Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, the validity, or applicability to the Premises, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that: (i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest; (ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest; (iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and (iv) Tenant shall keep Landlord advised as to the status of such proceedings. (b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 2 contracts
Sources: Office Lease, Office Lease (2U, Inc.)
Contests. For purposes of this Agreement, a “Contest” is any audit, court proceeding or other dispute with respect to any tax matter that affects a Target. Unless the Buyer has previously received written notice from the Seller of the existence of such Contest, the Buyer shall give written notice to the Seller of the existence of any Contest relating to a tax matter that is the Seller’s responsibility under Section 8.2 within ten (a10) Tenant maydays from the receipt by the Buyer of any written notice of such Contest, but no failure to give such notice shall relieve the Seller of any liability hereunder. Unless the Seller has previously received written notice from the Buyer of the existence of such Contest, the Seller shall give written notice to the Buyer of the existence of any Contest for which the Buyer has responsibility within ten (10) days from the receipt by the Seller of any written notice of such Contest. The Buyer, on the one hand, and the Seller, on the other, agree, in each case at no cost to the other party, to cooperate with the other and the other’s Representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall include, but not be limited to, making available to the other party, during normal business hours, all books, records, Tax Returns, documents, files, other information (including working papers and schedules), officers or employees (without substantial interruption of employment) or other relevant information necessary or useful in connection with any Contest requiring any such books, records and files. The Seller shall, at its election, have the right to represent a Target’s interests in any Contest relating to a Tax matter arising in a period ending on or before the Effective Date, to employ counsel of its choice at its expense contestand to control the conduct of such Contest, by appropriate proceedings prosecuted diligently including settlement or other disposition thereof; provided, however, that the Buyer shall have the right to consult with the Seller regarding any such Contest that may affect such Target for any periods ending after the Effective Date at the Buyer’s own expense and in good faithprovided, the validityfurther, that any settlement or applicability to the Premises, other disposition of any Requirement such Contest may only be with the consent of the Buyer, which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall consent will not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsunreasonably withheld.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Marriott International Inc /Md/)
Contests. (a) Tenant mayAfter the Closing Date, at its expense contestBuyers shall notify Sellers in writing within ten (10) days of receiving notice of a proposed assessment or the commencement of any Tax audit or administrative or judicial Proceeding or of any demand or claim on Buyers or the Cinemex Companies or Symphony, by appropriate proceedings prosecuted diligently and in good faithwhich, if determined adversely to such party or after the validitylapse of time, or applicability could have an adverse effect on Sellers. Such notice shall contain factual information (to the Premises, extent known to Buyers and the Cinemex Companies or Symphony or any Related Person of such party) briefly describing the asserted Tax liability and shall include copies of any Requirement with which Tenant is obligated notice or other document received from any Taxing Authority in respect of any such asserted Tax liability. The failure of Buyers to comply pursuant provide Sellers such notice shall not release Sellers from their obligations under this Agreement except to the provisions of this Lease, and Landlord shall cooperate with Tenant in extent Sellers have been materially prejudiced by the failure to receive such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsnotice.
(b) Without limiting Except as provided below, in the application case of subsection a Tax audit or administrative or judicial Proceeding (a)(ia “Contest”) above theretothat relates to Taxable Periods ending on or prior to the Closing Date or to any Straddle Period pursuant to which Contest Sellers could be liable for indemnification or could be entitled to a Tax refund from a Taxing Authority pursuant to this Agreement, Landlord Sellers shall have the right, at their expense, to participate in or, at the option of Buyers, control the conduct of such Contest; provided that, even if Buyers opt to permit Sellers to control the conduct of such Contest, Sellers (i) shall permit Buyers to participate in the Proceeding and to monitor the progress of such Proceeding, and (ii) if such settlement or compromise would have an adverse effect on the Cinemex Companies, Symphony or Buyers, individually or in the aggregate, shall not settle or otherwise compromise such Proceeding without the prior written consent of Buyers (which consent shall not be unreasonably withheld, delayed or conditioned). Notwithstanding the foregoing, Sellers shall not have the right to control any Contest pursuant to which Sellers would reasonably be expected to be entitled to a Tax refund if the outcome of such contest could have an adverse effect on the Cinemex Companies, Symphony, or Buyers, individually or in the aggregate. In the case of a Contest that relates to the income tax returns of any of the Cinemex Companies or Symphony (an “Income Tax Contest”) that relates to Taxable Periods ending on or prior to the Closing Date, pursuant to which Contest Sellers could be liable for indemnification or could be entitled to a Tax refund from a Taxing Authority pursuant to this Agreement, Sellers shall have the right, at their expense, to control the conduct of such Income Tax Contest, and, pursuant to Section 11.4, Buyers will cause Cinemex Companies to provide Sellers with reasonable assistance and access to the books and records of such Cinemex Company or Symphony as it relates to the Income Tax Contest, provided that Sellers (i) shall permit Buyers to participate in the Income Tax Contest and to monitor the progress of such Contest and (ii) if such settlement or compromise would have an adverse effect on the Cinemex Companies, Symphony or Buyers, individually or in the aggregate, shall not settle or otherwise compromise such Income Tax Contest without the prior written consent of Buyers (which consent shall not be unreasonably withheld, delayed or conditioned). Notwithstanding the foregoing, Sellers shall not be entitled to control any Contest if such Contest, alone or in conjunction with other Contests, could reasonably be expected to result in Losses that exceed the Tax Loss Cap. Any Tax adjustment (including restatement by inflation, surcharges, penalties and fines) assessed as a consequence of the conclusion of a Tax audit or administrative or judicial proceeding or of any demand or claim on Buyers or the Cinemex Companies corresponding to a taxable period that (A) ends on or before the Closing Date or (B) is allocable to the portion of such Straddle Period ending on and including the Closing Date, (x) shall be deemed paid by Sellers to Buyers if the Tax adjustment requires payment of additional Taxes, subject to prosecution for the limitations set forth in Section 8.5 as if such additional Taxes were Losses subject to indemnification under Section 8.4(i) and (y) shall be paid by or at the direction of Buyers to Sellers if the Tax adjustment results in a crime within the meaning credit or refund of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoTaxes.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Amc Entertainment Inc), Stock Purchase Agreement (Marquee Holdings Inc.)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, the validity, or applicability to the Premises, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord Buyer and Seller shall not be subject to criminal penalty promptly notify the other Party in writing upon receipt of written notice of any pending or to prosecution for a crime nor shall the Premises threatened audit, notice of deficiency, examination, assessment or any part thereof be subject other administrative proceeding or court proceedings (“Audit”) which may affect any Tax liability for which the other Party is liable pursuant to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;this Section 5.12.
(ii) Tenant shall defendIn the case of any Audit that relates solely to Taxes for which Seller is liable under Section 5.12(a), indemnify Seller shall, at its option, have the sole right to (A) represent the interests of the Acquired Companies in such Audit; (B) employ counsel of its choice in connection therewith; and hold harmless Landlord from and against any and all actions(C) settle such Audit; provided, proceedingshowever, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason if settlement or compromise of such non-compliance Audit reasonably could be expected to adversely affect Buyer or contest;the Acquired Companies, then Seller shall not settle or compromise any asserted Tax liability without the prior written consent of Buyer (such consent not to be unreasonably withheld, delayed or conditioned).
(iii) Buyer shall have the right to (A) control all other Audits, including all Audits involving any Post-Closing Tax Period (including any Straddle Period); (B) employ counsel of its choice; and (C) settle such non-compliance or contest Audit; provided, however, that Buyer shall not constitute or result afford Seller the opportunity to participate, as may reasonably be requested by Seller, with Buyer in contesting any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as Tax claim solely to the status extent such Tax claim relates to Taxes that would give rise to a Seller indemnity obligation hereunder; and provided further that Buyer may not settle or compromise any asserted Tax liability that would give rise to a Seller indemnity obligation hereunder without the prior written consent of Seller (such proceedingsconsent not to be unreasonably withheld, delayed or conditioned).
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (API Technologies Corp.)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently Purchaser and in good faith, the validity, Seller Representative agree to give prompt notice to each other of any proposed adjustment to Taxes for any periods of the Company ending on or applicability prior to the Premises, of Closing Date or any Requirement with which Tenant is obligated to comply pursuant to Pre-Closing Partial Period. Purchaser and the provisions of this Lease, and Landlord Seller Representative shall cooperate with Tenant each other in the conduct of any audit or other proceeding involving the Company for such proceedingsperiods and each party may participate at its own expense. Seller Representative shall have the right to control the conduct of any such audit or proceeding for which the Sellers agree that any resulting Tax allocable to any period prior to and including the Closing Date is covered by the indemnity set forth in Section 13.8 of this Agreement, (such audit or proceeding, a "Seller's Contest") provided that:
: (i) Landlord Seller Representative shall keep Purchaser informed regarding the progress and substantive aspects of any Seller's Contest and (ii) Seller Representative shall not compromise or settle any Seller's Contest if such compromise or settlement would have the effect of (x) increasing any Tax liability of the Company or (y) otherwise materially and adversely affect any item or Tax attribute of the Company, in each case for any taxable period ending after the Closing Date, without obtaining Purchaser's consent, which consent shall not be subject unreasonably withheld. If Seller Representative chooses to criminal penalty or direct a Seller's Contest, Purchaser shall cause powers of attorney authorizing Seller Representative to prosecution represent the Company before the relevant taxing authority and such other documents as are reasonably necessary for a crime nor shall Seller Representative to control the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation conduct of any superior lease or superior mortgageSellers' Contest, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition consistent with the terms of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedings.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.this Section 13.5
Appears in 2 contracts
Sources: Stock Purchase Agreement (Usinternetworking Inc), Stock Purchase Agreement (Usinternetworking Inc)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validityPurchaser shall promptly notify the Seller in writing of any written notice of the commencement of any Action or proposed assessment or Claim made against, or applicability to with respect to, the PremisesPurchaser, of its Affiliates or the Company or any Requirement with Subsidiary which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject relates to criminal penalty a Pre-Closing Period or to prosecution for a crime nor shall Straddle Period of the Premises Company or any part thereof be subject to being condemned Subsidiary or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as determined adversely to the status of taxpayer, could be grounds for indemnification under this Article VII (a “Tax Action”); provided, however, that the failure to give such proceedingsnotice will not affect the Purchaser’s right to indemnification under this Article VII except to the extent that such failure prejudices the Seller.
(b) Without limiting In the application case of subsection a Tax Action (a)(iother than a Tax Action that relates to a Straddle Period with respect to a Stand-Alone Return), the Seller (and its authorized representatives) above theretoshall have the right, Landlord shall be deemed subject at its expense, to prosecution for control the conduct of the Tax Action; the Purchaser (and its authorized representatives) may also, at its expense, participate in, but not control, any such Tax Action that is solely related to a crime within the meaning of said subsectionStand-Alone Return and, if Landlordthe Seller does not assume the defense of a Tax Action, the Purchaser (or its authorized representative) may defend the same in such manner as it may deem appropriate. In the case of a Tax Action that relates to a Straddle Period with respect to a Stand-Alone Return, the Purchaser (and its authorized representatives) shall have the right, at its expense, to control the Tax Action; the Seller (and its authorized representatives) may also, at its expense, participate in, but not control, any officersuch Tax Action and, director, partner, member, principal if the Purchaser (or employee of Landlord individually, is charged with a crime its authorized representative) does not assume the defense of any kind such Tax Action, the Seller (and its authorized representatives) may defend the same in such manner as it may deem appropriate.
(c) Notwithstanding anything to the contrary in this Section 7.04, with respect to any taxable period that begins before the Closing Date, neither the Purchaser nor the Seller shall enter into any compromise or degree whateveragree to settle any Tax Action which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, whether by service which consent may not be unreasonably withheld, conditioned or delayed. The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, in the defense against or compromise of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoany Tax Action.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Crown Castle International Corp), Stock Purchase Agreement (Quanta Services Inc)
Contests. (a) Tenant mayUpon receipt by Buyer, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, the validity, any Acquired Company or applicability to the Premises, any Affiliate thereof of a written notice of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Leasepending or threatened Tax audits, and Landlord shall cooperate with Tenant in such examinations, protest proceedings, provided that:
assessments or claims that could give rise to a claim for indemnity under Section 6.03 (i) Landlord an “Indemnifiable Tax Liability”), Buyer shall not be subject promptly give written notice thereof to criminal penalty or to prosecution for a crime nor shall Parent (the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedings“Tax Claim Notice”).
(b) Subject to Section 6.06(c), Sellers may elect to control, through their Representatives, and at their expense, the compromise or contest, either administratively or in the courts, of any Indemnifiable Tax Liability. If Sellers elect to so represent the interests of an Acquired Company or Buyer, they shall within thirty (30) Business Days of delivery of any Tax Claim Notice (or reasonably sooner, if the nature of the Indemnifiable Tax Liability so requires) notify Buyer of their intent to do so, and Buyer shall cooperate, at the sole expense of Sellers, in the defense against, or compromise or settlement of, any claim in any such proceeding. In that event, Sellers shall reasonably and in good faith consult with Buyer with respect to each aspect of the defense against, or compromise or settlement of, any such Indemnifiable Tax Liability. Without limiting the application generality of subsection (a)(i) above theretothe foregoing, Landlord Buyer shall be deemed subject permitted, at its expense, to prosecution be represented at each conference, hearing or meeting with representatives of the pertinent taxing authority (and shall be notified reasonably in advance thereof). Sellers shall promptly notify Buyer in writing after it settles, compromises or abandons any claim of matters related to Indemnifiable Tax Liability, and with respect to any such claim that could adversely affect an Acquired Company, Buyer or any of their respective affiliates with respect to any Post-Closing Tax Period, Sellers shall not settle, compromise or abandon any matter related to Indemnifiable Tax Liability without obtaining the prior written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed. If Sellers elect not to represent the interests of an Acquired Company, Buyer may pay, compromise or contest such Indemnifiable Tax Liability in any reasonable manner it deems appropriate (in its sole discretion), and Sellers shall remain fully liable for such Indemnifiable Tax Liability.
(c) Buyer shall control, at its own expense, any Tax proceeding for a crime within Straddle Period with respect to any Acquired Company; provided, however, that (i) Buyer shall consult with Sellers before taking any significant action in connection with such Tax proceeding, and (ii) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the meaning prior written consent of said subsectionthe Sellers, if Landlordwhich consent shall not be unreasonably withheld, conditioned or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretodelayed.
Appears in 2 contracts
Sources: Securities and Asset Purchase Agreement (Easylink Services International Corp), Securities and Asset Purchase Agreement (Premiere Global Services, Inc.)
Contests. Parent shall give prompt written notice to Holdings and Member Representative (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithall events, within twenty (20) days of the receipt thereof) of the receipt of any written notice by the Surviving Companies, Parent or any of Parent’s Affiliates (including, without limitation, the validityother Holdings Entities), which involves the assertion of any claim, or applicability the commencement of any Action relating to Taxes in respect of which an indemnification claim may be made by any Parent Indemnitee pursuant to this Agreement (a “Tax Claim”); provided, that failure to comply with such notice provision shall not affect Parent’s right to indemnification hereunder, except to the Premises, extent that Holdings and the Parent Share Recipients are materially prejudiced thereby. Holdings or Member Representative shall control the contest or resolution of any Requirement with Tax Claim relating to any income Tax Returns of any Holdings Entity for periods that end on or before the Closing Date (other than a Tax Claim relating to 280E and which Tenant is obligated also relates to comply pursuant to the provisions one or more income Tax Return(s) of this LeaseParent or one or more of Parent’s Affiliates, and Landlord shall cooperate with Tenant in such proceedingsa “Combined Tax Claim”); provided, provided that:
however, that (i) Landlord Member Representative or Holdings, as applicable, shall provide Parent copies of all written correspondence related to such Tax Claim and otherwise keep Parent apprised of all material developments with respect to any Tax Claim, (ii) Holdings or Member Representative shall obtain the prior written consent of Parent (which consent shall not be subject unreasonably withheld, conditioned or delayed) before entering into any settlement of a claim or ceasing to criminal penalty or defend such claim, and (iii) Parent shall be entitled to prosecution for a crime nor shall participate in the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason defense of such contest;
claim and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Parent. Parent shall control the contest or resolution of any other Tax Claim including, without limitation, a Combined Tax Claim; provided, however, that (i) Parent shall provide Member Representative copies of all written correspondence related to such Tax Claim and otherwise keep Member Representative apprised of all material developments with respect to any Tax Claim, (ii) Tenant Parent shall defendobtain the prior written consent of Member Representative (which consent shall not be unreasonably withheld, indemnify conditioned or delayed) before entering into any settlement of a claim or ceasing to defend such claim, and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance Holdings or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action Member Representative shall be taken entitled to participate in the defense of such claim and to employ counsel of its choice for such security purpose, the fees and expenses of which separate counsel shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsborne solely by Holdings.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 2 contracts
Sources: Merger Agreement (Vireo Growth Inc.), Merger Agreement (Vireo Growth Inc.)
Contests. For purposes of this Agreement, a “Contest” is any audit, court proceeding or other dispute with respect to any Tax matter that affects the Company or its Subsidiaries. Unless the Buyer has previously received written notice from the Equityholder Representative of the existence of such Contest, the Buyer shall give written notice to the Equityholder Representative of the existence of any Contest relating to a Tax matter which could result in an indemnity claim by any Buyer Indemnified Person pursuant to Article VIII, within ten days from the receipt by the Buyer of any written notice of such Contest, but no failure to give such notice shall relieve the Sellers of any liability hereunder unless the Sellers are materially prejudiced thereby. The Buyer, on the one hand, and the Equityholder Representative, on the other, agree, in each case at no cost to the other party, to cooperate with the other and the other’s Representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall include, but not be limited to, making available to the other party, during normal business hours, all books, records, returns, documents, files, other information (aincluding, without limitation, working papers and schedules), officers or employees (without substantial interruption of employment) Tenant mayor other relevant information necessary or useful in connection with any Contest requiring any such books, records and files. If a Contest relates to a Tax matter that could result in an indemnity claim by any Buyer Indemnified Person pursuant to Article VIII and the then remaining amount in the Indemnity Escrow Fund is equal to at least half of the amount of Taxes that would reasonably be expected to be payable as a result of such Contest (such Contest, a “Seller Tax Contest”), the Equityholder Representative shall, at its election, have the right to represent the Company’s or applicable Subsidiary’s interests in any such Seller Tax Contest, to employ counsel of its choice at its expense contest(on behalf of the Sellers) and to control the conduct of such Seller Tax Contest, including settlement or other disposition thereof; provided, however, that the Buyer shall have the right to consult with the Equityholder Representative regarding any such Seller Tax Contest at the Buyer’s own expense; provided further, that any settlement or other disposition of any such Seller Tax Contest may only be with the prior written consent of the Buyer, which consent will not be unreasonably withheld or delayed. Buyer shall have the right to control any Seller Tax Contest that the Equityholder Representative does not elect to control, and any other Contest that could result in an indemnity claim by appropriate proceedings prosecuted diligently and any Buyer Indemnified Person pursuant to Article VIII; provided, however, that the Equityholder Representative shall have the right to consult with the Buyer regarding any such Contest at the Equityholder Representative’s own expense (on behalf of the Sellers); provided further, that any settlement or other disposition of any such Contest may only be with the prior written consent of the Equityholder Representative, which consent will not be unreasonably withheld or delayed. Except as otherwise explicitly set forth in good faiththis Section 4.8(b), the validity, or applicability Buyer shall have the sole right to control the Premises, conduct of any Requirement Contest with which Tenant is obligated respect to comply pursuant to any period ending after the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsClosing Date.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 2 contracts
Sources: Merger Agreement (Zayo Group LLC), Merger Agreement (Zayo Group LLC)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validityPurchaser shall -------- promptly notify the Shareholders in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchaser, the Company or applicability any Company Subsidiary which, if determined adversely to the Premisestaxpayer or after the lapse of time, is likely to give rise to grounds for indemnification by the Shareholders. Such notice shall contain factual information (to the extent known to the Purchaser) describing the asserted Tax liability in reasonable detail and shall include copies of any Requirement with which Tenant is obligated notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If the Purchaser fails to comply pursuant to give the provisions Shareholders prompt notice of this Leasean asserted Tax liability, and Landlord shall cooperate with Tenant in such proceedings, provided that:
then (i) Landlord if the Shareholders are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, the Shareholders shall not be subject have any obligation to criminal penalty or to prosecution indemnify for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason loss arising out of such contest;
asserted Tax liability, and (ii) Tenant if the Shareholders are not so precluded from contesting, but such failure to give prompt notice results in a detriment to the Shareholders, any amount which the Shareholders are otherwise required to pay the Purchaser with respect to such liability shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer be reduced by reason the amount of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsdetriment.
