after notice by Lessor to the Lessee of such claim, the Lessee shall have requested that such claim be contested; (ii) Lessor at its sole option, may forego any and all administrative appeals, proceedings, hearings and conferences with the relevant taxing authority in respect to such claim and may, at its sole option, either pay the tax claimed and sxx for a refund in the appropriate forum selected by Lessor or contest such claim in the appropriate forum selected by Lessor; (iii) within thirty (30) days after notice by Lessor to Lessee of such claim, the Lessee shall have furnished Lessor with an opinion of independent tax counsel chosen by the Lessee and acceptable to Lessor, both as to counsel and substance, to the effect that there is a reasonable basis to contest the claim; (iv) the Lessee shall reimburse Lessor on demand, for all costs, expenses and liability which Owner could Lessor may incur in contesting such claim, and to pay all reasonable costs and expenses which Lessor may incur in contesting claim; (v) the Lessor shall not be liable for payment or indemnity hereunderobligated to contest any claim unless the amount of such claim exceeds Twenty Five Thousand Dollars ($25,000); and (vi) the Lessor shall not be obligated to contest any claim if an Event of Default has occurred and is continuing. In the event that at any time Lessor shall pay the tax claimed and then seek a refund, the Lessee shall pay to Lessor (as a "prior payment") the amount of such tax and interest, additions to tax and penalties thereon, if any, but not in excess of the amount which the Lessee would be obligated to pay in respect of the related loss under this Article of the Lease. Upon Final Determination of the liabilities of Lessor, or the receipt of a refund by Lessor, Lessor shall offset the amount of such prior payment against the full amount due, if any, pursuant to the provisions of this Article and either (i) the Lessee shall pay to Lessor within 30 days after notice thereof, any excess of such full amount due, if any, over such prior payment, or (ii) Lessor shall repay to the Lessee within 30 days after the later of a Tax Indemnitee makes receipt of such refund or notice of such Final Determination, any excess of such prior payment over such full amount due. Any interest received by Lessor in connec- tion with any refund which is allocable to the indemnified taxes paid by Lessor in respect of which the Lessee had made a determination that a Tax is due prior payment shall be for which Owner could have an indemnity obligation hereunderthe account of the Lessee. (B) In the case of any such claim, such Tax Indemnitee shall Lessor agrees to notify the Lessee promptly give Owner notice in writing of such claim, agrees not to make payment of the tax or other liability claimed for at least thirty (30) days after the giving of such notice (unless specifically required to do so at an earlier date by the Internal Revenue Service), and agrees to cooperate with the Lessee in good faith in order that such claim may be contested effectively. The Lessee and its counsel shall maintain confidentiality with respect to all such information insofar as is possible, consistent with the conduct of a contest hereunder. (provided, that failure to so notify Owner C) Lessor shall not relieve Owner enter into a settlement or other compromise with respect to, or otherwise concede, any claim without the written consent of Lessee, which consent shall not be unreasonably withheld, unless Lessor waives its indemnity obligations hereunder unless such failure right to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action be indemnified with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would but not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may any future claims) under this Article of the Lease. Lessee shall not be required considered to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt have unreasonably withheld such consent if such consent shall be withheld as a result of Lessee's reasonable evaluation of the merits of the basis for contesting such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses claim and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee Lessee shall not be required to pursue consider any appeals issue or dispute not directly related to such claim. (D) If Lessee requests Lessor to contest a claim and otherwise complies with its obligations under this Section 21.4, it shall have no obligation to pay any indemnity under this Article of the Lease resulting from such claim (except pursuant to Section 21.4(A)(iv) or a prior payment) until a Final Determination occurs regarding the liability of Lessor in respect of the claim. Lessee's obligation to pay the indemnity shall become fixed upon such Final Determination and unless otherwise provided in this Section 21.4 shall be payable within 30 days after receipt by Lessee of written notice from Lessor as to the United States Supreme Courtoccurrence of a Final Determination. If In all other cases, the liability of Lessee shall become fixed and payable as provided in Section 21.3 of the Lease. (E) For purposes of this Section 21.4, "Final Determination" shall mean a decision of a court of original jurisdiction with respect to such claim, (provided that the extent the Tax Indemnitee is able to separate the contested issue time for filing an appeal of such decision has expired) or issues from other issues arising disposition of such claim in the same administrative or judicial proceeding that are unrelated to the transactions manner contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contestherein. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee Lessor shall not fail be required to take contest any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal claim after receipt of an adverse determination with respect Final Determination unless Lessor shall have received an opinion of independent tax counsel, chosen by Lessee and acceptable to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).Lessor, stating that it is more likely than not that a further contest will be successful. 21.5 [RESERVED]. 21.6
Appears in 1 contract
Contest. (a) If a written claim is made against a Tax Indemnitee for any Taxes with respect referred to which Owner could be liable for payment or indemnity hereunderin this Section 16, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (providednotify Lessee, provided that a failure to so notify Owner shall not relieve Owner the Lessee of its indemnity obligations hereunder obligation under this Section 16 unless such failure to notify it actually or effectively forecloses Owner's rights to require precludes or materially adversely impacts a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If reasonably requested by Owner Lessee in writing within 30 days after its such notification, Tax Indemnitee shall upon receipt of such notice, such Tax Indemnitee shall, an indemnity satisfactory to it and at the expense of Owner Lessee (including, without limitation, all reasonable costs, expenses and reasonable attorneys' expenses, losses, legal and accountants' fees and disbursements), penalties and interest) in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by either (Ii) resisting payment thereofthereof if practicable, (II) not paying the same except under protest if protest is necessary and proper or (IIIii) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or and judicial proceeding. If requested to do so by Ownerproceedings; provided, the Tax Indemnitee shall appeal any adverse administrative or judicial decisionhowever, except that the Tax Indemnitee shall not be required to pursue take any appeals action to contest a claim unless (a) Lessee provides with such written request an opinion of independent counsel, satisfactory both as to counsel and substance, to the United States Supreme Courteffect that there is a meritorious basis for such contest, (b) such action to be taken will not result in a material risk of a sale, forfeiture or loss of, or creation of a Lien (other than a Permitted Lien) on, any Item of Equipment, (c) the Lessee acknowledges its liability under this Section 16 for any Taxes being contested, and (d) no Event of Default shall have occurred or be continuing. If and to the extent the Tax Indemnitee is able determines to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements withoutpay such Taxes and seek a refund, in the good faith judgment of Lessee will either pay such Taxes on Tax Indemnitee, adversely affecting 's behalf and pay Tax Indemnitee any amount due with respect to such payment pursuant to Section 16.2 hereof or will promptly reimburse Tax Indemnitee, Indemnitee for such Taxes pursuant to Sections 16.1 and 16.2. If Tax Indemnitee shall permit Owner obtain a refund of all or any part of such Taxes paid by Lessee, Tax Indemnitee shall pay Lessee the amount of such refund net of any recovery expenses; provided that such amount shall not be payable during such time as a Default or Event of Default shall have occurred and be continuing or before such time as Lessee shall have made all payments of indemnities to control Tax Indemnitee then due under this Section 16 and such payment shall be limited to the amount previously paid by Lessee hereunder with respect to such Taxes. If in addition to such refund Tax Indemnitee shall receive an amount representing interest on the amount of such refund, Lessee shall be paid that proportion of such interest which is fairly attributable to the Taxes paid by Lessee prior to the receipt of such refund. In case any report or return is required to be made with respect to any obligation of Lessee under this Section 16 or arising out of this Section 16, Lessee will promptly notify Lessor of such requirement and will inform Lessor whether Lessee (i) will file such report or return in such manner as will show the ownership in Lessor of each Item of Equipment and send a copy of such report or return to Lessor or (ii) will make such report or return for filing by Lessor in such manner as shall be satisfactory to Lessor. In the event of a contest of any Taxes hereunder, Tax Indemnitee shall apprise Lessee of all material developments with respect to such contest, shall forward copies of all material submissions made in such contest and the forum of such contest, shall consider in good faith any request concerning the conduct of any such proceeding contest and shall provide without waiving its right to Owner (at Owner's cost and expense) be indemnified hereunder with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary respect to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take settle or concede any action expressly required by this Section 8.3.4 such contest without the written consent of Lessee. At Lessee's written request and at Lessee's expense (including, without limitation, any action regarding any all reasonable costs, expenses, losses, legal and accountant's fees and disbursements, penalties, if any, and interest). Tax Indemnitee shall appeal of an adverse determination with respect decision at the administrative or judicial level to any claim) or settle or compromise any claim without the prior written consent of appropriate forum, provided that Tax Indemnitee shall not be required to request a hearing before the Owner (except as contemplated by Section 8.3.4(b) or (c))U.S. Supreme Court.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Vanguard Airlines Inc \De\)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's ’s rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).indemnify