(b) Without limiting Except as indicated in the application last sentence of subsection this Section 8.04(b), the Shareholders may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought from the Shareholders (a)(iany such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If the Shareholders elect to direct the Contest of an asserted Tax ------- liability, they shall, within 30 calendar days of receipt of the notice of asserted Tax liability, notify the Purchaser of their intent to do so, and the Purchaser shall cooperate and shall cause the Company and the Company Subsidiaries to cooperate, at the Shareholders' expense, in each phase of such Contest. If the Shareholders elect not to direct the Contest, fail to notify the Purchaser of their election as herein provided or contest their indemnification obligation, the Purchaser may pay, compromise or contest, at its own expense, such asserted liability. However, in such case, the Purchaser may not settle or compromise any asserted liability over the objection of the Shareholders; provided, however, that consent to settlement or compromise shall not be -------- ------- unreasonably withheld. In any event, both the Purchaser and the Shareholders may participate, at their own expense, in the Contest. If a Contest includes both an asserted liability with respect to which an indemnity may be sought from the Shareholders and an asserted liability for which no such indemnity may be sought, the foregoing provisions of this Section 8.04(b) above thereto, Landlord shall apply only to such portion of the Contest as involves the asserted liability with respect to which an indemnity may be deemed subject to prosecution for a crime within sought from the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoShareholders.
Appears in 2 contracts
Sources: Registration Rights Agreement (Pogo Producing Co), Merger Agreement (Pogo Producing Co)
Contests. (a) Tenant mayIn the event Purchaser or Sellers receives written notice of any examination, at its expense contestclaim, by appropriate proceedings prosecuted diligently and in good faithsettlement, the validityproposed adjustment, administrative or judicial proceeding, or applicability other matter ("Tax Claim") related to the Premisesany Pre-Closing Taxes, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this LeaseTransfer Taxes or Overlap Period Taxes, and Landlord shall cooperate with Tenant in such proceedingsPurchaser or Sellers, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedings.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be, shall notify the other Parties in writing as soon as reasonably practical (but in no event more than ten (10) is Business Days) after receipt of such notice. If Sellers notify Purchaser in writing within thirty (30) Business Days following receipt of such written notice they intend to exercise their rights pursuant to this Section 8.7, they shall be entitled to control the defense, prosecution, settlement or compromise of such Tax Claim, at their own expense. Purchaser shall take such action in contesting such Tax Claim as Sellers shall reasonably request from time to time, including the selection of counsel and experts and execution of powers of attorney. Purchaser shall (a) not make any payments of such Tax Claim for at least thirty (30) days (or such shorter period as may be required by applicable Law) after giving the notice required by this Section 8.7, (b) give the Sellers any information requested relating to plead such Tax Claim, (c) give any Tax Authority any information requested by Sellers relating to such Tax Claim, and (d) otherwise cooperate with and make internal resources available to the Sellers in good faith in order to effectively contest any such Tax Claim. Sellers shall reimburse Purchaser for any reasonable, out-of-pocket costs pre-approved by Sellers and demonstrated to Sellers' reasonable satisfaction that are incurred by Purchaser in providing such assistance. Purchaser shall not settle or answer theretootherwise compromise any such Tax Claim with any Taxing Authority or prosecute such contest to a determination in court or other tribunal or initial or appellate jurisdiction unless instructed to do so by the Sellers. Any of the Sellers may settle or otherwise compromise any such Tax Claim without Purchaser's prior written consent, except that if as a result of such settlement or compromise the Taxes payable by Purchaser would be materially increased, none of Sellers may settle or compromise such matter without Purchaser's prior written consent, which consent shall not be unreasonably withheld. In connection with any proceeding taken with respect to such matters, (i) Sellers shall keep Purchaser informed of all material developments and events relating to such matters if involving a material liability for Taxes and (ii) Purchaser shall have the right, at its sole expense, to participate in any such proceedings. Purchaser shall cooperate with Sellers by giving them and their representatives, on prior reasonable notice, reasonable access and cooperation during normal business hours to all information, books and records pertaining to Transfer Taxes, Pre-Closing Taxes and Overlap Period Taxes. Sellers shall reimburse Purchaser for any reasonable, out-of-pocket costs pre-approved by Sellers and demonstrated to Sellers' reasonable satisfaction that are incurred by Purchaser in providing such assistance.
Appears in 2 contracts
Sources: Purchase Agreement (Pinnacle West Capital Corp), Purchase Agreement (Sierra Pacific Resources /Nv/)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Merger Effective Time, the validityPurchaser shall promptly notify the Seller in writing of the proposed assessment or the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchaser, its Affiliates, the Company, any Subsidiary or applicability any Joint Venture which, if determined adversely to the Premisestaxpayer or after the lapse of time, could be grounds for indemnification by the Seller under Section 7.01. Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Company, any Subsidiary or any Joint Venture) describing the asserted Tax Liability in reasonable detail and shall include copies of any Requirement with which Tenant is obligated notice or other document received from any taxing authority in respect of any such asserted Tax Liability. Any failure by the Purchaser to comply pursuant give the Seller prompt notice of an asserted Tax Liability as required by this Section 7.03, shall not limit the obligation of the Seller to indemnify the Purchaser, the Company, any Subsidiary or any Joint Venture for such Tax Liability unless and only to the provisions of this Lease, and Landlord shall cooperate with Tenant extent that such failure resulted in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as an economic detriment to the status of such proceedingsSeller.
(b) Without limiting In the application case of subsection a Tax audit or administrative or judicial proceeding (a)(ia “Contest”) above theretothat relates to taxable periods ending on or before the date of the Merger, Landlord the Seller shall have the sole right, at its expense, to direct and control the conduct of, or pursue or settle, such Contest.
(c) With respect to Straddle Periods, the Seller may elect to direct and control, through counsel of its own choosing, any Contest involving any asserted Tax Liability with respect to which indemnity may be sought from the Seller pursuant to Section 7.01. If the Seller elects to direct a Contest, the Seller shall within thirty (30) days of receipt of the notice of asserted Tax Liability notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause the Company, the Subsidiaries and the Joint Ventures to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Seller shall promptly notify the Purchaser and the Purchaser, the Company, any Subsidiary or any Joint Venture shall assume control of such Contest (at the Purchaser’s expense). The Seller shall fully cooperate in each phase of such Contest. Neither the Purchaser, the Company, any Subsidiary or any Joint Venture, on the one hand, nor the Seller, on the other hand, shall enter into any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, which consent may not be unreasonably withheld. In any such Contest, the costs and expenses of the party assuming control of such Contest shall be deemed subject paid first from any recovery before any payments are made to prosecution for a crime within either party. The Purchaser may participate, at its own expense, in any Contest in which the meaning of said subsectionSeller assumes control, if Landlordand the Seller may participate, at its own expense, in any Contest in which the Purchaser assumes control.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, in the defense against or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime compromise of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoclaim in any Contest.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (PNA Group Holding CORP)
Contests. For purposes of this Agreement, a “Contest” is any audit, court proceeding or other dispute with respect to any Tax matter that affects either Company. Unless the Buyer has previously received written notice from the Shareholders of the existence of such Contest, the Buyer shall promptly give notice to the Shareholders of the existence of any Contest relating to a Tax matter that is the Shareholders’ responsibility under Section 7.05(d), but no failure to give such notice shall relieve the Shareholders of any liability hereunder, unless the Shareholders are prejudiced by such failure to give notice. The Buyer, on the one hand, and the Shareholders, on the other, agree, in each case at no cost to the other party, to cooperate with the other and the other’s representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall include, but not be limited to, making available to the other party, during normal business hours, all books, records, returns, documents, files, other information (aincluding, without limitation working papers and schedules), officers or employees (without substantial interruption of employment) Tenant mayor other relevant information necessary or useful in connection with any Contest requiring any such books, records and files. The Shareholders shall, at its their election, have the right to represent the Companies’ interests in any Contest relating to a Tax matter arising in a period ending on or before the Closing Date, to employ counsel of their choice at their expense contestand to control the conduct of such Contest, by appropriate proceedings prosecuted diligently including settlement or other disposition thereof; provided, however, that the Buyer shall have the right to consult with the Shareholders regarding any such Contest that may affect either Company for any periods ending after the Closing Date at the Buyer’s own expense; and in good faithprovided, the validityfurther, that any settlement or applicability to the Premises, other disposition of any Requirement such Contest may only be with the consent of the Buyer, which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall consent will not be subject unreasonably withheld. The Buyer shall have the right to criminal penalty or to prosecution for a crime nor shall control the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation conduct of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of Contest with respect to any tax matter arising in a period ending after the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsClosing Date.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Korn Ferry International)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently Buyer Parties and in good faith, the validity, Companies shall promptly forward to Stockholder Representative all written notifications and other communications from any Taxing Authority relating to any Tax liability of the Companies with respect to a Pre-Closing Tax Period or applicability any actions with respect to the Premises, same. The failure of Buyer Parties or the Companies to deliver such written notice in such period shall not affect the rights of an Indemnified Party under Article 7 with respect to any Requirement with which Tenant is obligated to comply pursuant Tax or Damage directly or indirectly related to the provisions subject matter of this Lease, such written notification or other communication except to the extent that the Indemnifying Party is materially and Landlord shall cooperate with Tenant in irrevocably prejudiced by the failure to provide such proceedings, provided that:written notice.
(b) (i) Landlord Stockholder Representative (at Stockholders’ expense, which shall be paid solely from the Stockholder Representative Expense Amount first and then from the Indemnification Escrow Account without regard to the Deductible) shall control any audit or examination by any taxing authority or any other judicial or administrative proceeding with respect to Taxes, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of the Companies (each, a “Tax Matter”) for any Pre-Closing Tax Period (but for this purpose excluding any Straddle Period) but only to the extent the Stockholders have an obligation with respect to any such Tax Matter under Article 7, including through recovery against the Indemnification Escrow Account, which has not expired or lapsed; provided, however, that Stockholder Representative shall provide to Buyer Parties (at Buyer Parties’ expense, which expense shall not be subject to criminal penalty indemnification under Article 7) reasonable participation rights with respect to so much of such Tax Matter that is reasonably likely to affect the Tax liability of Buyer Parties or to prosecution the Companies for a crime nor any Post-Closing Tax Period. Stockholder Representative shall the Premises not assert any defenses or claims, enter into any part thereof be subject to being condemned or vacatedsettlement of, by reason of non-compliance or otherwise compromise, any such Tax Matter that reasonably could adversely affect the liability of Buyer Parties or the Companies for any Taxes, as to which the Stockholders would not be liable hereunder, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. If Buyer Parties object to any action that Stockholder Representative proposes to take pursuant to the preceding sentence, Buyer Parties shall, within thirty (30) days after delivery from Stockholder Representative of written notice of the intent to take such action, notify Stockholder Representative in writing that it so objects, specifying with particularity the objectionable action and stating the specific factual or legal basis for any such objection. If a notice of objection shall be duly delivered, Buyer Parties and Stockholder Representative shall negotiate in good faith and use their commercially reasonable efforts to resolve such items. If Buyer Parties and Stockholder Representative are unable to reach such agreement within ten (10) days after receipt by reason Stockholder Representative of such contest;
notice, the disputed items shall be resolved by the Dispute Advisor and any determination by the Dispute Advisor shall be final. The Dispute Advisor shall resolve any disputed items within ten (ii10) Tenant shall defenddays of having the item referred to it pursuant to such procedures as it may require. The costs, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs fees and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action Dispute Advisor shall be taken borne equally by Buyer Parties and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsStockholder Representative.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 2 contracts
Sources: Merger Agreement (Vici Properties Inc.), Merger Agreement (Penn National Gaming Inc)
Contests. (a) Tenant mayIn the event any Governmental Authority informs the Purchaser or the Seller (or any of their respective Affiliates) of any proposed or actual audit, examination, adjustment, claim, assessment, or demand with respect to Taxes of the Company or any Subsidiary for any taxable period that ends on or before the Closing Date or any Straddle Period, the party so informed shall promptly notify the other of such matter. No failure or delay in informing the other party shall reduce or otherwise affect the obligations or liabilities of any party hereto, except to the extent such failure or delay shall have materially and adversely affected the recipient party’s ability to defend against any Liability or claim with respect to such Taxes. Any notice shall be accompanied by a copy of any written notice or other document received from the applicable Governmental Authority with respect to such matter.
(b) In the case of a Tax audit or administrative or judicial proceeding (a “Contest”) that relates to taxable periods ending on or before the Closing Date, the Seller shall have the sole right, at its expense contestexpense, by appropriate proceedings prosecuted to control the conduct of such Contest, provided that Seller conducts such Contest diligently and in good faith. If the Seller elects to control any Contest that relates to taxable periods ending on or before the Closing Date, the validityPurchaser, the Company and any relevant Subsidiary shall have the right, at their expense, to participate in such Contest.
(c) In the case of a Contest that relates to any Straddle Period, the Purchaser or applicability the relevant Subsidiary shall have the sole right, at its expense, to control the Premisesconduct of such Contest. The Seller shall have the right, of at its expense, to participate in such Contest involving any Requirement asserted Tax Liability with respect to which Tenant is obligated to comply indemnity may be sought from the Seller pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:Section 6.01.
(id) Landlord Neither the Seller nor the Purchaser (nor any of their respective Affiliates) may settle or compromise any asserted Liability under this Section 6.03 without the prior written consent of the other; provided, however, that consent to settlement or compromise shall not be subject unreasonably withheld or delayed. The Purchaser and the Seller agree to criminal penalty cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, in the defense against or to prosecution for a crime nor compromise of any claim in any Contest; provided, however, that the Seller shall bear the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason cost and expense of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingscooperation.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 2 contracts
Sources: Restructuring and Investment Agreement (Stock Building Supply Holdings, Inc.), Restructuring and Investment Agreement (Stock Building Supply Holdings, Inc.)
Contests. If no Event of Default has occurred and is then continuing, Tenant, on its own or on Landlord's behalf (a) Tenant mayor in Landlord's name), but at its expense Tenant's sole cost and expense, upon ten days' prior Notice to Landlord, may contest, by appropriate legal proceedings prosecuted diligently and conducted in good faithfaith and with due diligence, without prejudice to Landlord's rights hereunder the validityamount, validity or applicability to the Premisesapplication, in whole or in part, of any Requirement with which Tenant is obligated Imposition, Legal Requirement, Insurance Requirement, lien, attachment, levy, encumbrance, charge or claim not otherwise permitted by Article XII, provided that (a) in the case of an unpaid Imposition, lien, attachment, levy, encumbrance, charge or claim, the commencement and continuation of such proceedings shall suspend the collection thereof from Landlord and from the Property, (b) neither the Property nor any Rent therefrom nor any part thereof or interest therein would be subject to any risk of being sold, forfeited, attached, foreclosed, or lost, (c) in the case of a Legal Requirement, Landlord would not be in any danger of incurring any lien, charge, fine, penalty, or other civil or criminal liability for failure to comply pursuant to therewith pending the provisions outcome of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(id) Landlord in the event that any such contest shall not be subject to criminal penalty involve a sum of money or to prosecution for a crime nor shall the Premises or potential loss in excess of $100,000 then, in any part thereof be subject to being condemned or vacatedsuch event, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defenddeliver to Landlord an Officer's Certificate to the effect set forth in clauses (a), indemnify (b) and hold harmless (c), to the extent applicable, (e) in the case of a Legal Requirement or an Imposition, lien, encumbrance or charge, Tenant shall give such reasonable security as may be demanded by Landlord from to insure ultimate payment of the same and against to prevent any and all actionsloss or injury to Landlord, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer but not limited to any sale or forfeiture of the affected portion of the Property or the Rent by reason of such non-compliance payment or contest;
(iii) such non-compliance or contest compliance; provided, however, the provisions of this Article shall not constitute or result in any violation be construed to permit Tenant to contest the payment of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
Rent (iv) Tenant shall keep Landlord advised as to the status of such proceedings.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.except
Appears in 2 contracts
Sources: Lease Agreement (Unison Healthcare Corp), Lease Agreement (Unison Healthcare Corp)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validity, or applicability to Purchaser shall promptly notify the Premises, Seller in writing of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty the initiation of any audit or to prosecution for other examination by a crime nor shall the Premises or taxing authority of any part thereof be subject to being condemned or vacated, by reason of nonPre-compliance or otherwise by reason of such contest;
Closing Period and (ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason written notice of such non-compliance a proposed assessment or contest;
(iii) such non-compliance claim in an audit or contest shall not constitute administrative or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition judicial proceeding of the taking Purchaser or any member of action or furnishing of security by Landlordthe Target Group which, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as if determined adversely to the status taxpayer, would be grounds for indemnification under this Article VII; provided, however, that the failure to give such notice will not affect the Purchaser’s right to indemnification under this Article VII except to the extent, if any, that such failure to promptly provide notice materially affected the ability of such proceedingsthe Seller to successfully avoid or materially reduce the Tax liability in question.
(b) Without limiting In the application case of subsection an audit or administrative or judicial proceeding that relates to Pre-Closing Period, the Seller shall have the right at its expense to participate in and control the conduct of such audit or proceeding; the Purchaser also may participate, at its own expense, in any such audit or proceeding. If the settlement of such audit or proceeding could be reasonably expected to increase the Tax liability of the Purchaser or any of its Affiliates (a)(iincluding any member of the Target Group) above theretoin a Post-Closing Period, Landlord the Seller may not settle such audit or proceeding without the Purchaser’s consent, which shall not be unreasonably withheld or delayed, provided that the Purchaser’s consent shall not be required if the Purchaser fails to confirm in writing to the Seller its consent or decline to consent within ten (10) Business Days of the Purchaser’s receipt of the Seller’s request for such consent (and for the avoidance of doubt, if the Seller fails to receive the Purchaser’s consent or decline to consent within ten (10) Business Days of the Purchaser’s receipt of the Seller’s request for consent, the Purchaser is deemed to have provided its consent to the Seller to settle such audit or proceeding). If the Seller does not assume the control of any such audit or proceeding, the Purchaser may defend the same in such manner as it may deem appropriate, including settling such audit or proceeding, subject to the Seller’s consent, which shall not be unreasonably withheld or delayed, provided that the Seller’s consent shall not be required if the Seller fails to confirm in writing to the Purchaser its consent or decline to consent within ten (10) Business Days of the Seller’s receipt of the Purchaser’s request for such consent (and for the avoidance of doubt, if the Purchaser fails to receive the Seller’s consent or decline to consent within ten (10) Business Days of the Seller’s receipt of the Purchaser’s request for consent, the Seller is deemed to have provided its consent to the Purchaser to settle such audit or proceeding). In the event that issues relating to a potential adjustment are required to be contested in the same audit or proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to control the audit or proceeding with respect to the latter issues, except to the extent that it would be harmful to the Seller.
(c) With respect to issues relating to a potential adjustment for which both the Seller and the Purchaser or any member of the Target Group could be liable, (i) both the Seller and the Purchaser may participate in the audit or proceeding and (ii) the audit or proceeding shall be deemed subject controlled by the Purchaser, and the Seller and Purchaser shall take commercially reasonable efforts to prosecution separate such audit or proceeding so that issues relating to each of them can be handled separately. The principle set forth in this Section 7.04(c) also shall govern for a crime within purposes of deciding any issue that must be decided jointly (including choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article VII by the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as Purchaser and the case may be) is required to plead or answer theretoSeller.
Appears in 2 contracts
Sources: Master Purchase Agreement, Master Purchase Agreement (China Lodging Group, LTD)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validityPurchaser shall promptly notify Parent in writing of any notice received by the Purchaser or any of its Subsidiaries of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser or any of its Subsidiaries, or applicability of the Company or SAP Thai, which, if determined adversely to the Premisestaxpayer, would be grounds for indemnification under this Article VII. If, following the receipt by the Purchaser or any of any Requirement with which Tenant is obligated its Subsidiaries of notice of such a proposed assessment or claim, the Purchaser fails to comply pursuant to give Parent the provisions prompt notice required by the preceding sentence of this LeaseSection 7.03, and Landlord shall cooperate with Tenant in such proceedings, provided that:
then (i) Landlord if Parent is precluded by such failure from contesting the asserted Tax liability in question, Parent shall not be subject have any obligation to criminal penalty indemnify the Purchaser under this Article VII for any loss or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason damage arising out of such contest;
asserted Tax liability, and (ii) Tenant if Parent is not precluded from contesting the asserted Tax liability in question, but such failure results in a monetary detriment to Parent, any amount which Parent otherwise would be required to pay the Purchaser pursuant to this Article VII with respect to such liability shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer be reduced by reason the amount of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsdetriment.
(b) Without limiting In the application case of subsection an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date, provided that Parent acknowledges in writing its liability under this Agreement to hold the Purchaser and its Subsidiaries and the Company and SAP Thai harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding that relates to periods ending on or before the Closing Date (a)(ior, in the case of any taxable year that includes the Closing Date, against an adjustment allocable under Section 7.01(b) above theretoto the portion of such year ending on or before the Closing Date), Landlord Parent shall have the right at its expense to participate in and control the conduct of such audit or proceeding but only to the extent that such audit or proceeding relates solely to a potential adjustment for which Parent has acknowledged its liability; the Purchaser also may participate in any such audit or proceeding and, if Parent does not assume the defense of any such audit or proceeding, the Purchaser may defend the same in such manner as it may deem appropriate, including, without limitation, settling such audit or proceeding after giving five days' prior written notice to Parent setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which Parent has acknowledged its liability are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to control the audit or proceeding with respect to the latter issues.
(c) With respect to issues relating to a potential adjustment for which both Parent (as evidenced by its acknowledgment under this Section 7.03) and any of the Purchaser, one of its Subsidiaries or the Company or SAP Thai could be liable, (i) each party may participate in the audit or proceeding and (ii) the audit or proceeding shall be deemed subject controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the immediately preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (including, without limitation, choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article VII by the Purchaser and Parent.
(d) Neither the Purchaser nor Parent shall enter into any compromise or agree to prosecution settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a crime within subsequent year without the meaning written consent of said subsectionthe other party, if Landlord, which consent may not be unreasonably withheld. The Purchaser and Parent agree to cooperate in the defense against or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime compromise of any kind claim in any audit or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoproceeding.
Appears in 2 contracts
Sources: Asset and Stock Purchase Agreement (Amcol International Corp), Asset and Stock Purchase Agreement (Amcol International Corp)
Contests. (a) Tenant mayWhenever any Governmental Authority asserts a claim, at its expense contestmakes an assessment or otherwise disputes the amount of Taxes for which Sellers are or may be liable under this Agreement, by appropriate Purchaser shall, if informed of such an assertion, inform the relevant Seller within ten business days, and the relevant Seller shall have the right to control any resulting proceedings prosecuted diligently and in good faithto determine whether and when to settle any such claim, the validity, assessment or applicability dispute to the Premisesextent such proceedings or determinations affect the amount of Taxes for which such Seller may be liable under this Agreement, of except that Purchaser shall have the right to consent, which consent will not be unreasonably withheld or delayed, to any Requirement with which Tenant is obligated to comply pursuant settlement to the provisions extent such proceedings or settlement materially affect the amount of Taxes for which Purchaser may be liable under this LeaseAgreement. If Purchaser fails to provide such notice and such failure shall materially prejudice a Seller's ability to defend such assessment, then the Seller's indemnification obligations shall be null and Landlord void with regard to such assessment. Whenever any Taxing Authority asserts a claim, makes an assessment or otherwise disputes the amount of Taxes for which Purchaser is liable under this Agreement Seller shall cooperate with Tenant if informed of such an assertion, inform Purchaser within 10 business days, and, in any case, Purchaser shall have the right to control any resulting proceedings and to determine whether and when to settle any such proceedingsclaim, provided that:
(i) Landlord assessment or dispute, except that Sellers shall have the right to consent, which consent shall not be subject unreasonably withheld or delayed, to criminal penalty any settlement to the extent such proceedings settlement affects the amount of Taxes for which Sellers are or may be liable under this Agreement. If Seller fails to prosecution for a crime nor shall provide such notice and such failure materially prejudices Purchaser's ability to defend such assessment, then the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action Purchasers indemnification obligation shall be taken null and void with regard to such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsassessment.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 2 contracts
Sources: Acquisition Agreement, Acquisition Agreement (McLeodusa Inc)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validity, party first receiving notice shall promptly notify the other party in writing of any demand or applicability claim on the first party from any Tax authority or other party with respect to Taxes for which the other party is liable pursuant to Section 7.01. Such notice shall contain factual information (to the Premises, extent known) describing the asserted Tax liability in reasonable detail and shall include copies of any Requirement with which Tenant notice or other document received from any Tax authority in respect of any such asserted Tax liability. If such notifying party fails to give the other party prompt notice of an asserted Tax liability as required by this Section 7.03, then (a) if the other party is obligated precluded by the failure to comply give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then such notifying party shall have sole responsibility for such Tax liability or (b) if the other party is not precluded from contesting but such failure to give prompt notice results in detriment to the other party, then any amount that the other party is otherwise required to pay to such notifying party pursuant to Section 7.01 with respect to such liability shall be reduced by the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason amount of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsdetriment.
(b) Without limiting The Seller may elect to control the application conduct to a final determination, through counsel of subsection its own choosing and at its own expense, of any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought by the Purchaser under Section 7.01(a) (a)(iany such audit, claim for refund or proceeding relating to an asserted Tax liability is referred to herein as a "CONTEST"). If the Seller elects to control a Contest, it shall within 30 calendar days of receipt of the notice of asserted Tax liability notify the Purchaser in writing of its intent to do so. In such case, thereafter the Seller shall have all rights to settle, compromise and/or concede such asserted liability and the Purchaser shall cooperate and shall cause a Publishing Subsidiary or any of its successors to cooperate, at the expense of the Seller, in each phase of such Contest; PROVIDED, HOWEVER, that (i) above theretoSeller shall not, Landlord other than in good faith based on the merits, enter into any compromise or settlement of such Contest that would result in any Tax detriment to the Purchaser, the Parent or any Publishing Subsidiary; and (ii) if a Publishing Subsidiary is requested by the Seller to pay or cause to be paid the tax claimed and to ▇▇▇ for a refund, then the Seller shall advance to the Publishing Subsidiary on an interest-free basis the amount of Tax claimed. The Seller shall inform the Purchaser of all developments and events relating to such Contest (including, without limitation, providing to the Purchaser copies of all written materials relating to such contest reasonably requested by Purchaser), and the Purchaser and its authorized representatives shall be deemed subject entitled, at the expense of the Purchaser, to prosecution for attend, but not participate in or control, all conferences, meetings and proceedings relating to such Contest. If, pursuant to Section 7.03(b)(ii), the Seller advances to a crime within Publishing Subsidiary an 50 amount of Tax claimed under a Contest and there is a final determination that the meaning Publishing Subsidiary is entitled to a refund of said subsection, if Landlord, all or any officerportion thereof, directorthen the Publishing Subsidiary shall promptly pay or cause to be paid to Seller such refund upon its receipt thereof (together with any interest paid or credited thereon by the applicable Tax authority). If the Seller elects not to control the Contest, partnerfails to notify the Purchaser of its election as herein provided or contests its obligation to indemnify under Section 7.01(a), memberthe Purchaser or a Publishing Subsidiary may pay, principal compromise or employee contest such asserted liability. Neither the Purchaser nor any Publishing Subsidiary may settle or compromise any asserted liability with respect to which indemnity may be sought by the Purchaser over the objection of Landlord individuallythe Seller; PROVIDED, is charged with HOWEVER, that consent to settlement or compromise shall not be unreasonably withheld. In any event, the Seller may participate, at its own expense, in the Contest. If the Seller chooses to control the Contest, the Purchaser shall promptly empower and shall cause a crime Publishing Subsidiary or any of its successors promptly to empower (by power of attorney and such other documentation as may be appropriate) such representatives of the Seller as it may designate to represent the Purchaser, a Publishing Subsidiary or any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (their successors in the Contest insofar as the case Contest involves an asserted Tax liability with respect to which indemnity may be) is required to plead or answer theretobe sought by the Purchaser.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Pearson PLC), Stock Purchase Agreement (Viacom Inc)
Contests. (ai) Tenant mayIn General
(1) Except as provided in (ii) below, if a written claim shall be made against and received by any Lender for any Tax for which Borrower is obligated to indemnify pursuant to this Section 2.6, such Lender shall notify Borrower in writing of such claim within 30 days after its receipt, and shall provide Borrower such information regarding such claim as Borrower may reasonably request; provided, however, that the failure to provide such notice within such 30 days shall not release Borrower from any of its obligations to indemnify under this Section 2.6 unless, and only to the extent that, such failure has a material adverse effect on the conduct of such contest. To the extent permitted under applicable law, such Lender will not make any payments with respect to such claim for at least 30 days after giving notice of such claim to Borrower.
(2) If requested by Borrower in writing within 30 days after its receipt of such notice, such Lender shall, at the expense of Borrower and subject to subsection (3) below, contest the validity, applicability or amount of such Taxes by, in the case of a "Lender-Controlled Contest" (which shall mean any contest other than a Borrower-Controlled Contest (as defined below)), in such Lender's sole discretion or, in the case of a "Borrower-Controlled Contest" (which shall mean any contest which such Lender agrees in its expense sole discretion to allow Borrower to control or involving only Taxes with respect to which participation by neither the Lender nor any Affiliate of the Lender is required (it being --------- * Confidential 7 understood that any contest involving Taxes in the nature of Income Taxes or any contest conducted in the name of such Lender is a contest requiring the participation of such Lender) and no tax return of the Lender or any of its Affiliates is held open with respect to which any Lender may reasonably be viewed as having an actual or potential material liability for Taxes not indemnified against by Borrower), in Borrower's sole discretion, resisting payment thereof if practicable, not paying such Tax except under protest, if protest is necessary and proper, if payment of such Tax is made, using reasonable efforts to obtain a refund thereof, in appropriate administrative and judicial proceedings, and in the case of a Lender-Controlled Contest, considering in good faith any other reasonable action as Borrower and Borrower's counsel may reasonably request. Each Lender shall consult in good faith with Borrower and Borrower's counsel concerning the forum in which the contest is most likely to be favorably resolved and whether such contest shall be by (x) resisting payment of such Tax, (y) paying such Tax under protest or (z) paying such Tax and seeking a refund or other repayment thereof. In the case of a Lender-Controlled Contest, such Lender shall (i) keep Borrower reasonably informed regarding the progress of such contest, and (ii) consult with Borrower in good faith regarding the manner of contesting such claim, PROVIDED, HOWEVER, that the Lender shall have ultimate control over such contest and its decisions with respect to such contest shall be conclusive and binding. If requested to do so by Borrower, the Lender shall appeal any adverse administrative or judicial decision, [*].
(3) In no event shall a Lender be required, or Borrower be permitted, to contest the imposition of any Tax for which Borrower is obligated pursuant to this Section 2.6 unless (A) Borrower shall have agreed to pay and shall promptly on request pay on an After-tax Basis all reasonable out of pocket costs and expenses that such Lender incurs in contesting such claim or arising out of or relating to such contest and which are reasonably allocable to such claim (including legal fees and disbursements, including those on appeal, if any); (B) (unless Borrower has provided to the relevant Lender a bond or other security in form and substance acceptable to such Lender in its sole discretion) such contest is not reasonably likely to result in a material danger of the sale, seizure, forfeiture or loss of the Aircraft, or the creation of any Lien thereon other than Liens for Taxes either not yet due or being contested in good faith by appropriate proceedings prosecuted diligently and for which such reserves, if any, as are required to be provided under GAAP have been provided by Borrower; (C) if such contest shall be conducted in good faitha manner requiring the payment of the claim, Borrower shall have advanced sufficient funds, on an interest-free basis, to make the validitypayment required, and shall have agreed to indemnify the Lender against any additional net After-tax cost to such Lender of such advance; (D) if requested by the Lender in writing, such Lender shall have received an opinion of independent Tax counsel selected by Borrower and reasonably acceptable to such Lender and furnished at Borrower's sole expense to the effect that a "Realistic Possibility of Success" (which shall mean the standard upon which an attorney may properly advise the taking of a position on a tax return as set forth in ABA Formal Opinion 85-352) exists for contesting such claim (or, in the case of an appeal of an adverse judicial --------- * Confidential determination, a written opinion from such independent Tax counsel to the effect there is a Realistic Possibility of Success such adverse judicial determination will be reversed or substantially modified); (E) Borrower shall have delivered to such Lender a written acknowledgment of Borrower's obligation to indemnify such Lender to the extent that the contest is not successful, provided, however, that Borrower will not be bound by its acknowledgment of liability if the contest is resolved on a clear and unambiguous basis showing no such liability under this Section 2.6 with respect to such Tax; (F) if an Event of Default shall have occurred and be continuing, Borrower shall have provided security for its obligation hereunder satisfactory to the Lender by placing in escrow sufficient funds to cover any such contested Tax and the reasonably expected expenses of such contest on an After-tax Basis, or applicability otherwise providing satisfactory (as determined in such Lender's sole discretion) provisions for payment of such amounts; (G) the aggregate amount of all indemnity payments that Borrower may [*] and (H) the claim is not for a Tax the imposition of which has been previously contested by Borrower hereunder, and such previous contest (including all allowable appeals) was decided adversely to Borrower, unless Borrower has delivered an opinion of independent Tax counsel selected by Borrower and reasonably acceptable to the PremisesLender to the effect that, on the basis of (i) a change in applicable Law, or (ii) a difference in the underlying facts, there is currently a Realistic Possibility of Success for contesting such claim.
(4) [*] if [*]Lender shall obtain a refund of all or any part of any Requirement Tax paid, advanced or indemnified by Borrower (or of an amount which otherwise would have been a refund was used to offset another liability of such Lender not indemnified by Borrower hereunder (an "Applied Amount")), such Lender shall pay Borrower, but not before Borrower shall have made all payments theretofore due to such Lender pursuant to this Section 2.6 and any other payments theretofore due to such Lender under any of the Operative Agreements, an amount equal to the amount of such refund (or such Applied Amount), including interest received or credited and attributable thereto plus, if Borrower has paid an amount on an After-tax Basis, any net Tax benefit (or minus any net Tax detriment) realized by such Lender as a result of any refund (or Applied Amount) received, and payment made, by such Lender pursuant to this sentence, provided, that the Lender shall not be obligated to pay any amount under the preceding sentence to the extent that such amount (other than that portion attributable to interest) would exceed the amount of Taxes paid, reimbursed or advanced by Borrower to such Lender plus any other payment in respect of such Taxes paid, reimbursed or advanced, provided, further, that any amount not paid to Borrower pursuant to the foregoing limitation shall be carried forward to reduce pro tanto any future payments that Borrower may be required to make to such Lender pursuant to this Section 2.6. If any Lender shall have paid Borrower any refund (or Applied Amount) of all or part of any Tax paid by Borrower and it is subsequently determined pursuant to a contest conducted in accordance with this Section 2.6(j) that such Lender was not entitled to the refund, such determination shall be treated as the imposition of a Tax for which Tenant Borrower is obligated to comply indemnify such Lender pursuant to the provisions of this LeaseSection 2.6. [*] if a --------- * Confidential Lender receives an award of attorneys fees in a contest for which the Borrower has paid an allocable portion of the contest expenses, and Landlord such Lender shall cooperate pay to the Borrower the same proportion of the amount of such award as the amount of such Lender's attorneys fees paid or reimbursed by the Borrower bears to the total amount of attorneys fees actually incurred by such Lender in conducting such contest, up to the amount of attorneys fees paid or borne by the Borrower in connection with Tenant in such proceedings, contest. [*]Lender shall have the right to settle or compromise a contest that it is otherwise required to pursue pursuant to this Section 2.6(j) if the applicable Lender has provided Borrower a reasonable opportunity to review a copy of that portion of the settlement or compromise proposal which relates to the Tax for which the applicable Lender is seeking indemnification hereunder; provided that:
, if (i) Landlord the applicable Lender fails to provide the Borrower such a reasonable opportunity to review such portion of such proposal or (ii) after such reasonable opportunity to review such proposal the Borrower in writing reasonably withholds its consent to all or part of such settlement or compromise proposal, the Borrower shall not be obligated to indemnify such Lender hereunder to the extent of the amount attributable to the Tax to which such settlement or compromise relates as to which the Borrower has reasonably withheld its consent and with respect to any other Tax for which a successful contest is foreclosed because of such settlement or compromise as to which the Borrower has withheld its consent. If the applicable Lender effects a settlement or compromise of such contest, notwithstanding that the Borrower has reasonably withheld its consent thereto, such Lender shall repay to the Borrower such amounts theretofore advanced by the Borrower pursuant to this Section 2.6(j) and the amount of any Tax subject to criminal penalty such contest paid or reimbursed by Borrower, to prosecution for the extent the Borrower has reasonably withheld its consent to the settlement or compromise thereof (together with interest at the rate applicable to refunds of such Tax on any such amount paid by the Borrower from the date paid by the Borrower to the date repaid by such Lender).