Appears in 1 contract
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner Lessee could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner Lessee could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner Lessee notice in writing of such claim (provided, that failure to so notify Owner Lessee shall not relieve Owner Lessee of its indemnity obligations hereunder unless such failure to notify effectively forecloses OwnerLessee's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner Lessee for 30 days following the receipt of such notice by OwnerLessee; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to OwnerLessee, so inform OwnerLessee, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sue for a refund prior to the end of such 30-day period x xefund if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by OwnerLessee) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that that, in its good faith opinion, is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner Lessee shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner Lessee with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Lessee may be required to indemnify hereunder. If requested by Owner Lessee in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner Lessee (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable lawlaw to be contested by the Lessee in its own name, allow Owner Lessee to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by OwnerLessee, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner Lessee to control the conduct of any contest such proceeding matter in its own name, if permitted by applicable law, and shall provide to Owner Lessee (at OwnerLessee's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contestcontest (other than such Tax Indemnitee's federal income tax returns), and Lessee shall keep such Tax Indemnitee reasonably informed concerning the progress of such contest and shall provide such Tax Indemnitee with copies of all submissions and judicial and administrative proceedings. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner Lessee in good faith regarding the manner of contesting such claim and shall keep Owner Lessee reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 9.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner Lessee (except as contemplated by Section 8.3.4(b9.3.4(b) or (c)).
Appears in 1 contract
Samples: Participation Agreement (Continental Airlines Inc /De/)
Contest. (a) If a written claim is made against a and received by any Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a any Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Lessee may be required to indemnify hereundersuch Tax Indemnitee under this Schedule 5, such Tax Indemnitee will notify Lessee promptly in writing of such claim, but the failure to so notify will not affect any obligation of Lessee under this Schedule 5, provided that nothing contained herein will prevent Lessee from making a claim for any damages it suffers with respect to an obligation to indemnify such Tax Indemnitee hereunder solely as a result of such failure to notify by such Tax Indemnitee (except to the extent that Xxxxxx's or such Tax Indemnitee's successful defence of such claim is precluded thereby). If requested by Owner Xxxxxx in writing within 30 days after its receipt of such noticewriting, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith will contest (or, if permitted by applicable lawin its sole discretion, allow Owner Lessee to contest) through appropriate administrative such claim, provided that (1) no Event of Default has occurred and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereofis then continuing, (II2) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, Lessee will reimburse such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled on demand for all reasonable expenses incurred by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding for the manner purpose of contesting such claim and shall keep Owner reasonably informed regarding the progress of conducting such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, including without limitation, any action regarding attorney, accountant’s or advisory fees, (3) before such Tax Indemnitee commences any appeal administrative or judicial action, Lessee will acknowledge its obligation in writing to indemnify such Tax Indemnitee for the amount of Tax in controversy if the contest is unsuccessful, (4) Lessee provides and pays for an adverse determination with respect opinion of independent tax counsel mutually acceptable to any claimLessee and such Tax Indemnitee that there is a reasonable basis for the contest, (5) or settle or compromise any claim without the prior written consent there is no material risk of forfeiture of the Owner Aircraft as a result of such contest, and (except as contemplated 6) if such Tax Indemnitee decides to initiate such contest by Section 8.3.4(b) or (c))paying the Tax claimed and claiming a refund thereof, Xxxxxx will have advanced to such Tax Indemnitee the amount of such Tax on an interest-free basis and will have agreed to indemnify such Tax Indemnitee for any adverse tax consequences of such interest-free loan.
Appears in 1 contract
Contest. (a) If a written claim is made against a any Tax Indemnitee for any Indemnified Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if (a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder"Claim"), such Tax Indemnitee shall will, as ------- promptly as practical after such tax Indemnitee has received written notification of such Claim, give Owner Borrower written notice of such Claim; provided that, a failure to give such notice in writing of such claim (provided, that failure to so notify Owner a timely manner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require preclude a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner Claim for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify indemnification -------- ---- hereunder. If requested by Owner Borrower so requests in writing within 30 thirty (30) calendar days after its receipt of such notice, such Tax Indemnitee shall, at shall consult with Borrower to consider what action may be taken to resist payment of the expense of Owner (including, without limitation, all reasonable costs, expenses relevant Indemnified Taxes and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of following such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the consultation such Tax Indemnitee shall appeal may take any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising reasonable action in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment name of such Tax Indemnitee, adversely affecting such Tax Indemnitee, Indemnitee to contest the Claim in the name of such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is or, in such Tax Indemnitee's control sole discretion, in the name of Borrower, to the extent permitted by law; provided that, the following conditions are met: -------- ---- such Tax Indemnitee shall have received adequate provision satisfactory to it for such Claim and any liability, expense or possession loss arising out of or related to such contest (including without limitation indemnification for all costs, expenses, losses, reasonable legal and accounting fees and disbursements, penalties and interest); the contest will not result in any danger of the sale, forfeiture or loss of, or the creation of any Lien on, any Aircraft, any Engine, any Part, or any interest therein unless bonded in a manner and amount acceptable to the Tax Indemnitees; if such contest shall be conducted in a manner requiring the payment of the Claim, Borrower shall have paid such Claim to the extent required; no Default or Event of Default shall have occurred and be continuing; prior to commencing any administrative appeal, Borrower shall have acknowledged its liability to such Tax Indemnitee hereunder for the contested amount; such Tax Indemnitee shall have received a legal opinion (at the expense of Borrower) from counsel selected by such Tax Indemnitee (and reasonably satisfactory to Borrower) indicating that is reasonably necessary a reasonable basis for such contest exists; and such Tax Indemnitee has not received, or does not receive, an opinion from its external tax advisor concluding that the proposed actions to conduct contest such contestClaim would trigger a significant possibility of creating a local franchise issue of the Tax Indemnitee (e.g. adverse publicity or impairing of the Tax Indemnitee's relationship with local regulators) or impairing the status of other open tax matters (e.g. tax audits) between such Tax Indemnitee and the local taxing authorities. In Notwithstanding the case foregoing provisions of this Section 8(b)(iii), if at any time such Tax Indemnitee waives its right of indemnification under this Section 8(b) in respect of a contest controlled by a Tax IndemniteeClaim, or if, after having received payment of indemnification from Borrower hereunder in respect of such Claim, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting tenders such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee payment to Borrower, then Borrower shall not fail be entitled to take any action expressly required by this Section 8.3.4 (includingcontest, without limitationor to continue to contest, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c))such Claim.