(5) [*] Lender shall obtain a crime nor shall the Premises refund of all or any part thereof be subject of any Tax paid, advanced or indemnified by Borrower (or if an amount which otherwise would have been a refund was used to being condemned offset another liability of the Lender not indemnified by Borrower hereunder (an "Applied Amount")), such Lender shall pay Borrower, but not before Borrower shall have made all payments theretofore due to the Lender pursuant to this Section 2.6 and any other payments theretofore due the Lender under any of the Operative Agreements, an amount equal to the amount of such refund (or vacatedsuch Applied Amount), including interest received or credited and attributable thereto plus, if Borrower has paid an amount on an After-tax Basis, any net Tax benefit (or minus any net Tax detriment) realized by such Lender as a result of any refund (or Applied Amount) received, and payment made, by reason of non-compliance or otherwise by reason of such contest;
Lender pursuant to this sentence, PROVIDED, that such Lender shall not be obligated to pay any amount under the preceding sentence [*](ii) Tenant shall defendto the extent that such amount (other than that portion attributable to interest) would exceed the amount of Taxes paid, indemnify and hold harmless Landlord from and against reimbursed or advanced by Borrower to such Lender plus any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason other payment in respect of such non-compliance Taxes paid, reimbursed or contest;
advanced. If such Lender shall have paid Borrower any refund (iiior Applied --------- * Confidential 10 Amount) such non-compliance of all or contest shall not constitute or result in any violation part of any superior lease or superior mortgageTax paid by Borrower and it is subsequently determined pursuant to a contest conducted in accordance with this Section 2.6(j) that the Lender was not entitled to the refund, or if such superior lease and/or superior mortgage determination shall permit be treated as the imposition of a Tax for which Borrower is obligated to indemnify the Lender pursuant to the provisions of this Section 2.6. If such non-compliance or Lender receives an award of attorneys fees in a contest on condition for which the Borrower has paid an allocable portion of the taking of action or furnishing of security by Landlordcontest expenses, such action the Lender shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as pay [*]to the status Borrower the same proportion of the amount of such proceedingsaward as the amount of the Lender's attorneys fees paid or reimbursed by the Borrower bears to the total amount of attorneys fees actually incurred by the Lender in conducting such contest, up to the amount of attorneys fees paid or borne by the Borrower in connection with such contest.
(b6) Without limiting Nothing contained in this Section 2.6(j) shall require any Lender to contest, or permit Borrower to contest in the application name of subsection such Lender, a claim which such Lender would otherwise be required to contest pursuant to this Section 2.6(j) if such Lender shall waive payment by Borrower of any amount that might otherwise be payable by Borrower under this Section 2.6 in connection with such claim (a)(iand any other claim for which a successful contest would be foreclosed because of the absence of, or the failure to pursue, such contest) above thereto, Landlord shall be deemed subject to prosecution for a crime within and promptly (upon the meaning prior written approval of said subsectionthe Central Bank of Brazil, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, such approval is charged required) pay to Borrower an amount equal to all funds advanced with a crime of any kind or degree whatever, whether respect to such contest by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoBorrower.
Appears in 2 contracts
Sources: Loan Agreement (Republic Airways Holdings Inc), Loan Agreement (Republic Airways Holdings Inc)
Contests. (a) Tenant mayIf any Taxing Authority asserts a Tax Claim in respect of any QNX Entity, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, then the validity, or applicability party hereto first receiving notice of such Tax Claim promptly shall provide written notice thereof to the Premises, other party or parties hereto. Such notice shall specify in reasonable detail the basis for such Tax Claim and shall include a copy of the relevant portion of any Requirement with which Tenant is obligated to comply pursuant to correspondence received from the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsTaxing Authority.
(b) Without limiting In the application case of subsection a Tax Proceeding involving a QNX Entity in respect of any taxable period that ends on or before the Closing Date Parent shall have the right to control, at its own expense, such Tax Proceeding; provided, however, that with respect to any Tax Proceeding in respect solely of a QNX Entity, which Tax Proceeding would reasonably be expected to have an adverse effect on the Buyers or any of their Affiliates (a)(iincluding the relevant QNX Entity) above thereto(i) Parent shall consult with Buyers before taking any significant action in connection with such Tax Proceeding, Landlord (ii) the Buyers shall be deemed subject entitled to prosecution participate in such Tax Proceeding at Buyer’s expense (along with counsel and other advisors of their choice) and (iii) Parent shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Buyers (which consent shall not be unreasonably withheld or delayed), to the extent such settlement or compromise would reasonably be expected to result in an adverse effect on the Buyers that is material, provided that if such consent is withheld by Buyers, control of such Tax Proceeding shall be assumed by Buyers at their own expense and Parent’s liability for any Taxes (including Parent Taxes) resulting from such Tax Proceeding shall not exceed the amount that would have been due under such settlement or compromise (Parent’s liability for Taxes in excess of the amount that would so have been due, “Excess Taxes”) (and, notwithstanding any other provision, Buyer shall indemnify Parent against any such Excess Taxes, to the extent any such Taxes are due or payable to any Tax Authority by Parent or any of its subsidiaries or Affiliates (other than any QNX Entity)).
(c) In the case of a Tax Proceeding for a crime within Straddle Period of a QNX Entity, the meaning Buyers shall have the right to control, at their own expense, such Tax Proceeding; provided, however, that (i) the Buyers shall consult with Parent before taking any significant action in connection with such Tax Proceeding, (ii) Parent shall be entitled to participate in such Tax Proceeding (along with counsel and other advisors of said subsectionits choice), (iii) Buyers shall take all actions in connection with such Tax Proceeding that relate to a Pre-Closing Period no differently than any action in connection with such Tax Proceeding that relates to a Post-Closing Period, and in all cases shall treat any such Tax Proceeding as if Landlordany and all liability for Taxes resulting therefrom were the responsibility of Buyers and (iv) the Buyers shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed, to the extent that such settlement or compromise would result in an indemnification payment by Parent for any Parent Taxes or otherwise reasonably be expected to result in an adverse effect on Parent, provided that if such consent is withheld by Parent and Buyers have complied with all their covenants hereunder in relation to such Tax Proceeding, then, notwithstanding any other provision of this Agreement, Parent’s liability for Taxes pursuant to Section 6.2(a) shall include and Parent shall indemnify the Buyers and each of their subsidiaries and Affiliates (including the QNX Entities) and hold them harmless from and against the amount of Taxes resulting from such Tax Proceeding that are in excess of the amount that would have been due under such settlement or compromise.
(d) In the case of a Tax Proceeding involving a QNX Entity (other than any Tax Proceeding described in Sections 6.5(b) or 6.5(c)) Buyers shall have the right to control, at their own expense, such Tax Proceeding, Parent shall not have any right to participate in any such Tax Proceeding and Section 6.5(a) shall not apply to such a Tax Claim; provided, however, that if such Tax Proceeding would reasonably be expected to have an adverse effect on Parent or any officerof its Affiliates, directorand only at such time when it becomes readily apparent that such Tax Proceedings would be expected to have such an effect (the “Contest Relevant Time”), partner(i) the Buyer shall consult with Parent before taking any significant action in connection with such Tax Proceeding, member(ii) Parent shall be entitled to participate in such Tax Proceeding (along with counsel and other advisors of its choice), principal and (iii) from and after the Contest Relevant Time, the Buyers shall not settle, compromise or employee abandon any such Tax Proceeding without obtaining the prior written consent of Landlord individuallyParent (which consent shall not be unreasonably withheld, conditioned or delayed), to the extent that such settlement or compromise would result in an indemnification payment by Parent for any Parent Taxes or otherwise reasonably be expected to result in an adverse effect on Parent that is charged with material.
(e) Notwithstanding any other provision, Parent shall have the exclusive right to control in all respects, including as to settlement, any Tax Proceeding relating to any Combined Tax Return, the Buyers shall not have any right to participate in any such Tax Proceeding and Section 6.5(a) shall not apply to such a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoTax Claim.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Harman International Industries Inc /De/)
Contests. Whenever any taxing authority provides notice of an inquiry, audit, examination, proceeding or makes a written assertion of a claim for or dispute regarding, or assessment of, Taxes (aa "Tax Claim") Tenant mayfor which Seller is liable or required to provide indemnification under this Agreement, at Purchaser shall, if informed of such notice of an inquiry, audit, examination, proceeding, assertion or assessment, inform Seller within fifteen (15) calendar days; provided, however, that any failure to inform Seller shall not relieve Seller of its expense contestobligation to provide the indemnity required hereunder as to such Tax Claim except to the extent that such failure has materially prejudiced Seller's ability to defend such Tax Claim. Seller shall have the right to control any resulting inquiry, by appropriate audit, examination or proceedings prosecuted diligently and to determine whether and when to settle any resulting claim, assessment or dispute to the extent such inquiry, audit, examination, proceedings or determinations affect the amount of Taxes for which Seller is liable or required to provide indemnification under this Agreement (including those attributable to the Straddle Period); provided, however, that (A) Seller shall have acknowledged that it is liable to the Purchaser Indemnified Parties for such Taxes under Section 6.6(b) (or the applicable portion of Taxes for such period, in good faiththe case of Taxes attributable to the Straddle Period); (B) Seller shall conduct such proceedings in a commercially reasonable manner; (C) Purchaser, the validityCompany and the Subsidiaries may participate in such proceedings at their own expense; (D) Seller shall not compromise or settle, or applicability agree to the Premisescompromise or settle, of any Requirement with Tax Claim without Purchaser's consent (which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty unreasonably withheld or to delayed); (E) if Seller does not so elect, Purchaser shall control the prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason and defense of such contest;
Tax Claim, which shall be conducted in a commercially reasonable manner; and (iiF) Tenant shall defendif Purchaser so elects, indemnify it may override Seller's election to control the prosecution and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason defense of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result Tax Claim, in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of which case the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedings.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord Purchaser Indemnified Parties shall be deemed subject to prosecution have waived their rights to indemnification for such Tax Claim. Whenever any taxing authority makes a crime within the meaning of said subsectionTax Claim for which Purchaser is liable or required to provide indemnification under this Agreement, Seller shall, if Landlordinformed of such notice of an inquiry, audit, examination, proceeding, assertion or assessment, inform Purchaser within fifteen (15) calendar days; provided, however, that any failure to inform Purchaser shall not relieve Purchaser of its obligation to provide the indemnity required hereunder as to such Tax Claim except to the extent that such failure has materially prejudiced Purchaser's ability to defend such Tax Claim. Purchaser shall have the right to control all proceedings relating to Tax Claims (1) that Seller does not have the right to control under this Section 6.6(e) or (2) that do not relate exclusively to Taxes of the Company or the Subsidiaries for Pre-Effective Tax Periods or the Straddle Period; provided, however, that to the extent a Tax Claim could reasonably be expected to materially affect the amount of Taxes for which Seller is liable under or required to provide indemnification under this Agreement, (1) Purchaser shall conduct such proceedings in a commercially reasonable manner; and (2) Purchaser shall not compromise or settle, or any officeragree to compromise or settle, director, partner, member, principal such Tax Claim without Seller's consent (which shall not be unreasonably withheld or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretodelayed).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Brookdale Senior Living Inc.), Stock Purchase Agreement (Capstead Mortgage Corp)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validityPurchaser shall promptly notify the Seller in writing of the proposed assessment or the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchaser, its Affiliates or applicability any of the ▇▇▇▇▇▇ Entities which, if determined adversely to the Premisestaxpayer or after the lapse of time, could be grounds for indemnification by the Seller under Section 7.01 (a “Claim”). Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates or any ▇▇▇▇▇▇ Entity) describing the Claim in reasonable detail and shall include copies of any Requirement with which Tenant is obligated notice or other document received from any taxing authority in respect of any such Claim. If the Purchaser fails to comply pursuant give the Seller prompt notice of a Claim as required by this Section 7.03, then the Seller shall not have any obligation to indemnify for any Loss arising out of such Claim, but only to the provisions of this Lease, and Landlord shall cooperate with Tenant extent that failure to give such notice results in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as detriment to the status of such proceedingsSeller.
(b) Without limiting In the application case of subsection a Tax audit or administrative or judicial proceeding (a)(ia “Contest”) above theretothat relates to taxable periods ending on or before the Closing Date, Landlord the Seller shall have the sole right, at its expense, to control the conduct of such Contest.
(c) With respect to Straddle Periods, the Seller may elect to direct and control, through counsel of its own choosing, any Contest involving any asserted Tax liability with respect to which Seller acknowledges liability indemnity may be deemed subject sought from the Seller pursuant to prosecution for Section 7.01. If the Seller elects to direct a crime Contest, the Seller shall within 60 days of receipt of the meaning notice of said subsectionasserted Tax liability notify the Purchaser of its intent to do so, if Landlordand the Purchaser shall cooperate and shall cause the ▇▇▇▇▇▇ Entities to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Purchaser or any officer▇▇▇▇▇▇ Entity may assume control of such Contest (at the Purchaser’s expense). However, directorin such case, partnernone of the Purchaser or any ▇▇▇▇▇▇ Entity may settle or compromise any asserted liability without prior written consent of the Seller; provided, memberhowever, principal that consent to settlement or employee of Landlord individuallycompromise shall not be unreasonably delayed or withheld. In any event, is charged with a crime the Seller may participate, at its own expense, in the Contest.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the ▇▇▇▇▇▇ Entities to cooperate, in the defense against or compromise of any kind Claim or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoContest.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Dow Chemical Co /De/), Stock Purchase Agreement (Rohm & Haas Co)
Contests. (a) Tenant If any written claim shall be made against any Indemnified Person or if any proceeding shall be commenced against any Indemnified Person (including a written notice of such proceeding) for any Taxes as to which Lessee shall have an indemnity obligation pursuant to Section 8.01, such Indemnified Person shall promptly notify Lessee in writing and shall not take any action with respect to such claim or Tax without the consent of Lessee for 30 days after the giving of such notice to Lessee; provided, however, that the failure to so notify Lessee shall not relieve Lessee of its obligations under this Article VIII unless such failure precludes Lessee from pursuing a contest of such Taxes; provided further, however, that, if such Indemnified Person shall be required by law or regulation to take action prior to the end of such 30-day period, such Indemnified Person shall, in such notice to Lessee, so inform Lessee, and such Indemnified Person shall not take any action with respect to such claim or Tax without the consent of Lessee before the date such Indemnified Person shall be required to take action. If requested by Lessee in writing within 30 days after the giving of such notice (or by such earlier date referred to in the preceding sentence), such Indemnified Person shall, at the expense of Lessee (including all costs, expenses and reasonable attorneys' and accountants' fees and disbursements), in good faith contest the validity, applicability or amount of such Taxes by, in the case of a contest involving only Taxes for which Lessee is liable (a "Lessee-Controlled Contest"), in the Lessee's sole discretion, or, in the case of any other contest (an "Indemnified Person-Controlled Contest"), in such Indemnified Person's sole discretion, (i) resisting payment thereof, (ii) not paying the same except under protest, if protest shall be necessary and proper, or (iii) if payment shall be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings; provided, however, that in no event shall such Indemnified Person be required to contest the imposition of any Tax for which Lessee is obligated pursuant to this Article VIII unless (t) Lessee shall have made all payments than payable under the terms of the Operative Documents; (u) no Lease Event of Default shall have occurred and be continuing; (v) prior to taking such action, Lessee shall have furnished, if requested by such Indemnified Person, such Indemnified Person with an opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ or other independent tax counsel selected by Lessee and reasonably acceptable to such Indemnified Person to the effect that a reasonable basis exists for such contest; (w) Lessee shall have acknowledged its liability to such Indemnified Person for an indemnity payment pursuant to this Article VIII as a result of such claim or Tax if and to the extent such Indemnified Person shall not prevail in the contest of such claim or Tax, provided that such acknowledgment shall be of no force or effect to the extent the contest is resolved on an articulated basis that clearly does not constitute a basis for indemnification hereunder; (x) Lessee shall have agreed in writing to pay such Indemnified Person all reasonable costs and expenses that such Indemnified Person shall incur in connection with contesting such claim (including all costs, expenses, reasonable legal and accounting fees and disbursements); (y) such Indemnified Person, Indenture Trustee and Owner Participant shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of, or the creation of any Lien (except if Lessee shall have adequately bonded such Lien or otherwise made provision to protect the interests of such Indemnified Person, Loan Participants and Owner Participant in a manner reasonably satisfactory to such Indemnified Person, Indenture Trustee and Owner Participant) on the Facility or any interest therein or in any interference with timely payments of Rent or any amount on the Loan Certificates from time to time becoming due and payable; and (z) if such contest shall involve payment of the claim, Lessee shall advance the amount thereof plus interest, penalties and additions to tax with respect thereto to such Indemnified Person on an interest- free basis and with no additional net after-tax cost to such Indemnified Person. In the sole discretion of an Indemnified Person, any contest required to be pursued by such Indemnified Person pursuant to this Article VIII shall be conducted by Lessee in the name of such Indemnified Person or Lessee. Lessee shall control the conduct (including the choice of forum) of a Lessee-Controlled Contest and the relevant Indemnified Person shall control the conduct (including the choice of forum) of an Indemnified Person-Controlled Contest. In addition, so long as no Lease Event of Default shall have occurred and be continuing, Lessee may, at its expense contestexpense, in the name of Lessee or, with the consent of such Indemnified Person (which consent will not unreasonably be withheld), in the name of such Indemnified Person, contest (and control the contest of), including by appropriate proceedings prosecuted diligently and in good faithway of suit for refund, the validityany Taxes as to which Lessee would have an indemnity obligation pursuant to Section 8.01, or applicability to the Premises, if such contest can be conducted independently of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for proceeding involving a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason tax liability of such contest;
(ii) Tenant Indemnified Person that is not indemnified by Lessee hereunder; provided, however, that Lessee may take no action in contesting any claim if Indenture Trustee, such Indemnified Person or Owner Participant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of have reasonably determined that such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or action will result in any violation material danger of sale, forfeiture or loss of, or the creation of any superior lease Lien (except if Lessee shall have adequately bonded such Lien or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of otherwise made provision to protect the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status interests of such proceedingsIndemnified Person and Owner Participant in a manner reasonably satisfactory to them) on the Facility or any interest therein or any interference with timely payments of Rent or any amounts on the Loan Certificates from time to time becoming due and payable.
(b) Without limiting Notwithstanding anything contained in Section 8.03(a), an Indemnified Person will not be required to contest or to permit Lessee to contest the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime imposition of any kind Taxes if such Indemnified Person (1) shall waive its right to indemnity under this Article VIII with respect to such Taxes and (2) shall pay to Lessee any amount previously paid or degree whatever, whether advanced by service Lessee pursuant to this Article VIII by way of a summons or otherwise, unless reimbursement with respect to such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoTaxes.