Appears in 1 contract
Contest. (a) If a written claim is shall be made against a Tax any ------- Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a any Tax Indemnitee makes a determination that a Tax is due in excess of $10,000 for which Owner could have an indemnity obligation hereunderLessee would be obligated to indemnify pursuant to this Article VII, such Tax Indemnitee shall promptly give Owner notify Lessee after such Indemnitee becomes aware of such action and in any event within 30 days after receipt by such Indemnitee of a written claim (but failure to notify Lessee within such 30-day period shall not impair such Indemnitee's right to indemnification under this Article VII except to the extent that Lessee's rights to contest such claim shall have been materially impaired by such failure) and shall, to the extent permitted by applicable law, not pay the claim before the earlier of (i) 30 days after giving Lessee notice and (ii) receipt of Lessee's response. If Lessee shall so request within the period referred to in writing the foregoing sentence, such Indemnitee shall, at Lessee's expense reimbursed to such Indemnitee on an After-Tax Basis, contest the imposition, validity or applicability of such Tax. The ultimate control over the conduct of such contest (including the right to forgo any and all administrative appeals, proceedings, hearings and conferences in respect of such claim and the right to select the forum for such contest and determine whether any such contest shall be by (i) resisting payment of such Tax, (ii) paying such Tax under protest or (iii) paying such Tax and seeking a refund thereof) shall remain with such Indemnitee; provided, however, that failure such Indemnitee shall keep --------- -------- Lessee or its counsel reasonably informed as to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require the progress thereof, consult with Lessee within a contest of such claim) and shall take no reasonable period before any significant action with respect thereto is taken or omitted and consider in good faith any suggestions made by Lessee or its counsel; provided further that unless (a) remedies under ---------------- Section 16 of the Lease shall have been, or are being, exercised in connection with an Event of Default which has occurred and is continuing or (b) a Bankruptcy Default or Payment Default has occurred and is continuing, and subject to Indemnitee's waiver rights described in Section 7.04(b) hereof, and provided that all conditions set forth in this Section 7.04 for the continuation of a contest shall then be satisfied, no such claim proceedings or litigation shall be settled or otherwise compromised without the prior written consent of Owner for 30 days following Lessee. If such Indemnitee so elects, such contest shall be conducted by Lessee in the receipt name of such notice by Owner; provided, that, Indemnitee (subject to the preceding proviso) and in the case of a claim made against a Tax Indemnitee, if no event shall such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall or Lessee be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right permitted to contest or to continue to contest, as the case may be, the imposition of any Tax for which Lessee is obligated to indemnify pursuant to this Article VII unless (BA) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner Lessee shall have agreed to keep pay such information confidential other than to the extent necessary Indemnitee on demand and shall have paid as so demanded all reasonable costs and expenses that such Indemnitee may incur in order to contest the claim) furnish Owner connection with copies of any requests for information from any Taxing Authority relating to contesting such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner claim (including, without limitation, all reasonable costs, expenses expenses, losses, reasonable legal and reasonable attorneys' and accountants' accounting fees and disbursements)) on an After-Tax Basis, (B) Owner Participant shall have determined in good faith that the action to be taken will not result in any material risk of a Lien on, or of sale, forfeiture or loss of any Transponder or any part thereof or any interest therein (except if Lessee shall have made provision to protect the interests of Owner Participant in a manner satisfactory to Owner Participant), (C) if such contest (orshall be conducted in a manner requiring the payment of the claim, if permitted by applicable law, allow Owner Lessee shall have advanced on an interest-free basis an amount equal to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by claim which such Indemnitee shall have elected to pay and Lessee shall have indemnified the Indemnitee in a manner satisfactory to the Indemnitee, for any adverse tax consequences from the receipt, or interest-free nature, of such advance and (ID) resisting an Event of Default, Payment Default or Bankruptcy Default shall not have occurred and be continuing unless Lessee has posted adequate security securing payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, of the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals subject to the United States Supreme Court. If contest and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent expenses of the Owner (except as contemplated by Section 8.3.4(b) or (c))contest in a manner reasonably acceptable to such Indemnitee.