Appears in 2 contracts
Sources: Lease Agreement (New Tenneco Inc), Lease Agreement (New Tenneco Inc)
Contests. (a) Tenant mayThe Tax Indemnitee shall notify the Stockholders’ Representative in writing promptly, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithany event within thirty (30) days, of becoming aware of the validity, or applicability commencement after the Closing Date of any Contest that could give rise to an indemnification payment under Section 7.1 (the specific issues that could give rise to such indemnification are referred to herein as “Tax Indemnifiable Matters”). Such notice shall contain factual information (to the Premises, extent known to the Tax Indemnitee or its Affiliates) with respect to Tax Indemnifiable Matters in reasonable detail and shall include copies of any Requirement with which Tenant is obligated to comply pursuant notice or other document (to the provisions of this Lease, and Landlord shall cooperate with Tenant extent such notice or document relates to Tax Indemnifiable Matters) received from any Governmental Authority in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsrespect thereof.
(b) Without limiting The Tax Indemnitee shall control all Contests, but to the application of subsection (a)(i) above theretoextent that a Contest involves issues for which the Tax Indemnitee may be entitled to a payment under Section 7.1(a), Landlord the Stockholders’ Representative or its duly appointed representatives shall be deemed subject allowed to prosecution attend all meetings between the Tax Indemnitee and the Governmental Authority in question and shall be provided with copies of all material correspondence and documents, to the extent relating to Tax Indemnifiable Matters. Neither the Tax Indemnitee nor any of its Affiliates may settle or compromise any asserted Tax liability in a Contest, to the extent relating to Tax Indemnifiable Matters, without the consent of the Stockholders’ Representative, which consent shall not be unreasonably withheld or delayed. For the avoidance of doubt, a Tax Indemnitee’s decision not to contest a Contest will be considered to be a settlement of that Contest for a crime within purposes of the meaning preceding sentence. For purposes of said subsectionthis Section 7.5(b), if Landlordthe Tax Indemnitee and the Stockholders’ Representative cannot come to agreement as to whether consent is being, or will be, unreasonably withheld or delayed within 30 days of the Stockholders’ Representative’s initial refusal to provide consent, such disagreement shall be resolved by the Accounting Firm. The determination of the Accounting Firm shall be final and binding on both parties and may be entered and enforced in any officercourt having jurisdiction.
(c) Notwithstanding the foregoing, directorParent or one of its Affiliates, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be, shall have the right to prohibit the Stockholders’ Representative from participating in any Contest as it relates to a specific matter if Parent and Tax Indemnitee(s) is required have waived their rights to plead or answer theretoindemnity for such matter.
Appears in 2 contracts
Sources: Merger Agreement (GXS Worldwide, Inc.), Merger Agreement (Open Text Corp)
Contests. (a) Tenant mayAfter the Closing, at its expense contesteach party shall promptly notify the other parties in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding, by appropriate proceedings prosecuted diligently and in good faithwhich, if determined adversely to the taxpayer, would be grounds for indemnification under Section 6.03; provided, however, that the failure to give such notice will not affect any party's right to indemnification under this Agreement except to the extent, if any, that, but for such failure, the validity, or applicability to indemnifying party would have avoided the Premises, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant Tax Liability in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsquestion.
(b) Without limiting In the application case of subsection an audit or administrative or judicial proceeding (a)(ia "Contest") above theretothat relates to a Pre-Closing Period, Landlord the Seller shall have the right, at its expense, to participate in and control the conduct of such Contest, but only to the extent that such Contest relates solely to a potential adjustment to Tax Liability for which the Seller has acknowledged, in writing, its liability under Section 6.03 to hold the Purchaser and the Company harmless against the full amount of any adjustment which may be made as a result of such Contest. The Purchaser also may participate in any such Contest, and, if the Seller does not assume the defense of any such Contest, the Purchaser may defend the same in such manner as it may deem appropriate, including settling such Contest after five days' prior written notice to the Seller setting forth the terms and conditions of settlement. Notwithstanding anything to the contrary contained in this Agreement, in the event that issues relating to a potential adjustment for which the Seller has acknowledged its liability in writing are required to be contested in the same Contest as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to control the Contest with respect to the latter issues.
(c) In the case of a Contest that relates to a Straddle Period, or otherwise with respect to issues relating to a potential adjustment for which both the Seller (as evidenced by its written acknowledgement of liability under Section 6.03), on the one hand, and the Purchaser, on the other hand, could be liable, (i) the Seller and the Purchaser may participate in the Contest, and (ii) such Contest shall be deemed subject controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future taxable periods. The principle set forth in this Section 6.04(c) also shall govern for purposes of deciding any issue that must be decided jointly (including choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article VI by the Purchaser and the Seller.
(d) Notwithstanding anything to prosecution for the contrary herein, neither party shall enter into any compromise or agree to settle any claim pursuant to a crime within Contest, which would materially adversely affect the meaning other party without the prior written consent of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoother party.
Appears in 2 contracts
Sources: Limited Liability Company Purchase Agreement (Macquarie Infrastructure CO Trust), Limited Liability Company Purchase Agreement (Macquarie Infrastructure CO LLC)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validityPurchaser shall reasonably promptly after becoming aware thereof notify the Seller in writing of the commencement of any Tax audit or administrative or judicial proceeding and shall also separately notify the Seller in writing of any demand or claim on the Purchaser which, or applicability if determined adversely to the Premises, taxpayer or after the lapse of time would be grounds for indemnification by the Seller under this Article VII. Such notice shall contain factual information (to the extent known to the Purchaser) describing the asserted Tax liability in reasonable detail and shall include copies of any Requirement with which Tenant is obligated notice or other document received from any taxing authority in respect of any such asserted Tax liability. If the Purchaser fails to comply pursuant to give the provisions Seller reasonably prompt notice of an asserted Tax liability as required by this LeaseSection 7.04, and Landlord shall cooperate with Tenant in such proceedings, provided that:
then (i) Landlord if the Seller is precluded by the failure to give reasonably prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then the Seller shall not be subject have any obligation to criminal penalty indemnify for any loss or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason damage arising out of such contest;
asserted Tax liability, and (ii) Tenant if the Seller is not so precluded from contesting but such failure to give reasonably prompt notice results in an actual detriment to the Seller, then any amount which the Seller is otherwise required to pay the Purchaser pursuant to this Article VII with respect to such liability shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer be reduced by reason the amount of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsdetriment.
(b) Without limiting The Seller, promptly after receiving notice, may elect to direct, through counsel of its own choosing and at its own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought against the application Seller under this Article VII (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "CONTEST"). If the Seller elects to direct the Contest of subsection an asserted Tax liability, the Purchaser shall cooperate in all reasonable respects, at the Seller's expense, in each phase of such Contest. If the Seller does not either reasonably promptly give notice to direct the Contest or commence the direction of the Contest or if it contests its obligation to indemnify under Section 7.01, the Purchaser may pay, compromise or contest, at its own expense, such asserted liability without waiving any of its rights to indemnification hereunder. However, in such case, the Purchaser may not settle or compromise any asserted liability over the objection of the Seller; PROVIDED, HOWEVER, that the Seller's consent to settlement or compromise shall not be unreasonably withheld or delayed. In any event, each of the Purchaser and the Seller may participate, at their own expense, in the Contest. If the Seller chooses to direct the Contest, the Purchaser shall promptly empower (a)(iby power of attorney and such other documentation as may be appropriate) above theretosuch representatives of the Seller as Seller may designate to represent the Purchaser or its successor in the Contest insofar as the Contest involves an asserted Tax liability for which the Seller would be liable under this Article VII. If, Landlord with respect to any proposed settlement referred to in clause (x) of the previous sentence, the Seller proposes in good faith to settle a claim, suit, action or proceeding with respect to any Tax, which settlement offer is accepted by the relevant taxing authority, the Purchaser may elect to continue to contest such claim, suit, action or proceeding; PROVIDED that notwithstanding how such matter is ultimately settled or decided, the liability of the Seller with respect to such claim, suit, action or proceeding shall be deemed subject no greater than the amount which would have been payable if the Purchaser had consented to prosecution the settlement proposed by the Seller.
(c) The Purchaser shall have the sole obligation and right to direct, at its own expense, a Contest regarding any Tax Return for any taxable period commencing after the Closing Date in the case of a crime within Tax Return which is filed on a combined, consolidated, unitary or similar basis with the meaning of said subsectionPurchaser; PROVIDED, if LandlordHOWEVER, or any officer, director, partner, member, principal or employee of Landlord individually, is charged that the Purchaser shall advise and consult with a crime the Seller regarding the status of any kind such Contest that involves an asserted Tax liability for which the Seller would be liable under this Article VII and PROVIDED, FURTHER, that, Purchaser shall not, without the prior written consent of the Seller (which shall not be unreasonably withheld or degree whatever, whether by service of a summons or otherwise, unless delayed) settle any such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretocontest.
Appears in 1 contract
Sources: Asset Purchase Agreement (White Mountains Insurance Group LTD)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing Date, the validityBuyer shall promptly notify the Sellers in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding involving the Company or any of its Subsidiaries which, or applicability if determined adversely to the PremisesCompany or relevant Subsidiary, of any Requirement with which Tenant is obligated would be grounds for indemnification under this Article 7; provided, -------- however, that a failure to comply pursuant give such notice will not affect a Buyer Indemnified ------- Person's right to indemnification hereunder except to the provisions of this Leaseextent, and Landlord shall cooperate with Tenant if any, that, but for such failure, the Sellers could have avoided the Tax liability in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsquestion.
(b) Without limiting In the application case of subsection an audit or administrative or judicial proceeding that relates to any Pre-Closing Period, the Sellers shall have the right at their own expense to control the conduct of such audit or proceeding; provided -------- that within 30 days after the Sellers have received the written notice from the Buyer that is required under Section 7.3(a) above, and prior to taking any action with respect to such audit or administrative or judicial proceeding, the Sellers acknowledge in writing their joint liability under Section 7.3(b)(i) of this Agreement to hold any Buyer Indemnified Person harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding that relates to the Pre-Closing Period (a)(ito the extent such amount exceeds the Closing Balance Sheet Tax Reserve after giving effect to all prior and concurrent payments made pursuant to Section 7.3(b)(i) above theretoof this Agreement to any Buyer Indemnified Person); provided, Landlord further, that the Sellers may not agree -------- ------- to a settlement or compromise to any such audit or proceeding that may reasonably be expected to have an adverse effect on the tax liability of the Company for a taxable period after the Closing Date without the prior written consent of the Buyer; provided, -------- further, that if the Buyer does not consent to such settlement or compromise, ------- the Sellers' liability to indemnify the Buyer as a result of such audit or proceeding shall be deemed subject limited to prosecution for a crime within the meaning of said subsectionamount that the Sellers would have paid had the Buyer consented to such settlement or compromise. The Buyer also may participate in any such audit or proceeding at its own expense and, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime the Sellers do not assume the defense of any kind such audit or degree whateverproceeding, whether by service the Buyer may defend the same at its own expense in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding, without any effect to any Buyer Indemnified Person's right to indemnification under this Article 7.
(c) In the case of an audit or administrative or judicial proceeding that relates to the Interim Period, the Buyer shall have the right at its own expense to control the conduct of such audit or proceeding; provided that the -------- Buyer may not agree to a summons settlement or otherwise, unless compromise in any such charge is withdrawn before Landlord audit or such officer, director, partner, member, principal or employee proceeding without the prior written consent of the Seller's Representative (as defined in Section 12.5 below), which consent shall not be unreasonably withheld. The Sellers also may participate in any such audit or proceeding at their own expense and, if the case Buyer does not assume the defense of any such audit or proceeding, the Sellers may be) is required defend the same at its own expense in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding, without any effect to plead or answer theretothe Sellers' right to indemnification under this Article 7.
Appears in 1 contract
Contests. (a) Tenant mayAfter the Closing Date, at its expense contest, by appropriate proceedings prosecuted diligently each of the Seller and the Purchaser shall promptly notify the other party in good faithwriting upon receipt of written notice of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on the Seller, the validityPurchaser or the Company or any Subsidiary which, or applicability if determined adversely to the Premisestaxpayer or after the lapse of time, would be grounds for indemnification by the other party under Section 7.01. Such notice shall contain factual information (to the extent known to the notifying party) describing the asserted Tax liability in reasonable detail and shall include copies of any Requirement with which Tenant is obligated notice or other document received from any taxing authority in respect of any such asserted Tax liability. If the indemnitee under Section 7.01 fails to comply pursuant give the indemnitor under Section 7.01 prompt notice of an asserted Tax liability as required by this Section 7.03, then the indemnitor shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability but only to the provisions of this Lease, and Landlord shall cooperate with Tenant extent that failure to give such notice results in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as detriment to the status of such proceedingsindemnitor.
(b) Without limiting In the application case of subsection (a)(i) above theretoan audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date, Landlord the Seller shall have the sole right, at its expense, to control the conduct of such audit or proceeding, but only to the extent that such audit or proceeding relates to a Tax for which the Seller has a potential indemnification obligation under Section 7.01; provided, however, that if the results of such contest could reasonably be expected to have a material Tax cost to Purchaser, the Company, or the Subsidiaries for any taxable period including or ending after the Closing Date, then Seller and Purchaser shall jointly control the defense and settlement of any such contest and each party shall cooperate with the other party at its own expense and there shall be deemed no settlement or closing or other agreement with respect thereto without the consent of the other party, which consent shall not be unreasonably withheld and, if the Seller does not assume the defense of any such audit or proceeding, the Purchaser may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding; provided, however, that the Purchaser shall not settle any such audit or proceeding without the consent of the Seller, which consent shall not be unreasonably withheld. If the Seller chooses to control the contest, the Purchaser shall promptly empower and shall cause the Company or Subsidiary or other party promptly to empower (by power of attorney and such other documentation as may be appropriate) such representatives of the Seller as it may designate to represent the Purchaser, Company or Subsidiary or other party or its successor in the contest insofar as the contest involves an asserted tax liability for which the Seller would be liable under Section 7.01. Purchaser shall have sole control over the defense and settlement of any contest relating to taxable periods or portions thereof that begin on or after the Closing Date (including, subject to prosecution Section 7.03(c) hereof, any Taxes allocated to such period under Section 7.01(d) hereof) or relating to taxable periods or portions thereof ending on or before the Closing Date provided the Taxes to which such contest relates are Taxes for which Seller is not liable under Section 7.01(a) hereof, provided, however, that if the results of any such contest otherwise controlled by Purchaser could reasonably be expected to have a material Tax cost or otherwise materially adversely affect the Seller or the Seller Group, then the Seller and Purchaser shall jointly control the defense and settlement of any such contest and each party shall cooperate with the other party at its own expense and there shall be no settlement or closing or other agreement with respect thereto without the consent of the other party, which consent shall not be unreasonably withheld.
(c) With respect to periods beginning before the Closing Date and ending after the Closing Date, (i) each party may participate in an audit or proceeding which relates to any such period and (ii) such audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods; provided that neither party shall settle any such audit or proceeding without the consent of the other, which consent shall not be unreasonably withheld. The principle set forth in the preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (in particular, choice of judicial forum) in situations in which separate issues are otherwise controlled hereunder by the Purchaser and the Seller.
(d) The Purchaser and the Seller agree to cooperate, and the Purchaser agrees to cause the Company and Subsidiaries to cooperate, in the defense against or compromise of any claim in any audit or proceeding.
(e) Seller shall promptly notify Purchaser of the commencement of any claim, audit, examination or other written change or adjustment received by Seller, in each case relating to the Company or the Subsidiaries, by any taxing authority which could reasonably be expected to affect the liability of Purchaser, the Company or the Subsidiaries for a crime within material amount of Taxes, and Seller shall keep Purchaser informed of the meaning progress thereof. The failure to provide such notice shall not affect the indemnification obligations under this Section unless the indemnified party is materially prejudiced as a result of said subsection, if Landlord, or any officer, director, partner, member, principal or employee such failure.
(f) Purchaser shall promptly notify Seller of Landlord individually, is charged with a crime the commencement of any kind claim, audit, examination or degree whateverother written change or adjustment received by Purchaser, whether in each case relating to the Company or the Subsidiaries for periods up to and including the Closing Date, by service any taxing authority which could reasonably be expected to affect the liability of Seller, the Company or the Subsidiaries (with respect to periods up to and including the Closing Date) for a summons or otherwisematerial amount of Taxes, and Purchaser shall keep Seller informed of the progress thereof. The failure to provide such notice shall not affect the indemnification obligations under this Section unless the indemnified party is materially prejudiced as a result of such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretofailure.
Appears in 1 contract
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing Date, the validityPurchaser or any Company shall promptly notify each Seller, and a Seller shall promptly notify the Purchaser, upon learning of the commencement of any Tax audit or applicability administrative or judicial proceeding or of any demand or claim on any Seller, the Purchaser or any Company which, if determined adversely to the Premises, taxpayer or after the lapse of any Requirement with which Tenant is obligated to comply pursuant time would be grounds for indemnification under Section 7.01. Such notice shall be in writing and shall contain factual information (to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as extent known to the status of such proceedings.
(b) Without limiting the application of subsection (a)(i) above theretoSellers, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord Purchaser or such officerCompany, director, partner, member, principal or employee (as the case may be) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax liability. If a party fails to give prompt notice of an asserted Tax liability as required by this Section 7.03, then if the indemnifying party is precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then the indemnifying party shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability.
(b) Any Seller may elect to direct, through counsel of its own choosing and at its own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 7.01 (any such audit, claim for refund or proceeding relating to an asserted Tax liability is referred to herein as a "Contest"). However, the Purchaser may, at its own expense, continue to participate in the contest. If any Seller elects to direct a Contest, it shall, within 30 calendar days of receipt of the Purchaser's notice of asserted Tax liability, notify the Purchaser of its intent to do so, and the Purchaser shall cooperate and shall cause each Company or its respective successor or successors to cooperate, at such Seller's expense, in each phase of such Contest. If no Seller elects to direct the Contest or fails to notify the Purchaser of its election as herein provided, the Purchaser or any Company may pay, compromise or contest, at its own expense, such asserted Tax liability. However, in such case, neither the Purchaser nor any Company may settle or compromise any asserted Tax liability over the objection of any Seller; provided, however, that consent to settlement or compromise shall not be unreasonably withheld. In any event, any Seller may participate, at its own expense, in the Contest. If any Seller chooses to direct the Contest, the Purchaser shall promptly empower and shall cause each Company or its respective successor promptly to empower (by power of attorney and such other documentation as may be necessary and appropriate) the designated representatives of such Seller to represent the Purchaser or such Company or its successor in the Contest insofar as the Contest involves an asserted Tax liability for which such Seller would be liable under Section 7.01. Notwithstanding the foregoing, the Purchaser's prior consent, (which consent shall not be unreasonably withheld) shall be required to plead for any settlement of a contest that increase items of income, or answer theretodecreases items of loss, deduction or credit for the Purchaser or any Company in periods after the Closing Date.
Appears in 1 contract
Sources: Purchase Agreement (Carematrix Corp)
Contests. For purposes of this Agreement, a "Contest" is any audit, court proceeding or other dispute with respect to any tax matter that affects an Acquired Entity. Unless Purchaser has previously received written notice from Sellers of the existence of such Contest, Purchaser shall give written notice to Sellers of the existence of any Contest relating to a Tax matter arising in a period ending on or before the Closing Date within ten (a10) Tenant maydays from the receipt by Purchaser of any written notice of such Contest, but no failure to give such notice shall relieve the Seller of any liability hereunder. Unless Sellers have previously received written notice from Purchaser of the existence of such Contest, the applicable Seller shall give written notice to Purchaser of the existence of any Contest for which Purchaser has responsibility within ten (10) days from the receipt by such Seller of any written notice of such Contest. Purchaser, on the one hand, and Sellers, on the other, agree, in each case at no cost to the other party, to cooperate with the other and the other's representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall include, but not be limited to, making available to the other party, during normal business hours, all books, records, Tax Returns, documents, files, other information (including working papers and schedules), officers or employees (without substantial interruption of employment) or other relevant information necessary or useful in connection with any Contest requiring any such books, records and files. If Sellers could be liable for any Tax resulting from such Contest, Sellers shall, at its their election, have the right to represent an Acquired Entity's interests in any Contest relating to a Tax matter arising in a period ending on or before the Closing Date or with respect to KSL DC Corporation, arising in any period, to employ counsel of their choice at Sellers' expense contestand to control the conduct of such Contest, by appropriate proceedings prosecuted diligently including settlement or other disposition thereof; provided, however, that Purchaser shall have the right to consult with the Sellers regarding any such Contest that may affect such Acquired Entity for any periods ending after the Closing Date at Purchaser's own expense; and in good faithprovided further, the validity, that any settlement or applicability to the Premises, other disposition of any Requirement such Contest, other than with respect to a Contest that may affect KSL DC Corporation, may only be with the consent of Purchaser, which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall consent will not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsunreasonably withheld.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Strategic Hotel Capital Inc)
Contests. Following the Closing, Purchaser shall control all Contests (aas defined below) Tenant mayrelating to Taxes of the Company or any of its Subsidiaries, except as otherwise provided in this Section 10.4. In the case of a Contest that relates solely and exclusively to Pre-Closing Periods or for which Purchaser may otherwise seek indemnification from Seller under this Agreement; provided, that Seller shall have acknowledged its obligation to indemnify Purchaser under this Article X, Seller shall have the right, at its expense contestexpense, by appropriate proceedings prosecuted diligently and in good faith, to control the validity, or applicability to the Premises, conduct of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Leasesuch Contest, and Landlord Purchaser shall cooperate with Tenant have the right, at its expense, to participate in such proceedingsContest. In the case of a Contest that relates to Pre-Closing Periods and Post-Closing Periods, provided that:
Seller shall have acknowledged its obligation to indemnify Purchaser under this Article X, Seller shall have the right, bearing its own expenses, to jointly conduct such Contest with Purchaser with respect to Tax items for which Purchaser may seek indemnification from Seller. If Seller chooses not to control such Contest, Seller shall have the right, at its expense, to participate in such Contest. The Party controlling a Contest for a Pre-Closing Period shall in any event keep the other Party informed of the progress of such Contest, shall promptly provide the other Party with copies of all material documents (iincluding material notices, protests, briefs, written rulings and determinations and correspondence) Landlord pertaining to such audit or proceeding and shall not settle such Contest without the other Party’s advance written consent, which consent shall not be subject unreasonably withheld, conditioned or delayed. For purposes of this Agreement, a “Contest” is any audit, administrative or judicial proceeding or other dispute with respect to criminal penalty or to prosecution for a crime nor shall any Tax matter that affects the Premises Company or any part thereof be subject to being condemned or vacatedof its Subsidiaries, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedings.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (New Media Investment Group Inc.)
Contests. For purposes of this Agreement, a "Contest" is any audit, court proceeding or other dispute with respect to any Tax matter that affects the Acquired Companies. Unless Silgan previously has received written notice from the Selling Parties of the existence of such Contest, Silgan shall give written notice to the Selling Parties of the existence of any Contest relating to a Tax matter that is the Selling Parties' responsibility under Section 9.1(b) within ten (a10) Tenant mayBusiness Days from the receipt by Silgan of any written notice of such Contest. Unless the Selling Parties previously have received written notice from Silgan of the existence of such Contest, the Selling Parties shall give written notice to Silgan of the existence of any Contest for which Silgan has responsibility within ten (10) Business Days from the receipt by the Selling Parties of any written notice of such Contest. Silgan, on the one hand, and the Selling Parties, on the other, agree, in each case at no cost to the other Party, to cooperate with the other and the other's representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall include, but not be limited to, making available to the other Party, during normal business hours, all books, records, returns, documents, files, other information (including working papers and Schedules), officers or employees (without substantial interruption of employment) or other relevant information necessary or useful in connection with any Contest requiring any such books, records and files. The Selling Parties shall, at their election, have the right to represent the Acquired Companies' interests in any Contest relating to a Tax matter arising in a period ending on or before the Closing Date, to employ counsel of their choice and to control the conduct of such Contest, including settlement or other disposition thereof; provided, however, that Silgan, at its expense contestown expense, by appropriate proceedings prosecuted diligently and in good faith, shall have the validity, or applicability right to consult with the Premises, Selling Parties regarding any such Contest that may affect the Acquired Companies for any periods ending after the Closing Date. Silgan shall have the right to control the conduct of any Requirement Contest with respect to any Tax matter arising in a period ending after the Closing Date; provided, however, that the Selling Parties, at their own expense, shall have the right to consult with Silgan regarding any such Contest that may affect the Acquired Companies for any periods ending on or before the Closing Date; and provided further that any settlement or other disposition of any such Contest may only be with the consent of the Selling Parties, which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord consent shall not be subject to criminal penalty unreasonably withheld, conditioned or to prosecution for a crime nor shall the Premises delayed; and provided further that any settlement or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation other disposition of any superior lease or superior mortgagesuch Contest that affects both the Selling Parties and the Purchaser (i.e., or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition affects taxable periods both before and after the Closing Date) may only be with the consent of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsboth Parties.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Contests. (ai) Tenant mayIf a Governmental Entity asserts a claim for Taxes against a Group Company, then the party hereto first receiving notice (whether directly, or indirectly through an Affiliate of such party) shall promptly provide Parent, the Surviving Corporation and the Representative written notice specifying in reasonable detail the basis for such claim, and shall include a copy of the relevant portion of any correspondence received from the Governmental Entity in respect of any such inquiry, claim, assessment, audit or similar event with respect to Pre-Closing Taxes for which Sellers may be liable under this Agreement (a “Tax Matter”); provided, however, that the failure of such party to give such prompt and detailed notice shall not relieve the other party of any of its obligations under this Section 7.2, except if and only if to the extent that the other party is actually and materially prejudiced thereby. The Sellers, at its expense their sole expense, shall have the authority to represent the interests of the Surviving Corporation with respect to any Tax Matter before the IRS, any other Governmental Entity or any court and shall have the sole right to control the defense, compromise or other resolution of any Tax Matter, if (i) the Representative provides to Parent a written notice in which the Representative elects to contest, by appropriate proceedings prosecuted and to control the defense or prosecution of, such Tax Matter, (ii) such Tax Matter relates solely to Taxes for which Seller would be responsible under Section 7.2(a)(i) or Section 10.2(a) and (iii) as long as the Escrow Funds remaining in the Escrow Account exceed the amount of such Tax Matter. The Representative shall keep Parent and the Surviving Corporation fully and timely informed with respect to the commencement, status and nature of any Tax Matter (including providing to Parent copies of relevant portions of all written materials relating to such Tax Matter). The Representative shall defend or prosecute the Tax Matter diligently and in good faith. The Representative shall, in good faith, allow Parent or its authorized representative to attend and participate in, all conferences, meetings and proceedings relating to such Tax Matter and to make comments regarding the validity, conduct of or applicability to the Premises, positions taken in any such proceeding. The Representative shall not enter into any settlement or compromise of any Requirement Tax Matter with any Governmental Entity that could reasonably be expected to adversely affect the Parent or the Surviving Corporation without the prior written consent of the Parent or the Surviving Corporation, which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord consent shall not unreasonably be subject to criminal penalty withheld or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;delayed.
(ii) Tenant Parent shall defendhave the sole right to control any audit or examination by any Governmental Entity, indemnify initiate any claim for refund or amend any Tax Return, and hold harmless Landlord from contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of, or relating to, the income, assets or operations of the Surviving Corporation, for all taxable periods ending after the Closing Date, except for an Interim Tax Period, as to which Parent and all actions, the Surviving Corporation shall (i) keep the Representative fully and timely informed with respect to such proceedings, claims(ii) in good faith, deficienciesallow the Representative to make comments to the Parent and the Surviving Corporation regarding the conduct of or positions taken in any such proceeding, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result allow the Representative, on behalf of the Sellers, to participate at its own expense in any violation of any superior lease or superior mortgagesuch proceeding, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant not enter into any settlement or compromise that could reasonably be expected to adversely affect the Sellers without the prior written consent of the Representative, which consent shall keep Landlord advised as to the status of such proceedingsnot unreasonably be withheld or delayed.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Contests. (a) Tenant mayIn the event any Tax Authority informs Seller, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, on the validityone hand, or applicability to Purchaser or Company, on the Premisesother, of any Requirement notice of any proposed assessment or the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchaser and its Affiliates or the Company (a “Contest”) with respect to which Tenant is obligated the other Party would reasonably be expected to comply pursuant incur liability hereunder, the Party so informed shall promptly notify the other party of such matter; provided, however, the failure to give such notice shall not affect the indemnification provided hereunder, except to the provisions of this Lease, extent that the liable Party is materially prejudiced by such delay. Such notice shall contain factual information (to the extent known) describing any asserted Tax liability in reasonable detail and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, accompanied by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation copies of any superior lease notice or superior mortgage, or if other documents received from any Tax authority with respect to such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsmatter.
(b) Without limiting In the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service case of a summons Contest that relates to Taxable Periods ending on or otherwiseprior to the Closing Date, unless the Seller shall have the sole right, at its expense, to control the conduct of such charge is withdrawn Contest, provided that with respect to any Contest that could adversely affect the Purchaser or the Company in a Taxable Period ending after the Closing Date, the Seller (i) must first consult in good faith with the Purchaser before Landlord taking any action with respect to such Contest, (ii) shall permit the Purchaser, and counsel of its own choosing, to participate in the Contest, and (iii) shall not settle or compromise any such officerContest without the approval of Purchaser (which approval shall not be unreasonably conditioned, directordelayed or withheld).
(c) With respect to Taxes for any Straddle Period, partner, member, principal or employee (as the case Seller may be) is required elect to plead or answer theretoparticipate at its expense in any Contest involving any asserted Tax liability with respect to which indemnity may be sought from the Seller pursuant to Section 9.1.
Appears in 1 contract
Sources: Stock Purchase Agreement (Employers Holdings, Inc.)
Contests. In the case of any notice of Tax deficiency, proposed Tax adjustment, Tax assessment, Tax audit, Tax examination or other administrative or court proceeding, suit, dispute or other claim with respect to Taxes (aa “Tax Claim”) Tenant mayrelating to any Tax period ending on or before the Closing Date that, if determined adversely to the Company would be grounds for a claim for indemnity pursuant to this Section 6.5, Parent shall upon receipt of such Tax Claim, promptly, but no later than 15 days, inform the Shareholders’ Agent of such Tax Claim and the Shareholders’ Agent (at its sole cost and expense conteston behalf of the Effective Time Holders) shall have the right to control the conduct of such Tax Claim and shall have the right to settle such Tax Claim; provided, by appropriate proceedings prosecuted diligently and in good faithhowever, the validity, or applicability to the Premises, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord that Parent may fully participate in the dispute of such Tax Claim, (ii) the Shareholders’ Agent shall keep Parent timely informed with respect to the commencement, status and nature of any such Tax Claim and (iii) the Shareholders’ Agent shall not settle, compromise or dispose of any Tax Claim without the consent of Parent, which consent shall not be subject unreasonably withheld, conditioned or delayed. In the case of any Tax Claim relating to criminal penalty the Taxes of any Straddle Period, Parent and the Shareholders’ Agent may each participate, at their own expense, in the audit or to prosecution for a crime nor proceeding, and the audit or proceeding shall be controlled by Parent or the Premises Shareholders’ Agent, whichever would bear the burden of the greatest portion of the adjustment; provided, however, that the party controlling the Straddle Period Tax Claim (i) shall not settle such audit or any part thereof proceeding without the consent of the other party, which consent shall not be subject to being condemned unreasonably withheld, conditioned or vacated, by reason of non-compliance or otherwise by reason of such contest;
delayed and (ii) Tenant shall defendkeep the other party timely informed with respect to the commencement, indemnify status and hold harmless Landlord from and against nature of any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursementssuch Tax Claim. The failure by Parent to provide the notice contemplated by this Section 6.5(f) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of affect the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsEffective Time Holders’ indemnification obligations under Section 6.5(a).
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Amicus Therapeutics Inc)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validityPurchaser shall promptly notify the Sellers’ Representative in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser or the Company which, or applicability if determined adversely to the Premisestaxpayer, of any Requirement with which Tenant is obligated would be grounds for indemnification under this Article VI; provided, however, that the failure to comply pursuant give such notice will not affect the Purchaser’s right to indemnification under this Article VI except to the provisions of this Leaseextent, and Landlord shall cooperate with Tenant in if any, that, but for such proceedingsfailure, provided that:
(i) Landlord shall not be subject to criminal penalty the Sellers could have avoided all or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition portion of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsTax liability in question.
(b) Without limiting In the application case of subsection an audit or administrative or judicial proceeding that relates to taxable periods ending on or before the Closing Date, provided that, and only to the extent that, the Sellers acknowledge in writing their liability under this Agreement to hold the Purchaser and the Company harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding, the Sellers’ Representative shall have the right at his expense to participate in and control the conduct of such audit or proceeding; the Purchaser also may participate in any such audit or proceeding at its own expense and, if the Sellers’ Representative does not assume the defense of any such audit or proceeding, the Purchaser may defend the same in such manner as it may deem appropriate, including settling such audit or proceeding after fifteen days prior written notice to the Sellers’ Representative setting forth the terms and conditions of settlement. Notwithstanding anything to the contrary contained in Section 8.05, in the event that issues relating to a potential adjustment for which the Sellers have acknowledged liability are required to be contested in the same audit or proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to control the audit or proceeding with respect to the latter issues; provided, however, that the Purchaser shall not have the right to settle any such matter without the consent of the Sellers’ Representative, which consent shall not be unreasonably withheld.
(a)(ic) above theretoNotwithstanding anything to the contrary contained in Section 6.04, Landlord with respect to issues relating to a potential adjustment for which both the Sellers (as evidenced by their written acknowledgement under this Section 6.04) and the Purchaser or the Company could be liable, (i) both the Sellers’ Representative and the Purchaser may participate in the audit or proceeding; (ii) the audit or proceeding shall be deemed subject controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future taxable periods; and (iii) the controlling party shall not settle any such matter without the consent of the non-controlling party (which consent shall not be unreasonably withheld). The principle set forth in this Section 6.04(c) also shall govern for purposes of deciding any issue that must be decided jointly (including choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article VI by the Purchaser and the Sellers’ Representative.
(d) With respect to prosecution any Tax audit or proceeding for a crime within taxable period that begins before the meaning Closing Date, neither the Purchaser nor the Sellers’ Representative shall enter into any compromise or agree to settle any claim pursuant to such audit or proceeding which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of said subsectionthe other party, if Landlordwhich consent may not be unreasonably withheld. The Purchaser and the Sellers’ Representative agree to cooperate, and the Purchaser agrees to cause the Company to cooperate, in the defense against or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime compromise of any kind claim in any such audit or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoproceeding.
Appears in 1 contract
Sources: Stock Purchase Agreement (Lincoln Educational Services Corp)
Contests. Buyer agrees to give written notice to Sellers upon receipt of any written notice relating to the assertion of any claim, or the commencement of any Proceeding by a Governmental Authority in respect of Taxes for which the Sellers may be liable pursuant to §9(a) (a) Tenant mayeach, at its expense a “Tax Claim”); provided, that any failure or delay in giving such notice shall not affect Buyer’s right to indemnification hereunder, unless the failure or delay in giving such notice results in a bar or forfeiture of the right or privilege to contest, by appropriate proceedings prosecuted diligently and in good faithprotest or appeal the Tax Claim. In such event, Buyer will have no right to indemnification of the Tax Claim. With respect to any Tax Claim relating to a Pre-Closing Tax Period, the validitySellers may assume and control all proceedings taken in connection with such Tax Claim; provided, or applicability to however, the Premises, Sellers shall consult with Buyer in the negotiation and settlement of any Requirement such Tax Claim and Sellers shall not, without the written consent of Buyer, settle or compromise any Tax Claim in a manner that would reasonably be expected to have a Material Adverse Effect on any Tax period of Company ending after the Closing Date. All other Tax Claims with respect to Company shall be controlled by Buyer; provided, however, Buyer shall consult with the Sellers in the negotiation and settlement of any post-Closing Tax period (including any Straddle Period) Tax Claim and Buyer shall not, without the written consent of the Sellers, which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord consent shall not be subject to criminal penalty unreasonably withheld, settle or to prosecution for compromise any such Tax Claim in a crime nor shall manner that could have any material impact on the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsSellers’ indemnification obligations hereunder.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Contests. (ai) Tenant mayIf a Governmental Authority asserts a claim for Taxes against Parent, at its expense contestthe Surviving Corporation and/or the Surviving Entity or begins an examination or audit with respect to which the Shareholder Parties would have an indemnification obligations pursuant to this Agreement (any such claim or proceeding, a “Tax Claim”), then the party hereto first receiving notice (whether directly, or indirectly through an Affiliate of such party) of such Tax Claim shall promptly provide to the other parties hereto written notice specifying in reasonable detail the basis for such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the Governmental Authority in respect of such Tax Claim; provided, however, that the failure by appropriate proceedings prosecuted Parent to notify the Shareholder shall not relieve the Shareholder Parties of any liability or indemnification obligation pursuant to this Agreement, except to the extent the Shareholder Parties are actually and materially prejudiced by such failure.
(ii) The Shareholder shall control the defense or prosecution of any Tax Claim for a Pre-Closing Tax Period that (y) does not include a Straddle Period and (z) is commenced within four (4) years subsequent to the Closing Date (each, a “Shareholder Pre-Closing Tax Claim”). For any Shareholder Pre-Closing Tax Claim, (A) the Shareholder shall defend or prosecute the Shareholder Pre-Closing Tax Claim diligently and in good faith; (B) the Shareholder shall not, without the validityprior written consent of Parent, or applicability to the Premises, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord consent shall not be subject to criminal penalty unreasonably withheld, conditioned, or to prosecution for a crime nor shall the Premises delayed, enter into any compromise or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason settlement of such contest;
Shareholder Pre-Closing Tax Claim; (iiC) Tenant the Shareholder shall defend, indemnify inform Parent of all material developments and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses events relating to such Shareholder Pre-Closing Tax Claim (including court costs providing to Parent copies of relevant portions of all written materials relating to such Shareholder Pre-Closing Tax Claim); (D) Parent shall provide or cause to be provided to the Shareholder any information reasonably requested by the Shareholder relating to such Shareholder Pre-Closing Tax Claim and reasonable legal fees Parent shall otherwise cooperate in good faith with the Shareholder and disbursementsits authorized Representatives in order to contest effectively such Shareholder Pre-Closing Tax Claim; and (E) which Landlord Parent or its authorized Representatives shall suffer by reason be entitled, at the expense of Parent, to attend and participate in, but not control, all conferences, meetings, and proceedings relating to such nonShareholder Pre-compliance or contest;Closing Tax Claim.