Appears in 1 contract
Samples: Magellan International Inc
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner Lessee could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner Lessee could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner Lessee notice in writing of such claim (provided, that failure to so notify Owner Lessee shall not relieve Owner Lessee of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's Lessee’s rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner Lessee for 30 days following the receipt of such notice by OwnerLessee; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to OwnerLessee, so inform OwnerLessee, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by OwnerLessee) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that that, in its good faith opinion, is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner Lessee shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner Lessee with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Lessee may be required to indemnify hereunder. If requested by Owner Lessee in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner Lessee (including, without limitation, all reasonable costs, expenses and reasonable attorneys' ’ and accountants' ’ fees and disbursements), in good faith contest (or, if permitted by applicable lawlaw to be contested by the Lessee in its own name, allow Owner Lessee to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by OwnerLessee, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner Lessee to control the conduct of any contest such proceeding matter in its own name, if permitted by applicable law, and shall provide to Owner Lessee (at Owner's Lessee’s cost and expense) with such information or data that is in such Tax Indemnitee's ’s control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a (other than such Tax Indemnitee’s federal income tax returns), and Lessee shall keep such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding concerning the progress of such contest. A Tax Indemnitee contest and shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).provide such
Appears in 1 contract
Samples: Participation Agreement (Continental Airlines Inc /De/)
Contest. If any claim shall be made against any Tax Indemnitee or if any proceeding shall be commenced against any Tax Indemnitee (a) If including a written claim is made against a notice of such proceeding) for any Tax Indemnitee for Taxes with respect as to which Owner could be liable for payment or the Lessee may have an indemnity hereunderobligation, or if a any Tax Indemnitee makes a determination shall determine that a any Tax is due for as to which Owner could the Lessee may have an indemnity obligation hereundermay be payable, such Tax Indemnitee shall promptly give Owner notice notify the Lessee in writing of such claim (provided, that failure to so notify Owner and shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no any action with respect to such claim claim, proceeding or Tax without the prior written consent of Owner the Lessee for 30 days following the after receipt of such notice by Ownerthe Lessee unless the failure to take action could result in the imposition of penalties or fines or material danger of sale, forfeiture or loss of, or the creation of any Lien on, the Units or any portion thereof or interest therein; provided, thathowever, in that any failure to provide such notice shall not relieve the case Lessee of a any obligation to indemnify any Tax Indemnitee hereunder except to the extent such failure materially impairs the defense of such claim made against a Tax Indemniteeand such failure did not result from the Lessee's failure to provide information, file reports or otherwise fulfill the requirements of the Operative Agreements; provided, further, however, that if such Tax Indemnitee shall be required by law or regulation to take action with respect to any such claim, proceeding or Tax prior to the end of such 30-30 day period, period such Tax Indemnitee shall, in such notice to Ownerthe Lessee, so inform Owner, the Lessee and such Tax Indemnitee shall not take no any action for as long as it is legally able with respect to do so (it being understood that a such claim, proceeding or Tax without the consent of the Lessee before the date on which such Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereundertake action. If requested by Owner in writing If, within 30 days after its receipt of such noticenotice (or the shorter period referred to in the preceding sentence), the Lessee shall request in writing that such Tax Indemnitee contest the imposition of such Tax, the Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements)the Lessee, in good faith contest (orincluding by pursuit of appeals other than appeals to the United States Supreme Court), and shall not settle without the Lessee's written consent (such consent not to be unreasonably withheld, in good faith, based solely on the merits of the claim at issue), or if permitted such contest does not involve a claim for Income Taxes or Taxes imposed by applicable lawway of withholding, the Tax Indemnitee shall allow Owner the Lessee to contest) through appropriate administrative and judicial proceedings contest the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative Lessee's own name, or judicial proceeding that are unrelated to the transactions contemplated if required by the Operative Agreements withoutlaw, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct name, by, in the sole discretion of the Person conducting such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).:
Appears in 1 contract
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner Lessee could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner Lessee could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner Lessee notice in writing of such claim (provided, that failure to so notify Owner Lessee shall not relieve Owner Lessee of its indemnity obligations hereunder unless such failure to notify effectively forecloses OwnerLessee's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner Lessee for 30 days following the receipt of such notice by OwnerLessee; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to OwnerLessee, so inform OwnerLessee, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sue for a refund prior to the end of such 30-day period rxxxnd if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by OwnerLessee) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that that, in its good faith opinion, is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner Lessee shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner Lessee with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Lessee may be required to indemnify hereunder. If requested by Owner Lessee in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner Lessee (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable lawlaw to be contested by the Lessee in its own name, allow Owner Lessee to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by OwnerLessee, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner Lessee to control the conduct of any contest such proceeding matter in its own name, if permitted by applicable law, and shall provide to Owner Lessee (at OwnerLessee's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contestcontest (other than such Tax Indemnitee's federal income tax returns), and Lessee shall keep such Tax Indemnitee reasonably informed concerning the progress of such contest and shall provide such Tax Indemnitee with copies of all submissions and judicial and administrative proceedings. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner Lessee in good faith regarding the manner of contesting such claim and shall keep Owner Lessee reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 9.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner Lessee (except as contemplated by Section 8.3.4(b9.3.4(b) or (c)).
Appears in 1 contract
Samples: Participation Agreement (Continental Airlines Inc /De/)
Contest. (a) If a written claim is made against a Tax Indemnitee or Lessee for any Taxes with respect for which Lessee is obligated to which Owner could be liable for payment or indemnity hereundera Tax Indemnitee, or if notice is received by a Tax Indemnitee makes or Lessee from a determination Government Entity that such a Tax claim is due for which Owner could have an indemnity obligation hereundergoing to made, such Tax Indemnitee shall notify Lessee, or Lessee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to as the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner case may be required to indemnify hereunderbe. If requested by Owner Lessee in writing within 30 thirty (30) days after its such notification, the Tax Indemnitee agrees, upon receipt of such notice, such Tax Indemnitee shall, indemnity satisfactory to it and at the expense of Owner Lessee (including, including without limitation, all reasonable costs, expenses expenses, losses, legal and reasonable attorneys' and accountants' accounting fees and disbursements), penalties and interest) in good faith to contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes in the forum selected by such Tax Indemnitee by (IA) resisting payment thereofthereof if practicable, (II) not paying the same except under protest if protest is necessary and proper or (IIIB) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or and judicial proceedingproceedings; provided, however, no Tax Indemnitee shall be required to take any action to contest a claim unless (1) Lessee provides the Tax Indemnitee, together with such written request, with an opinion of independent tax counsel reasonably satisfactory to the Tax Indemnitee both as to counsel and substance, to the effect that there is a meritorious basis for such contest, (2) such action to be taken will not result in the risk of an imposition of criminal penalties or, in Lessor’s reasonable judgment, any risk of any sale, forfeiture or loss of the Aircraft, any Engine or any Part, or any interest in any thereof, (3) no Default shall have occurred and be continuing, (4) if Lessee determines reasonably to pay such Tax and seek a refund, Lessee has advanced the amount of such Tax to make such payment, (5) the amount of the Taxes at issue exceeds US$5,000, and (6) Lessee shall have provided ALA MSN 2851 – Global Crossing Airlines the Tax Indemnitee with a written acknowledgment of liability if and to the extent that the contest is not successful. If requested to do so Upon written request of Lessee and provided that the Tax Indemnitee determines in good faith that no Tax Indemnitee will be adversely affected by OwnerLessee’s conduct of such contest, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that allow Lessee to prosecute such tax contest in the name of the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue (or issues from other issues arising if possible in the same administrative name of Lessee) by granting an appropriate power of attorney or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of other authorization and such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that other action as is reasonably necessary to conduct such contest. In the case necessary, or, upon written request of a contest controlled by a Tax IndemniteeLessee, such Tax Indemnitee shall consult with Owner Lessee, keep Lessee informed regarding the tax contest and consider in good faith regarding the manner recommendations of contesting such claim and shall keep Owner reasonably informed regarding Lessee as to the progress prosecution of such the tax contest. A If the Tax Indemnitee shall not fail obtain a refund of all or any part of such Taxes for which Lessee has paid an indemnity hereunder or advanced funds to take the Tax Indemnitee as described above, the Tax Indemnitee shall pay Lessee the amount of such refund, after deducting all out-of-pocket costs and expenses that were incurred by Lessor or Tax Indemnitee in connection therewith. If in addition to such refund an amount representing expenses, attorney’s fees or interest on the amount of such refund is received, Lessee shall be paid such expenses, attorney’s fees and that proportion of such interest which is fairly attributable to taxes, fees and other charges paid by Lessee prior to the receipt of such refund; provided, however, that no amount shall be payable under this or the preceding sentence during any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c))period in which a Default is continuing.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Global Crossing Airlines Group Inc.)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's ’s rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so PARTICIPATION AGREEMENT (2012-1) 30 required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' ’ and accountants' ’ fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's ’s cost and expense) with such information or data that is in such Tax Indemnitee's ’s control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall BACK promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's ’s rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' ’ and accountants' ’ fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment BACK of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's ’s cost and expense) with such information or data that is in such Tax Indemnitee's ’s control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Samples: Participation Agreement (Continental Airlines Inc /De/)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's ’s rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' ’ and accountants' ’ fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) BACK resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's ’s cost and expense) with such information or data that is in such Tax Indemnitee's ’s control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Samples: Note Purchase Agreement (Continental Airlines Inc /De/)
Contest. (a) If a written claim is made Tenant may, if it shall so desire, contest the validity or amount of any tax or assessment against a Tax Indemnitee for Taxes with respect to the Leased Premises, in which Owner could be liable for event Tenant may defer the payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing thereof during the pendency of such claim (provided, that failure to contest if applicable law so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Ownerpermits; provided, thathowever, in that Tenant shall not allow any tax lien to be foreclosed on the case Leased Premises, and, unless such tax is paid under protest, not later than ten (10) days prior to the date the same shall become delinquent, Tenant shall have (i) deposited with a bank or trust company acceptable to Landlord, an amount sufficient to pay such contested item(s) together with the interest and penalties thereon (as reasonably estimated by Landlord) with written instructions to said bank or trust company to apply such amount to the payment of a claim made against a Tax Indemnitee, if such Tax Indemnitee item(s) when the amount thereof shall be finally fixed and determined (with the remainder to be paid to Tenant), or (ii) provided Landlord with other reasonably acceptable security. Landlord will, at the request of Tenant, cooperate with Tenant in contesting any such taxes or assessments; provided, however, there shall be no expense to Landlord in such cooperation. In the event Landlord is required by law to take join in any action prior or proceeding taken by Tenant to the end contest any such taxes or assessments, Tenant shall indemnify, defend and hold Landlord and Landlord's trustees, beneficiaries, heirs, successors, assigns, agents, employees and representatives harmless from any and all costs, fees (including, but not limited to attorneys' fees), expenses, claims, judgments, orders, liabilities, losses or damage arising out of such 30-day periodaction or proceeding. If, such Tax Indemnitee shallat any time, in such the judgment of Landlord reasonably exercised, it shall become necessary so to do, Landlord, after written notice to OwnerTenant, may, under protest if so inform Ownerrequested by Tenant, and pay such Tax Indemnitee shall take no action for monies as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested prevent the transfer of the Leased Premises to the Xxxxx County Treasurer or the sale of the Leased Premises or any part thereof, or foreclosure of the lien created thereon by Owner in writing within 30 days after its receipt of such noticeitem, and such Tax Indemnitee shallamount shall become immediately due and payable by Tenant to Landlord, together with interest thereon at the expense rate of Owner fifteen percent (including15%) per annum, without limitationand shall constitute additional rent hereunder, all reasonable costs, expenses or at Tenant's option and reasonable attorneys' at Tenant's sole cost and accountants' fees and disbursements)expense, in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment lieu thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to Tenant shall obtain a refund thereof lien release bonds in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals amounts equal to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct claims of any such proceeding and shall provide liens or as otherwise required by applicable law to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In obtain the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress full release of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c))liens.
Appears in 1 contract
Contest. (a) If a written claim is shall be made against a Tax any Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a any Tax Indemnitee makes a determination that a Tax is due in excess of $50,000 for which Owner could have an indemnity obligation hereunderLessee would be obligated to indemnify pursuant to Section 7.01, such Tax Indemnitee shall promptly give Owner notify Lessee after such Indemnitee becomes aware of such action and in any event within thirty (30) days after receipt by such Indemnitee of a written claim (but failure to notify Lessee within such thirty (30) day period shall not impair such Indemnitee’s right to indemnification under Section 7.01 except to the extent that Lessee’s rights to contest such claim shall have been materially impaired by such failure) and shall, to the extent permitted by Applicable Law, not pay the claim before the earlier of (i) thirty (30) days after giving Lessee notice and (ii) receipt of Lessee’s response. Subject to the conditions specified in writing this Section 7.04, if Lessee shall so request within the period referred to in the foregoing sentence, such Indemnitee shall, at Lessee’s expense reimbursed to such Indemnitee on an After-Tax Basis, contest the imposition, validity or applicability of such Tax. The ultimate control over the conduct of such contest (including the right to forgo any and all administrative appeals, proceedings, hearings and conferences in respect of such claim and the right to select the forum for such contest and determine whether any such contest shall be by (i) resisting payment of such Tax, (ii) paying such Tax under protest or (iii) paying such Tax and seeking a refund thereof) shall remain with such Indemnitee; provided, however, that failure such Indemnitee shall keep Lessee or its counsel reasonably informed as to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require the progress thereof, consult with Lessee within a contest of such claim) and shall take no reasonable period before any significant action with respect thereto is taken or omitted and consider in good faith any suggestions made by Lessee or its counsel; provided further that, subject to Indemnitee’s waiver rights described in Section 7.04(b) hereof, and provided that all conditions set forth in this Section 7.04 for the continuation of a contest shall then be satisfied, no such claim proceedings or litigation shall be settled or otherwise compromised without the prior written consent of Owner for 30 days following Lessee. If such Indemnitee so elects, such contest shall be conducted by Lessee in the receipt name of such notice by Owner; provided, that, Indemnitee (subject to the preceding proviso) and in the case of a claim made against a Tax Indemnitee, if no event shall such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall or Lessee be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right permitted to contest or to continue to contest, as the case may be, the imposition of any Tax for which Lessee is obligated to indemnify pursuant to Section 7.01 unless (BA) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner Lessee shall have agreed to keep pay such information confidential other than to the extent necessary Indemnitee on demand and shall have paid as so demanded all reasonable costs and expenses that such Indemnitee may incur in order to contest the claim) furnish Owner connection with copies of any requests for information from any Taxing Authority relating to contesting such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner claim (including, without limitation, all reasonable costs, expenses expenses, losses, reasonable legal and reasonable attorneys' and accountants' accounting fees and disbursements)) on an After-Tax Basis, (B) Owner Participant shall have determined in good faith that the action to be taken will not, and the Indenture Trustee, at the direction of a Majority Interest of Noteholders, shall not have notified Lessee that it has determined in its good faith discretion that the action to be taken will, result in (x) any material risk of a Lien (including without limitation, a Lien superior to the Indenture Trustee’s Lien under the Indenture) on, or of sale, forfeiture or loss of Buyer’s Transponders or any part thereof or any interest therein (except if Lessee shall have made provision to protect the interests of Owner Participant, Indenture Trustee and the Noteholders in a manner satisfactory to such Persons) or (y) the possible imposition of criminal or other similar XM-4 Participation Agreement sanctions on any Indemnitee, (C) if such contest (orshall be conducted in a manner requiring the payment of the claim, if permitted by applicable law, allow Owner Lessee shall have advanced on an interest-free basis an amount equal to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by claim which such Indemnitee shall have elected to pay and Lessee shall have indemnified the Indemnitee in a manner satisfactory to the Indemnitee, for any adverse tax consequences from the receipt, or interest-free nature, of such advance, and (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (IIID) if the an Event of Default or Bankruptcy Default shall have occurred and be continuing, Lessee shall have posted adequate security securing payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, of the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals subject to the United States Supreme Court. If contest and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent expenses of the Owner (except as contemplated by Section 8.3.4(b) or (c))contest in a manner reasonably acceptable to such Indemnitee.