(iii) Parent shall control the defense or prosecution of any Tax Claim other than a Shareholder Pre-Closing Tax Claim. In the event such nonTax Claim relates to a Pre-compliance Closing Tax Period or contest a Straddle Period and could give rise to an indemnification obligation by the Shareholder Parties pursuant to this Agreement (each, a “Parent Tax Claim”) (A) Parent shall defend or prosecute the Parent Tax Claim diligently and in good faith; (B) Parent shall not, without the prior written consent of the Shareholder, which consent shall not constitute or result in any violation of any superior lease or superior mortgagebe unreasonably withheld, conditioned, or if delayed, enter into any compromise or settlement of such superior lease and/or superior mortgage Parent Tax Claim; (C) Parent shall permit inform the Shareholder of all material developments and events relating to such non-compliance Parent Tax Claim (including providing to the Shareholder copies of relevant portions of all written materials relating to such Parent Tax Claim); (D) the Shareholder shall provide or cause to be provided to Parent any information reasonably requested by Parent relating to such Parent Tax Claim and the Shareholder shall otherwise cooperate in good faith with Parent and its authorized Representatives in order to contest on condition of effectively such Parent Tax Claim; and (E) the taking of action Shareholder or furnishing of security by Landlord, such action its authorized Representatives shall be taken and such security shall be furnished entitled, at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as the Shareholder, to the status of attend and participate in, but not control, all conferences, meetings, and proceedings relating to such proceedingsParent Tax Claim.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Sources: Merger Agreement (Chavant Capital Acquisition Corp.)
Contests. In the case of any notice of Tax deficiency, proposed Tax adjustment, Tax assessment, Tax audit, Tax examination or other administrative or court proceeding, suit, dispute or other claim with respect to Taxes (aa “Tax Claim”) Tenant mayrelating to any Tax period ending on or before the Closing Date that, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, the validity, or applicability if determined adversely to the Premises, of any Requirement with which Tenant is obligated to comply Company would be grounds for a claim for indemnity pursuant to this Section 6.4, Purchaser shall upon receipt of such Tax Claim, promptly, but no later than 15 days, inform the provisions Shareholders of this Leasesuch Tax Claim and the Shareholders (at their sole cost and expense) shall have the right to control the conduct of such Tax Claim and shall have the right to settle such Tax Claim; provided, and Landlord shall cooperate with Tenant in such proceedingshowever, provided that:
(i) Landlord that Purchaser may fully participate in the dispute of such Tax Claim, (ii) the Shareholders shall keep Purchaser timely informed with respect to the commencement, status and nature of any such Tax Claim and (iii) the Shareholders shall not settle, compromise or dispose of any Tax Claim without the consent of Purchaser, which consent shall not be subject unreasonably withheld, conditioned or delayed. In the case of any Tax Claim relating to criminal penalty the Taxes of any Straddle Period, Purchaser and the Shareholders may each participate, at their own expense, in the audit or to prosecution for a crime nor proceeding, and the audit or proceeding shall be controlled by Purchaser or the Premises Shareholders, whichever would bear the burden of the greatest portion of the adjustment; provided, however, that the party controlling the Straddle Period Tax Claim (i) shall not settle such audit or any part thereof proceeding without the consent of the other party, which consent shall not be subject to being condemned unreasonably withheld, conditioned or vacated, by reason of non-compliance or otherwise by reason of such contest;
delayed and (ii) Tenant shall defendkeep the other party timely informed with respect to the commencement, indemnify status and hold harmless Landlord from and against nature of any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursementssuch Tax Claim. The failure by Purchaser to provide the notice contemplated by this Section 6.4(e) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of affect the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsShareholders’ indemnification obligations under Article VII.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validityPurchasers shall promptly notify the Sellers in writing of any written notice of a proposed assessment or claim made by any Tax authority in an audit or administrative or judicial proceeding, or applicability otherwise, which, if successful, would be grounds for indemnification by the Sellers under this Article VII ("Tax Claim"). If notice of a Tax Claim is not given to the PremisesSellers promptly after receipt by the Purchasers, or in reasonable detail to inform the Sellers of any Requirement the nature of the Tax Claim, in each case taking into account the facts and circumstances with which Tenant is obligated respect to comply pursuant to such Tax Claim, the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord Sellers shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as liable to the status Purchasers, to the extent that either Seller's position is actually prejudiced as a result of such proceedingsa failure to so promptly notify or inform.
(b) Without limiting In the application case of subsection a Tax Claim that relates to periods ending on or before the Closing Date, the Sellers shall have the right at their expense to participate in and control the conduct of all proceedings in connection with such Tax Claim (a)(iincluding selection of counsel), provided, however, that the Sellers shall not settle or otherwise compromise such Tax Claim without the Purchasers' consent, which consent shall not be unreasonably withheld. If the Sellers do not elect to contest any such audit or proceeding, the Purchasers may defend the same in such manner as they may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to the Sellers setting forth the terms and conditions of settlement.
(c) above theretoWith respect to issues relating to a potential adjustment for which both a Seller and a Purchaser, Landlord a Company or the Subsidiary could be liable, (i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be deemed subject to prosecution controlled by that party which would bear the burden of the greater portion of the sum of the adjustment, except that neither party shall settle or otherwise compromise such adjustment without the consent of the other party, which consent shall not be unreasonably withheld. The principle set forth in the preceding sentence shall govern also for a crime within purposes of deciding any issue that must be decided jointly (in particular, choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article VII by the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as Purchasers and the case may be) is required to plead or answer theretoSellers.
Appears in 1 contract
Contests. (a) Tenant mayBuyer shall promptly notify the Sellers' Representative in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding involving the Company or any of the Subsidiaries which, at its expense contestif determined adversely to the taxpayer, by appropriate proceedings prosecuted diligently and in good faithcould be grounds for indemnification under Section 8.1.1 above; provided, however, that a failure to give such notice will not -------- ------- affect a Buyer Indemnitee's right to indemnification hereunder, except to the extent, if any, that, but for such failure, Sellers, the validityCompany, the Subsidiaries or applicability the Buyer could have contested in timely fashion the Tax liability in question. In the case of an audit or administrative or judicial proceeding that relates to any Pre-Closing Period, provided that within 30 days after the PremisesSellers' Representative receives the written notice from Buyer required under this Section 8.5 and prior to taking any action with respect to such audit or administrative or judicial proceeding, the Sellers' Representative acknowledges in writing the Sellers' joint and several liability under Section 8.1 above to hold the Buyer Indemnitees harmless against the full amount of any Requirement with adjustment which Tenant is obligated may be made as a result of such audit or proceeding, the Sellers' Representative shall have the right at the Sellers' expense to comply pursuant control the conduct of such audit or proceeding; provided, however, that neither the -------- ------ Sellers nor the Sellers' Representative shall settle or otherwise compromise (or agree to the provisions of this Leasesettle or compromise) any issue or matter without Buyer's prior written consent, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord which consent shall not be subject unreasonably withheld. Buyer also may participate in such audit or proceeding at its own expense. If the Sellers' Representative does not assume the defense of any such audit or proceeding, Buyer may, without any effect to criminal penalty or to prosecution for a crime nor shall the Premises its or any part thereof be subject other Buyer Indemnitee's right to being condemned indemnification under Section 8.1 above, defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or vacatedproceeding. Except as provided otherwise in this Section 8.5, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant Buyer shall defend, indemnify and hold harmless Landlord from and against control at its own expense any and all actionsaudit, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs administrative and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as judicial proceedings related to the status of such proceedingsCompany, the Subsidiaries or their Taxes.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (Azz Inc)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validityPurchaser shall promptly notify the Sellers in writing of any written notice of the commencement of any Action or proposed assessment or Claim made against, or applicability to with respect to, the Premises, Purchaser or any of any Requirement with the Acquired Companies or Subsidiaries which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject relates to criminal penalty a Pre-Closing Period or to prosecution for a crime nor shall the Premises Straddle Period of any Acquired Company or any part thereof be subject to being condemned Subsidiary or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defendif determined adversely to the taxpayer, indemnify and hold harmless Landlord from and against any and could be grounds for indemnification under this Article VII (a “Tax Action”); provided, however, that the failure to give such notice will not affect the Purchaser’s right to indemnification under this Article VII except to the extent, if any, that, but for such failure, the Sellers could have avoided all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition a portion of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsTax liability in question.
(b) Without limiting In the application case of subsection a Tax Action (a)(iother than a Tax Action that relates to a Straddle Period), provided that, and only to the extent that, the Sellers acknowledge in writing their liability under this Agreement to hold the Purchaser, the Acquired Companies and the Subsidiaries harmless against the amount of any adjustment which may be made as a result of such audit or proceeding that relates to Pre-Closing Periods to the extent so provided under Section 7.01, the Sellers shall have the right, at their expense, to control the conduct of the Tax Action, provided that the Sellers shall keep the Purchaser informed as to the progress of the Tax Action in a timely manner. The Purchaser may also, at its expense, participate in, but not control, any such Tax Action to the extent that it is related to a Stand-Alone Return or a Non-Income Tax Return and, if the Sellers do not assume the defense of a Tax Action, the Purchaser may defend the same in such manner as it may deem appropriate. In the case of a Tax Action that relates to a Straddle Period, the Purchaser shall have the right, at its expense, to control the Tax Action; the Sellers may also, at their expense, participate in, but not control, any such Tax Action and, if the Purchaser does not assume the defense of any such Tax Action, the Sellers may defend the same in such manner as they may deem appropriate.
(c) above theretoIn the event that there is a Tax Action that involves (i) the commencement of a tax examination or audit of one or more Pre-Closing Periods and either a Straddle Period and/or one or more Post-Closing Periods and (ii) the same type of Non-Income Tax (or Income Tax, Landlord if no Section 338(h)(10) Election was allowed by the relevant Governmental Authority or a Governmental Authority is challenging a Section 338(h)(10) Election) is at issue with respect to all such periods, then, the Sellers and the Purchaser may participate in the audit or examination and the audit or examination shall be deemed subject jointly controlled by Sellers and Purchaser with respect to prosecution for a crime within the meaning Non-Income Tax (or Income Tax) at issue, provided, however, that at the point that it can be reasonably determined which party would have the burden of said subsection, if Landlord, or any officer, director, partner, member, principal or employee the greater portion of Landlord individually, is charged with a crime the sum of any kind proposed adjustments and any corresponding adjustments for such periods, then that party shall control the audit and examination
(d) Notwithstanding anything to the contrary in this Section 7.04, with respect to any taxable period that begins before the Closing Date, neither the Purchaser nor the Sellers shall enter into any compromise or degree whateveragree to settle any Tax Action which would adversely affect the other party for such taxable period or a subsequent taxable period without the written consent of the other party, whether by service which consent may not be unreasonably withheld, conditioned or delayed. The Purchaser and the Sellers agree to cooperate, and the Purchaser agrees to cause the Acquired Companies and the Subsidiaries to cooperate, in the defense against or compromise of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoany Tax Action.
Appears in 1 contract
Contests. The Parent agrees to give written notice to the Company Managers of the receipt of any written notice by the Parent or any of the Parent’s Affiliates which involves the assertion of any claim, or the commencement of any Action, in respect of which an indemnity may be sought by the Parent pursuant to this Article VII (a “Tax Claim”); provided, that failure to comply with this provision shall not affect the Parent’ right to indemnification hereunder. The Company Managers shall be entitled to control the contest or resolution of any Tax Claim only if (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, the validity, or applicability Company Managers provide the Parent with evidence reasonably acceptable to the PremisesParent that the Company Members will have adequate financial resources to defend against the Tax Claim and fulfill the Company’s indemnification obligations hereunder, (b) the Tax Claim involves only money damages and does not seek an injunction or other equitable relief against the Parent or any of the Parent’s Affiliates, (c) the Parent has not been advised by counsel that an actual or potential conflict exists between the Parent and the Company Members in connection with the defense of the Tax Claim, (d) the Tax Claim does not relate to or otherwise arise in connection with any Requirement with criminal or regulatory enforcement Action or proceeding and (e) the Company Managers conduct the defense of the Tax Claim actively and diligently; provided, however, that the Company Managers shall obtain the prior written consent of the Parent (which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord consent shall not be subject unreasonably withheld or delayed) before entering into any settlement of a claim or ceasing to criminal penalty or defend such claim; and, provided further, that the Parent shall be entitled to prosecution for a crime nor shall participate in the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason defense of such contest;
(ii) Tenant shall defendclaim and to employ counsel of its choice for such purpose, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs the fees and expenses (including court costs and reasonable legal fees and disbursements) of which Landlord separate counsel shall suffer be borne solely by reason the Parent. If the Company Managers are not entitled to control the consent or resolution of a Tax Claim, the Parent shall control the contest or resolution of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsTax Claim.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Green Thumb Industries Inc.)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and Nothing in this Agreement shall be construed to prevent the General Partner from contesting in good faith, as the validitytax matters partner of Parent OP in accordance with the OP Agreement, or applicability to the Premisesany claim that, of any Requirement with which Tenant is obligated to comply if successful, would result in an indemnity payment pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsSection 6.
(b) Without limiting The ▇▇▇▇▇▇▇▇▇▇▇▇ Parties shall provide written notice to Parent OP promptly after learning of any audit or other proceeding involving a ▇▇▇▇▇▇▇▇▇▇▇▇ Party for which Parent OP could have an indemnification obligation under Section 6 (a “Proceeding”). Failure to provide prompt written notice of a Proceeding shall preclude any indemnity hereunder to the application extent Parent OP is materially prejudiced thereby.
(i) Upon receipt of subsection notice of a Proceeding, Parent OP shall either (a)(ii) above theretoassume the conduct and control of the settlement or defense of such Proceeding, Landlord and the ▇▇▇▇▇▇▇▇▇▇▇▇ Parties shall cooperate with Parent OP in connection therewith (including, for example, signing a power of attorney with respect to such Proceeding) or (ii) advise the ▇▇▇▇▇▇▇▇▇▇▇▇ Parties that it does not wish to control such Proceeding, in which case Parent OP shall bear all costs and expenses of a nationally recognized law firm retained to represent the ▇▇▇▇▇▇▇▇▇▇▇▇ Parties in such Proceeding, which counsel shall be deemed reasonably acceptable to Parent OP. In either event, the party not controlling the Proceeding shall be given the right to participate in such Proceeding, at its own expense. So long as Parent OP is reasonably contesting any Proceeding, the ▇▇▇▇▇▇▇▇▇▇▇▇ Parties (or their Indirect Owners) shall not pay or settle any such Proceeding without the consent of Parent OP, which consent may be withheld in Parent OP’s sole discretion. To the maximum extent possible, Parent OP and the ▇▇▇▇▇▇▇▇▇▇▇▇ Parties shall work together to sever the Proceeding from any other tax issues or matters with respect to ▇▇▇▇▇▇▇▇▇▇▇▇ Parties. In no event shall Parent OP be given access to the individual tax records or returns of ▇▇▇▇▇▇▇▇▇▇▇▇.
(ii) Subject to Section 12(b)(iii), (a) a final determination under Section 1313 of the Code of the claim underlying the Proceeding shall be binding on Parent OP and the ▇▇▇▇▇▇▇▇▇▇▇▇ Parties and (b) if the ▇▇▇▇▇▇▇▇▇▇▇▇ Parties are found liable for the Taxes that were the subject of the Proceeding, and it is determined that such Taxes were caused by Parent OP’s breach of this Agreement, Parent OP shall promptly pay the ▇▇▇▇▇▇▇▇▇▇▇▇ Parties the amount payable pursuant to prosecution for a crime within Section 6 of this Agreement.
(iii) Notwithstanding the meaning of said subsectionforegoing, if Landlordeither Parent OP or the ▇▇▇▇▇▇▇▇▇▇▇▇ Parties disputes the finding with respect to causation, Parent OP shall select a nationally recognized accounting firm or law firm experienced in tax protection matters and reasonably acceptable to Representative (the “Dispute Firm”) to review the indemnification claim and the applicable provisions of this Agreement. The Dispute Firm shall have fifteen (15) business days (or such additional time as the Dispute Firm determines is reasonably necessary) to review such materials and deliver to Parent OP and Representative its determination of whether any amount is due under this Agreement. The determination of the Dispute Firm shall be final and binding on the parties to this Agreement, and Parent OP shall promptly pay over to the ▇▇▇▇▇▇▇▇▇▇▇▇ Parties such amounts determined by the Dispute Firm to be due under this Agreement and the ▇▇▇▇▇▇▇▇▇▇▇▇ Parties shall have no further recourse against Parent OP for the indemnification claim with respect to which such amounts have been paid. Parent OP shall bear all costs and expenses of the Dispute Firm; provided, the ▇▇▇▇▇▇▇▇▇▇▇▇ Parties shall bear such costs if Parent OP is found to have no liability pursuant to this Agreement.
(c) Subject to paragraphs (a) and (b) above, the ▇▇▇▇▇▇▇▇▇▇▇▇ Parties shall have the right to participate in any audit, claim for refund, or administrative or judicial proceeding involving any officerasserted Tax liability, directorrefund, partner, member, principal or employee of Landlord individually, is charged with a crime adjustment to the taxable income of any kind or degree whatever, whether by service party hereto that could result in disallowance of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretotax treatment set forth in Section 9 at its own expense.
Appears in 1 contract
Sources: Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Contests. (a) Tenant mayTyler agrees to give written notice to the Shareholders’ Representative of the receipt of any written notice by NWS or the Surviving Company, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, the validityTyler, or applicability to any of Tyler’s Affiliates which involves the Premises, assertion of any Requirement with claim, or the commencement of any Proceeding, in respect of which Tenant is obligated an indemnity may be sought by Tyler pursuant to this ARTICLE VIII (a “Tax Claim”); provided that failure to comply pursuant with this provision shall not affect Tyler’s right to indemnification hereunder. Except as provided below, Tyler shall control the provisions contest or resolution of this Leaseany Tax Claim; provided, and Landlord however, that Tyler shall cooperate with Tenant in such proceedings, provided that:
obtain the prior written consent of the Shareholders’ Representative (i) Landlord which consent shall not be subject unreasonably withheld, conditioned, or delayed) before entering into any settlement of a claim or ceasing to criminal penalty or defend such claim; and, provided further, that the Shareholders’ Representative shall be entitled to prosecution for a crime nor shall participate in the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason defense of such contest;
(ii) Tenant shall defendclaim and to employ counsel of its choice for such purpose, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs the fees and expenses (including court costs of which separate counsel shall be borne solely by the Shareholders’ Representative. The Shareholders’ Representative shall control any Tax Claim with respect to the federal income tax returns of NWS or with respect to any other Tax Return for which the Shareholders could have a liability pursuant to this ARTICLE VIII. Tyler shall be entitled to participate in the defense of any such Tax Claim and reasonable legal to employ counsel of its choice for such purpose, the fees and disbursements) expenses of which Landlord separate counsel shall suffer be borne solely by reason Tyler. The Shareholders’ Representative shall consult with Tyler before entering into any settlement of such non-compliance claim or contest;
(iii) ceasing to defend such non-compliance claim if the settlement or contest shall not constitute or ceasing to defend such claim would result in any violation a material increase in the Taxes of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of Tyler in a Tax period beginning after the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsClosing Date.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Contests. (a) Tenant mayAfter the Closing, at its expense contestPurchaser shall -------- promptly notify Seller in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Purchaser or any Company which, by appropriate proceedings prosecuted diligently and in good faith, the validity, or applicability if determined adversely to the Premisestaxpayer or after the lapse of time, would be grounds for indemnification under Section
7.01. Such notice shall contain factual information (to the extent known) describing the asserted Tax liability in reasonable detail and shall include copies of any Requirement with which Tenant notice or other document received from any Tax authority in respect of any such asserted Tax liability. If Purchaser fails to give Seller prompt notice of an asserted Tax liability as required by this Section 7.03, then (a) if Seller is obligated precluded by the failure to comply pursuant give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Seller shall not have any obligation to the provisions indemnify for any loss arising out of this Leasesuch asserted Tax liability, and Landlord (b) if Seller is not so precluded from contesting but such failure to give prompt notice results in a detriment to Seller, then any amount which Seller is otherwise required to pay Purchaser pursuant to
Section 7.01 with respect to such liability shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall reduced by the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason amount of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsdetriment.