Appears in 1 contract
Samples: Participation Agreement (Xm Satellite Radio Holdings Inc)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's ’s rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' ’ and accountants' ’ fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other PARTICIPATION AGREEMENT (2011-1) issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's ’s cost and expense) with such information or data that is in such Tax Indemnitee's ’s control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Contest. (a) If a written claim is made against a and received by any Tax Indemnitee for Taxes with respect any Tax for which Lessee may be required to which Owner could be liable for indemnify such Tax Indemnitee or make a payment or indemnity hereunderunder this Schedule 6 (including a written notice of such proceeding), or if a Tax Indemnitee makes a determination that a Tax is due for which Owner Lessee could have an indemnity obligation hereunder, such Tax Indemnitee shall notify Lessee promptly give Owner notice in writing of such claim (providedincluding with such notice a copy of such claim), that but the failure to so notify Owner shall not relieve Owner affect any obligation of its indemnity obligations Lessee under this Schedule 6 provided that nothing contained herein shall prevent Lessee from making a claim for any damages it suffers with respect to an obligation to indemnify such Tax Indemnitee hereunder unless solely as a result of such failure to notify effectively forecloses Owner's rights to require a contest of by such claim) and Tax Indemnitee. The Tax Indemnitee shall not take no any action with respect to such claim or Tax without the prior written consent of Owner Lessee for 30 days following the receipt of such notice by Owner; providedLessee, provided that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law Law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to OwnerLessee, so inform OwnerLessee, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(AA)(I) the failure to so pay the Tax would result in substantial any civil penalties (unless immediately reimbursed by OwnerLessee) and the act of paying the Tax would not materially prejudice the right to contest or (BII) the failure to so pay would result in criminal penalties and (iiB) such Tax Indemnitee shall take any action so required act in connection with so paying the Tax in a the manner that is in its reasonable good faith opinion the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall at Lessee’s expense (provided, provided that Owner Lessee shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner Lessee with copies of the relevant portions of any requests for information from any Taxing Authority Government Entity relating to such Taxes with respect to which Owner Lessee may be required to indemnify hereunder. If requested by Owner Lessee in writing within 30 days after its receipt of such noticewriting, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith shall contest (or, if permitted by applicable law, allow Owner Lessee to contest, to the extent provided in the next paragraph) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes claim by (Iv) resisting payment thereof, (IIw) not paying the same except under protest if protest is necessary and proper or proper, (IIIx) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal (y) appealing any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the highest court in South Africa or the United States Supreme Court. If Court and/or (z) taking such other reasonable action as is reasonably requested by Lessee from time to time, provided that (1) Lessee shall reimburse such Tax Indemnitee on demand for all reasonable expenses incurred by such Tax Indemnitee for the purpose of conducting such contest, including, without limitation, any attorney, accountant’s or advisory fees, (2) before the commencement of any administrative or judicial action, Lessee shall acknowledge its obligation in writing to indemnify such Tax Indemnitee for the amount of Tax in controversy if the contest is unsuccessful, provided that Lessee shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly and unambiguously indicates that the basis for the resolution is such that the Lessee has no liability under this Schedule 6 with respect to such Tax, (3) Lessee provides and pays for an opinion of independent tax counsel mutually acceptable to Lessee and such Tax Indemnitee that there is a reasonable basis for the contest, (4) there is no material risk of forfeiture of the Aircraft as a result of such contest, and (5) if such contest involves paying the Tax claimed and claiming a refund thereof, Lessee (A) shall have advanced to such Tax Indemnitee the amount of such Tax (to the extent indemnified hereunder) on an interest-free basis and (B) shall have agreed to indemnify such Tax Indemnitee for any adverse tax consequences of such interest-free loan (in the case of clauses (A) and (B), determining such amount after taking into account any Tax Savings or other reduction in Taxes referred to in the penultimate paragraph of Section 5 of this Schedule 6 resulting from any imputed interest deduction arising from such interest free advance from Lessee). If (i) in the case of an indemnified Tax other than an income or similar Tax the Tax Indemnitee is able to separate (at the cost and expense of Lessee) the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements Documents without, in the sole good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner Lessee to control the conduct of any such proceeding (a “Lessee-Controlled Contest”) without foregoing its right to participate and shall (at the cost and expense of Lessee) provide to Owner (at Owner's cost and expense) with Lessee such information or and data that is in such Tax Indemnitee's ’s control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled and that is not considered by a Tax Indemnitee, such Tax Indemnitee in ggod faith to be proprietary or confidential. The Tax Indemnitee and Lessee shall consult with Owner each other and each other’s counsel in good faith regarding the manner of contesting such any claim hereunder and shall keep Owner each other reasonably informed regarding the progress of such contest. A Notwithstanding any of the foregoing, if any Tax Indemnitee shall not fail release, waive, compromise, or settle any claim (which the Tax Indemnitee shall be free to take any action expressly required do) which may be indemnifiable by Lessee pursuant to this Section 8.3.4 (includingSchedule 6 without the written permission of Lessee, without limitation, any action regarding any appeal of an adverse determination Lessee’s obligation to indemnify such Tax Indemnitee with respect to any such claim (and all directly related claims and claims based on the outcome of such claim) shall terminate, and such Tax Indemnitee shall promptly repay to Lessee any amount previously paid or settle or compromise any advanced to such Tax Indemnitee with respect to such claim without the prior written consent (other than amounts described in clause (1) of the Owner (except as contemplated second preceding paragraph to the extent previously incurred). In addition, if a Tax Indemnitee receives an award of attorney’s fees in a contest for which Lessee has paid an allocable portion of expenses, the Tax Indemnitee shall promptly pay to Lessee that portion of the award paid by Section 8.3.4(b) or (c))Lessee that relates to the issues contested under this Schedule 6.
Appears in 1 contract
Samples: Lease Agreement (Aircastle LTD)
Contest. (a) If a written claim is made against a Tax Indemnitee or Lessee for any Taxes with respect for which Lessee is obligated to which Owner could be liable for payment or indemnity hereundera Tax Indemnitee, or if notice is received by a Tax Indemnitee makes or Lessee from a determination Government Entity that such a Tax claim is due for which Owner could have an indemnity obligation hereundergoing to made, such Tax Indemnitee shall notify Lessee, or Lessee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to as the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner case may be required to indemnify hereunderbe. If requested by Owner Lessee in writing within 30 thirty (30) days after its such notification, the Tax Indemnitee agrees, upon receipt of such notice, such Tax Indemnitee shall, indemnity satisfactory to it and at the expense of Owner Lessee (including, including without limitation, all reasonable costs, expenses expenses, losses, legal and reasonable attorneys' and accountants' accounting fees and disbursements), penalties and interest) in good faith to contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes in the forum selected by such Tax Indemnitee by (IA) resisting payment thereofthereof if practicable, (II) not paying the same except under protest if protest is necessary and proper or (IIIB) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or and judicial proceedingproceedings; provided, however, no Tax Indemnitee shall be required to take any action to contest a claim unless (1) Lessee provides the Tax Indemnitee, together with such written request, with an opinion of independent tax counsel reasonably satisfactory to the Tax Indemnitee both as to counsel and substance, to the effect that there is a meritorious basis for such contest, (2) such action to be taken will not result in the risk of an imposition of criminal penalties or, in Lessor’s reasonable judgment, any risk of any sale, forfeiture or loss of the Aircraft, any Engine or any Part, or any interest in any thereof, (3) no Default shall have occurred and be continuing, (4) if Lessee determines reasonably to pay such Tax and seek a refund, Lessee has advanced the amount of such Tax to make such payment, (5) the amount of the Taxes at issue exceeds US$5,000, and (6) Lessee shall have provided ALA MSN 2830 – Global Crossing Airlines the Tax Indemnitee with a written acknowledgment of liability if and to the extent that the contest is not successful. If requested to do so Upon written request of Lessee and provided that the Tax Indemnitee determines in good faith that no Tax Indemnitee will be adversely affected by OwnerLessee’s conduct of such contest, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that allow Lessee to prosecute such tax contest in the name of the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue (or issues from other issues arising if possible in the same administrative name of Lessee) by granting an appropriate power of attorney or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of other authorization and such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that other action as is reasonably necessary to conduct such contest. In the case necessary, or, upon written request of a contest controlled by a Tax IndemniteeLessee, such Tax Indemnitee shall consult with Owner Lessee, keep Lessee informed regarding the tax contest and consider in good faith regarding the manner recommendations of contesting such claim and shall keep Owner reasonably informed regarding Lessee as to the progress prosecution of such the tax contest. A If the Tax Indemnitee shall not fail obtain a refund of all or any part of such Taxes for which Lessee has paid an indemnity hereunder or advanced funds to take the Tax Indemnitee as described above, the Tax Indemnitee shall pay Lessee the amount of such refund, after deducting all out-of-pocket costs and expenses that were incurred by Lessor or Tax Indemnitee in connection therewith. If in addition to such refund an amount representing expenses, attorney’s fees or interest on the amount of such refund is received, Lessee shall be paid such expenses, attorney’s fees and that proportion of such interest which is fairly attributable to taxes, fees and other charges paid by Lessee prior to the receipt of such refund; provided, however, that no amount shall be payable under this or the preceding sentence during any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c))period in which a Default is continuing.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Global Crossing Airlines Group Inc.)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sue for a refund prior to priox xo the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Samples: Participation Agreement (Continental Airlines Inc /De/)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's ’s rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sue for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' ’ and accountants' ’ fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's ’s cost and expense) with such information or data that is in such Tax Indemnitee's ’s control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner that Lessee could be liable to pay or indemnify for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination determines that a Tax is due for which Owner and that Lessee could have an indemnity obligation for that Tax hereunder, such Tax Indemnitee shall promptly give Owner notice notify Lessee in writing of such claim (providedPROVIDED, that failure so to so notify Owner Lessee shall not relieve Owner Lessee of its indemnity obligations hereunder unless such the failure to notify effectively forecloses OwnerLessee's rights to require a contest of such claim) ), and shall take no action with respect to such claim without the Lessee's prior written consent of Owner for 30 days following the Lessee's receipt of such notice by Ownernotice; providedPROVIDED, that, in the case of a claim made against a Tax Indemnitee, if applicable Law requires such Tax Indemnitee shall be required by law to take action prior to before the end of such 30-day period, such Tax Indemnitee shall, in such notice to OwnerLessee, so inform OwnerLessee, and such Tax Indemnitee shall take no action for as long as it is legally able to do so avoid taking action (it being understood that and a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sxx for a refund prior to before the end of such 30-day period if (i)(A1)(aa) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by OwnerLessee) and the act of paying the Tax would not materially prejudice the right to contest contest, or (Bbb) the failure to so pay would result in criminal penalties penalties, and (ii2) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, provided that Owner Lessee shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner Lessee with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Lessee may be required to indemnify hereunder. If requested by Owner Lessee in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the Lessee's expense of Owner (including, without limitation, including all reasonable costs, expenses expenses, and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner Lessee to contest) through appropriate administrative and judicial proceedings the validity, applicability applicability, or amount of such Taxes by (Ix) resisting payment thereof, (IIy) not paying the same Taxes except under protest if protest is necessary and proper proper, or (IIIz) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or or judicial proceeding. If requested to do so by OwnerLessee, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent that the Tax Indemnitee is able to separate the contested issue or issues issue(s) from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, Transactions without (in the good faith judgment of such Tax Indemnitee, 's good faith judgment) adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner Lessee to control the conduct of any such proceeding and shall provide to Owner Lessee (at OwnerLessee's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is and reasonably necessary to conduct such contest (other than such Tax Indemnitee's federal income Tax returns) in which case Lessee shall keep such Tax Indemnitee reasonably informed concerning the progress of such contest. In If the case of a contest is being controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner Lessee in good faith regarding the manner of contesting such claim and shall keep Owner Lessee reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 ss. 9.3.4 (including, without limitation, any including anY action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the Lessee's prior written consent of the Owner (except as contemplated by Section 8.3.4(bss. 9.3.4(b) or (c)).
Appears in 1 contract
Samples: Participation Agreement (Amtran Inc)
Contest. (ai) If a written claim is made against a Tax Indemnitee for Taxes with respect to which LATAM or Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which LATAM or Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give the Owner and LATAM notice in writing of such claim (provided, that failure to so notify the Owner or LATAM shall not relieve LATAM or Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses the Owner's ’s or LATAM’s rights to require a contest of such claimin which case the Owner and LATAM are relieved of their indemnity obligations to the extent their right to contest is foreclosed) and shall take no action with respect to such claim without the prior written consent of Owner LATAM for 30 days following the receipt of such notice by Ownerthe Owner and LATAM; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Ownerthe Owner and LATAM, so inform Ownerthe Owner and LATAM, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by LATAM or Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties penalties, and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that the Owner and LATAM shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish the Owner and LATAM with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which LATAM or Owner may be required to indemnify hereunder. If requested by the Owner and LATAM in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner LATAM (including, without limitation, all reasonable costs, expenses and reasonable attorneys' ’ and accountants' ’ fees and disbursements), in good faith contest (or, if permitted by applicable lawApplicable Law, allow LATAM or Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Ownerthe Owner and LATAM, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme CourtCourt or the highest relevant court of Chile. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit LATAM or Owner to control the conduct of any such proceeding and shall provide to LATAM or Owner (at LATAM or Owner's ’s cost and expense) with such information or data that is in such Tax Indemnitee's ’s control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with LATAM and Owner in good faith regarding the manner of contesting such claim and shall keep LATAM and Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 4.04(d) (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner LATAM (except as contemplated by Section 8.3.4(b4.04(d)(ii) or (c4.04(d)(iii)).
Appears in 1 contract
Samples: Participation Agreement (Latam Airlines Group S.A.)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner that Lessee could be liable to pay or indemnify for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination determines that a Tax is due for which Owner and that Lessee could have an indemnity obligation for that Tax hereunder, such Tax Indemnitee shall promptly give Owner notice notify Lessee in writing of such claim (provided, that failure so to so notify Owner Lessee shall not relieve Owner Lessee of its indemnity obligations hereunder unless such the failure to notify effectively forecloses OwnerLessee's rights to require a contest of such claim) ), and shall take no action with respect to such claim without the Lessee's prior written consent of Owner for 30 days following the Lessee's receipt of such notice by Ownernotice; provided, that, in the case of a claim made against a Tax Indemnitee, if applicable Law requires such Tax Indemnitee shall be required by law to take action prior to before the end of such 30-day period, such Tax Indemnitee shall, in such notice to OwnerLessee, so inform OwnerLessee, and such Tax Indemnitee shall take no action for as long as it is legally able to do so avoid taking action (it being understood that and a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sxx for a refund prior to before the end of such 30-day period if (i)(A1)(aa) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by OwnerLessee) and the act of paying the Tax would not materially prejudice the right to contest contest, or (Bbb) the failure to so pay would result in criminal penalties penalties, and (ii2) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, provided that Owner Lessee shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner Lessee with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Lessee may be required to indemnify hereunder. If requested by Owner Lessee in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the Lessee's expense of Owner (including, without limitation, including all reasonable costs, expenses expenses, and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner Lessee to contest) through appropriate administrative and judicial proceedings the validity, applicability applicability, or amount of such Taxes by (Ix) resisting payment thereof, (IIy) not paying the same Taxes except under protest if protest is necessary and proper proper, or (IIIz) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or or judicial proceeding. If requested to do so by OwnerLessee, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent that the Tax Indemnitee is able to separate the contested issue or issues issue(s) from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, Transactions without (in the good faith judgment of such Tax Indemnitee, 's good faith judgment) adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner Lessee to control the conduct of any such proceeding and shall provide to Owner Lessee (at OwnerLessee's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is and reasonably necessary to conduct such contest (other than such Tax Indemnitee's federal income Tax returns) in which case Lessee shall keep such Tax Indemnitee reasonably informed concerning the progress of such contest. In If the case of a contest is being controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner Lessee in good faith regarding the manner of contesting such claim and shall keep Owner Lessee reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 ss. 9.3.4 (including, without limitation, including any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the Lessee's prior written consent of the Owner (except as contemplated by Section 8.3.4(bss. 9.3.4(b) or (c)).
Appears in 1 contract
Samples: Participation Agreement (Amtran Inc)
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner Lessee could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner Lessee could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner Lessee notice in writing of such claim (provided, that failure to so notify Owner Lessee shall not relieve Owner Lessee of its indemnity obligations hereunder unless such failure to notify effectively forecloses OwnerLessee's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner Lessee for 30 days following the receipt of such notice by OwnerLessee; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to OwnerLessee, so inform OwnerLessee, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and sue xxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by OwnerLessee) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner Lessee shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner Lessee with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner Lessee may be required to indemnify hereunder. If requested by Owner Lessee in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner Lessee (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner Lessee to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by OwnerLessee, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner Lessee to control the conduct of any such proceeding and shall provide to Owner Lessee (at OwnerLessee's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner Lessee in good faith regarding the manner of contesting such claim and shall keep Owner Lessee reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 9.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner Lessee (except as contemplated by Section 8.3.4(b9.3.4(b) or (c)).
Appears in 1 contract
Contest. (a) If a written claim is made against a Tax Indemnitee for Taxes with respect to which Owner could be liable for payment or indemnity hereunder, or if a Tax Indemnitee makes a determination that a Tax is due for which Owner could have an indemnity obligation hereunder, such Tax Indemnitee shall promptly give Owner notice in writing of such claim (provided, that failure to so notify Owner shall not relieve Owner of its indemnity obligations hereunder unless such failure to notify effectively forecloses Owner's rights to require a contest of such claim) and shall take no action with respect to such claim without the prior written consent of Owner for 30 days following the receipt of such notice by Owner; provided, that, in the case of a claim made against a Tax Indemnitee, if such Tax Indemnitee shall be required by law to take action prior to the end of such 30-day period, such Tax Indemnitee shall, in such notice to Owner, so inform Owner, and such Tax Indemnitee shall take no action for as long as it is legally able to do so (it being understood that a Tax Indemnitee shall be entitled to pay the Tax claimed and xxx sxx for a refund prior to the end of such 30-day period if (i)(A) the failure to so pay the Tax would result in substantial penalties (unless immediately reimbursed by Owner) and the act of paying the Tax would not materially prejudice the right to contest or (B) the failure to so pay would result in criminal penalties and (ii) such Tax Indemnitee shall take any action so required in connection with so paying the Tax in a manner that is the least prejudicial to the pursuit of the contest). In addition, such Tax Indemnitee shall (provided, that Owner shall have agreed to keep such information confidential other than to the extent necessary in order to contest the claim) furnish Owner with copies of any requests for information from any Taxing Authority relating to such Taxes with respect to which Owner may be required to indemnify hereunder. If requested by Owner in writing within 30 days after its receipt of such notice, such Tax Indemnitee shall, at the expense of Owner (including, without limitation, all reasonable costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest (or, if permitted by applicable law, allow Owner to contest) through appropriate administrative and judicial proceedings the validity, applicability or amount of such Taxes by (I) resisting payment thereof, (II) not paying the same except under protest if protest is necessary and proper or (III) if the payment is made, using reasonable efforts to obtain a refund thereof in an appropriate administrative and/or judicial proceeding. If requested to do so by Owner, the Tax Indemnitee shall appeal any adverse administrative or judicial decision, except that the Tax Indemnitee shall not be required to pursue any appeals to the United States Supreme Court. If and to the extent the Tax Indemnitee is able to separate the contested issue or issues from other issues arising in the same administrative or judicial proceeding that are unrelated to the transactions contemplated by the Operative Agreements without, in the good faith judgment of such Tax Indemnitee, adversely affecting such Tax Indemnitee, such Tax Indemnitee shall permit Owner to control the conduct of any such proceeding and shall provide to Owner (at Owner's cost and expense) with such information or data that is in such Tax Indemnitee's control or possession that is reasonably necessary to conduct such contest. In the case of a contest controlled by a Tax Indemnitee, such Tax Indemnitee shall consult with Owner in good faith regarding the manner of contesting such claim and shall keep Owner reasonably informed regarding the progress of such contest. A Tax Indemnitee shall not fail to take any action expressly required by this Section 8.3.4 (including, without limitation, any action regarding any appeal of an adverse determination with respect to any claim) or settle or compromise any claim without the prior written consent of the Owner (except as contemplated by Section 8.3.4(b) or (c)).
Appears in 1 contract
Samples: Participation Agreement (Continental Airlines Inc /De/)