(b) Without limiting Seller may elect to direct, through counsel of its own choosing and at its own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 7.01 (any such audit, claim for refund or proceeding relating to an asserted Tax liability is referred to herein as a "Contest"). If Seller elects to direct a Contest, it shall within 30 days of -------- receipt of the application notice of subsection (a)(i) above theretoasserted Tax liability notify Purchaser of its intent to do so, Landlord and Purchaser shall be deemed subject cooperate and shall cause each Company to prosecution for a crime within cooperate, at the meaning expense of said subsectionSeller, if Landlord, or in each phase of such Contest. Seller shall keep Purchaser informed regarding the progress but not any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime substantive aspect of any kind Contest which Seller has elected to direct. If Seller elects not to direct the Contest, fails to notify Purchaser of its election as herein provided or degree whatevercontests its obligation to indemnify under Section 7.01, whether Purchaser or the relevant Company may pay, compromise or contest, at its own expense, such asserted liability. However, in such case, neither Purchaser nor such Company may settle or compromise any asserted liability over the objection of Seller; provided, however, that consent to settlement or compromise shall not be -------- ------- unreasonably withheld. In any event, Seller may participate, at its own expense, in the Contest. If Seller chooses to direct the Contest, Purchaser shall promptly empower and shall cause the relevant Company promptly to empower (by service power of a summons or otherwise, unless attorney and such charge is withdrawn before Landlord or other documentation as may be appropriate) such officer, director, partner, member, principal or employee (representatives of Seller as it may designate to represent Purchaser and such Company in the Contest insofar as the case may be) is required to plead or answer theretoContest involves an asserted Tax liability for which Seller would be liable under Section 7.01.
Appears in 1 contract
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validityPurchaser shall promptly notify the Sellers in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser or of any of the Partnership and the Subsidiaries which, or applicability if determined adversely to the Premisestaxpayer, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of would be grounds for indemnification under this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty Article VI or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or could otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of Tax cost to any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by LandlordSellers; provided, however, that a failure to give such action shall be taken and such security shall be furnished at notice will not affect the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as Purchaser's right to indemnification under this Article VI except to the status extent such failure on the part of such proceedingsthe Purchaser or any Affiliate of the Purchaser prejudices the Sellers by preventing the avoidance of all or a portion of the Tax liability in question.
(b) Without limiting In the application case of subsection (a)(i) above theretoan audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date, Landlord shall be deemed subject provided that the Sellers acknowledge in writing their indemnification obligation liability under Article VI of this Agreement with respect to prosecution for a crime within the meaning potential liability of said subsectionthe Purchaser, if Landlord, the Partnership or any officerSubsidiary as a result of such audit or administrative or judicial proceeding, directorthe Sellers (or the Parent Entities, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is shall have the right, at their expense, to participate in and control the conduct of such audit or proceeding; the Purchaser may also participate in any such audit or proceeding but only if such audit or proceeding relates to non-income Taxes and, if the Sellers do not assume the defense of any such audit or proceeding, the Purchaser, at its expense, may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to the Sellers setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Sellers have acknowledged their indemnification obligation are required to plead be dealt with in the same proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to control the audit or answer theretoproceeding with respect to the latter issues, provided that the Purchaser provides the Sellers with a written acknowledgement of the Purchaser's liability.
(c) Notwithstanding Section 6.04(b), neither the Purchaser nor the Sellers shall enter into any compromise or agree to settle any claim pursuant to any Tax audit or proceeding, including without limitation a Federal, state or local income Tax audit or 49 44 proceeding to the extent it involves Partnership items, which would adversely affect the other party for such year or any prior or subsequent year without the written consent of the other party which consent may not be unreasonably withheld. If the Purchaser or the Sellers refuse to provide the respective other party with written consent to settle any such claim, then the parties shall submit the matter to an Independent Firm and the Independent Firm shall resolve the issue based on a standard of maximal fairness to both the Purchaser and the Sellers.
(d) The Purchaser and the Sellers (or the Parent Entities, as the case may be) shall cooperate fully, as and to the extent reasonably requested by the other party, in connection with (i) the filing of Returns pursuant to Section 6.03 (including such amended Returns for periods (or portions thereof) ending on or prior to the Closing Date that the Sellers or the Parent Entities may reasonably request the Purchaser to file; provided, however, that if in the Purchaser's reasonable judgment the filing of the amended return would be disadvantageous to the Purchaser, the Purchaser may deny the Sellers' or the Parent Entities' request and the parties shall submit the matter to an Independent Firm and the Independent Firm shall resolve the issue based on a standard of maximal fairness to both the Purchaser and the Sellers or the Parent Entities, as the case may be]) and (ii) any audit, litigation or other proceeding with respect to Taxes.
Appears in 1 contract
Sources: General Partnership Interest Purchase Agreement (Galileo International Inc)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validity, party first receiving notice shall promptly notify the other party in writing of any demand or applicability claim on the first party from any Tax authority or other party with respect to Taxes for which the other party is liable pursuant to Section 8.1. Such notice shall contain factual information (to the Premises, extent known) describing the asserted Tax liability in reasonable detail and shall include copies of any Requirement with which Tenant notice or other document received from any Tax authority in respect of any such asserted Tax liability. If such notifying party fails to give the other party prompt notice of an asserted Tax liability as required by this Section 8.3, then (a) if the other party is obligated precluded by the failure to comply give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then such notifying party shall have sole responsibility for such Tax liability or (b) if the other party is not precluded from contesting but such failure to give prompt notice results in detriment to the other party, then any amount that the other party is otherwise required to pay to such notifying party pursuant to Section 8.1 with respect to such liability shall be reduced by the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason amount of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsdetriment.
(b) Without limiting Parent, at its own expense, shall control the application conduct to a final determination, through counsel of subsection its own choosing at its own expense, of any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought by CS under Section 8.1(a) (a)(i) above theretoany such audit, Landlord claim for refund or proceeding relating to an asserted Tax liability is referred to herein as a "CONTEST"). Parent shall have all rights to settle, compromise and/or concede such asserted liability and CS shall cooperate, and shall cause a Beverage Company or any of its successors to cooperate, in each phase of such Contest PROVIDED, HOWEVER, that Parent shall not settle, compromise or concede any such liability that is reasonably likely to result in a cost to CS or its Affiliates in excess of $100,000.00 without CS's consent, not to be unreasonably withheld. Parent shall inform CS of all material developments and events relating to such Contest (including, without limitation, providing to CS copies of all written materials relating to such Contest reasonably requested by CS), and CS and its authorized representatives shall be deemed subject entitled, at the expense of CS, to prosecution for a crime within the meaning of said subsectionattend, if Landlordbut not participate in or control, or any officerall conferences, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless meetings and proceedings relating to such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoContest.
Appears in 1 contract
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validityPurchaser shall promptly notify the Sellers' Representative in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser or any of the Company and the Subsidiaries which, or applicability if determined adversely to the Premisestaxpayer, of any Requirement with which Tenant is obligated would be grounds for indemnification under this Article VII; provided, however, that the failure to comply pursuant give such notice will not affect the Purchaser's right to indemnification under this Article VII except to the provisions of this Leaseextent, and Landlord shall cooperate with Tenant in if any, that, but for such proceedingsfailure, provided that:
(i) Landlord shall not be subject to criminal penalty the Sellers could have avoided all or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition portion of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsTax liability in question.
(b) Without limiting In the application case of subsection an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date, provided that the Sellers acknowledge in writing their liability under this Agreement to hold the Purchaser and its Affiliates, the Company and the Subsidiaries harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding that relates to periods ending on or before the Closing Date (a)(ior, in the case of any taxable year that includes the Closing Date, against an adjustment allocable under Section 7.01(b) above theretoto the portion of such year ending on or before the Closing Date), Landlord the Sellers' Representative shall have the right at its expense to participate in and control the conduct of such audit or proceeding, but only to the extent that such audit or proceeding relates solely to a potential adjustment for which the Sellers have acknowledged their liability; the Purchaser also may participate in any such audit or proceeding and, if the Sellers' Representative does not assume the defense of any such audit or proceeding, the Purchaser may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after 20 days' prior written notice to the Sellers' Representative setting forth the terms and conditions of settlement. In the event that issues relating to a potential adjustment for which the Sellers have acknowledged their liability are required to be dealt with in the same proceeding as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to control the audit proceeding with respect to the latter issues.
(c) With respect to issues relating to a potential adjustment for which both the Sellers (as evidenced by their acknowledgement under this Section 7.03) and the Purchaser or the Company or any Subsidiary could be liable, (i) both Purchaser and the Sellers' Representative may participate in the audit or proceedings, and (ii) the audit or proceedings shall be deemed subject controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the immediately preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (including, without limitation, choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article VII by the Purchaser and the Sellers Representative.
(d) Neither the Purchaser nor the Sellers shall enter into any compromise or agree to prosecution settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a crime within subsequent year without the meaning written consent of said subsectionthe other party (which consent, if Landlordin the case of the Sellers, shall be given by the Sellers' Representative on behalf of all the Sellers), which consent may not be unreasonably withheld. The Purchaser and the 40 50 Sellers agree to cooperate, and the Purchaser agrees to cause the Company and the Subsidiaries to cooperate, in the defense against or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime compromise of any kind claim in any audit or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoproceeding.
Appears in 1 contract
Contests. (a) Tenant mayAfter the Closing, at its expense contestCovenant shall promptly notify the Stockholders in writing of the proposed assessment or the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Covenant or the Company which, by appropriate proceedings prosecuted diligently and in good faith, the validity, or applicability if determined adversely to the Premisestaxpayer or after the lapse of time, could be grounds for payment of Taxes or indemnification by the Stockholders under this Agreement. Such notice shall contain factual information (to the extent known to Covenant or the Company) describing the asserted Tax liability in reasonable detail and shall include copies of any Requirement with which Tenant is obligated notice or other document received from any taxing authority in respect of any such asserted Tax liability. If Covenant fails to comply pursuant give the Stockholders prompt notice of an asserted Tax liability as required by this section, then the Stockholders shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability under this Agreement; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the provisions extent that the Indemnifying Party shall have been prejudiced as a result of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
failure (i) Landlord except that the Indemnifying Party shall not be subject liable for any expenses incurred during the period in which the Indemnified Person failed to criminal penalty give such notice). In the case of a Tax audit or administrative or judicial proceeding (a "Contest") that relates to prosecution periods ending on or before the Closing Date, the Stockholders shall have the sole right to direct and control the conduct of such Contest. With respect to any Contest for any period beginning before the Closing Date and ending after the Closing Date, the Party which would bear the burden of the greater portion of the sum of the adjustments that may reasonably be anticipated for such period may elect to direct and control, through counsel of its own choosing, such Contest. If the Stockholders elect to direct any Contest or portion of a crime nor Contest, the Stockholders shall promptly notify Covenant of its intent to do so, and Covenant shall cooperate and shall cause the Premises or any part thereof Company to fully cooperate in each phase of such Contest. If the Stockholders elect not to direct the Contest, Covenant shall assume control of such Contest and such Contest shall be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result indemnification in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant accordance with Article V hereof. Covenant shall keep Landlord advised as to the Stockholder Representative reasonably informed of the status of such proceedings.
(b) Without limiting Contest. In any case, neither Covenant and the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within Company on the meaning of said subsection, if Landlordone hand, or the Stockholders, on the other hand, may settle or compromise any officerasserted liability without prior written consent of the other affected party, directorwhich consent may not be unreasonably withheld, partnerconditioned, memberor delayed. In any event, principal or employee of Landlord individuallyany party may participate, is charged with a crime of any kind or degree whateverat their own expense, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as in the case may be) is required to plead or answer theretoContest.
Appears in 1 contract
Contests. (a1) Tenant mayAfter the Closing, the Purchaser shall reasonably promptly after becoming aware notify the Seller in writing of the commencement of any Tax audit or administrative or judicial proceeding and shall also separately notify the Seller in writing of any demand or claim on the Purchaser or the Company which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification by the Seller under this Article VII. Such notice shall contain factual information (to the extent known to the Purchaser or the Company) describing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any taxing authority in respect of any such asserted Tax liability. If the Purchaser fails to give the Seller reasonably prompt notice of an asserted Tax liability as required by this Section 7.04, then (i) if the Seller is precluded by the failure to give reasonably prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then the Seller shall not have any obligation to indemnify for any loss or damage arising out of such asserted Tax liability, and (ii) if the Seller is not so precluded from contesting but such failure to give reasonably prompt notice results in an actual detriment to the Seller, then any amount which the Seller is otherwise required to pay the Purchaser pursuant to this Article VII with respect to such liability shall be reduced by the amount of such detriment.
(2) The Seller, promptly after receiving notice, may elect to direct, through counsel of its own choosing and at its own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought against the Seller under this Article VII (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "Contest"). If ------- the Seller elects to direct the Contest of an asserted Tax liability, the Purchaser shall cooperate in all reasonable respects and shall cause the Company or its successor to cooperate in all reasonable respects, at the Seller's expense, in each phase of such Contest. If the Seller does not either reasonably promptly give notice to direct the Contest or commence the direction of the Contest or if it contests its obligation to indemnify under Section 7.01, the Purchaser or the Company may pay, compromise or contest, at its expense contestown expense, such asserted liability without waiving any of its rights to indemnification hereunder. However, in such case, neither the Purchaser nor the Company may settle or compromise any asserted liability over the objection of the Seller; provided, however, that the Seller's consent to settlement or compromise shall -------- ------- not be unreasonably withheld or delayed. In any event, each of the Purchaser (or the Company) and the Seller may participate, at their own expense, in the Contest. If the Seller chooses to direct the Contest, the Purchaser shall promptly empower and shall cause the Company or its successor promptly to empower (by appropriate proceedings prosecuted diligently power of attorney and such other documentation as may be appropriate) such representatives of the Seller as it may designate to represent the Purchaser or the Company or its successor in the Contest insofar as the Contest involves an asserted Tax liability for which the Seller would be liable under this Article VII, provided that the Seller shall not, without the -------- Purchaser's consent, which shall not be unreasonably withheld or delayed, (x) agree to any settlement with respect to any Tax if such settlement would likely materially adversely affect the future Tax liability of the Purchaser or the Company for any periods ending after the Reference Date other than through the use of losses or credits arising in periods or portions thereof ending on or prior to the Reference Date or (y) agree to any settlement of such claim or cease to defend against such claim if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief would be imposed against the Purchaser or the Company. If, with respect to any proposed settlement referred to in clause (x) of the previous sentence, the Seller proposes in good faithfaith to settle a claim, suit, action or proceeding with respect to any Tax, which settlement offer is accepted by the relevant taxing authority, the validityPurchaser may elect to continue to contest such claim, suit, action or applicability proceeding; provided -------- that notwithstanding how such matter is ultimately settled or decided, the liability of the Seller with respect to such claim, suit, action or proceeding shall be no greater than the amount which would have been payable if the Purchaser had consented to the Premisessettlement proposed by the Seller.
(3) The Purchaser shall have the sole obligation and right to direct, at its own expense, a Contest regarding any Tax Return relating to the Company for any taxable period commencing after the Reference Date (or the Closing Date in the case of a Tax Return which is filed on a combined, consolidated, unitary or similar basis); provided, however, that the Purchaser shall advise and -------- ------- consult with the Seller regarding the status of any Requirement with such Contest that involves the Company and provided further that, without the prior written consent of the Seller (which Tenant is obligated to comply pursuant to the provisions of this Leaseshall not be unreasonably withheld or delayed), and Landlord except as provided in Section 7.04(b), the Purchaser shall cooperate with Tenant in such proceedings, provided that:
not (i) Landlord shall not be subject to criminal penalty make any election, change any annual accounting period or to prosecution for a crime nor shall adopt or change any accounting method if any such election, adoption or change would have the Premises effect of increasing the tax liability of the Seller in any tax period or any part portion thereof be subject to being condemned ending on or vacatedbefore the Reference Date, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defendfile any amended return, indemnify and hold harmless Landlord from and enter into any closing agreement, settle any tax claim or assessment relating to the Company, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any tax claim or assessment relating to the Company or take any action, if any such amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the tax liability of the Seller in any tax period or portion thereof ending on or before the Reference Date (or the Closing Date in the case of a Tax Return which is filed on a combined, consolidated, unitary or similar basis), except to the extent the Seller is to be fully indemnified by the Purchaser against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedings.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons increase under Section 7.05 or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing Date, the validityBuyer shall promptly notify the Sellers in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding involving the Company or any of its Subsidiaries which, or applicability if determined adversely to the PremisesCompany or relevant Subsidiary, of any Requirement with which Tenant is obligated would be grounds for indemnification under this Article 7; provided, -------- however, that a failure to comply pursuant give such notice will not affect a Buyer Indemnified ------- Person's right to indemnification hereunder except to the provisions of this Leaseextent, and Landlord shall cooperate with Tenant if any, that, but for such failure, the Sellers could have avoided the Tax liability in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsquestion.
(b) Without limiting Except as provided in Section 7.3(c) below, in the application case of an audit or administrative or judicial proceeding that relates to any Pre-Closing Period, the Sellers shall have the right at their own expense to control the conduct of such audit or proceeding; provided that within 30 days after the -------- Sellers have received the written notice from the Buyer that is required under Section 7.3(a) above, and prior to taking any action with respect to such audit or administrative or judicial proceeding, the Sellers acknowledge in writing their joint liability under Section 7.3(b)(i) of this Agreement to hold any Buyer Indemnified Person harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding that relates to the Pre-Closing Period (to the extent such amount exceeds the Closing Balance Sheet Tax Reserve after giving effect to all prior and concurrent payments made pursuant to Section 7.3(b)(i) of this Agreement to any Buyer Indemnified Person); provided, further, that the Sellers may not agree to a ----------------- settlement or compromise to any such audit or proceeding that may reasonably be expected to have an adverse effect on the tax liability of the Company for a taxable period after the Closing Date without the prior written consent of the Buyer; provided, further, that if the Buyer does not consent to such settlement ----------------- or compromise, the Sellers' liability to indemnify the Buyer as a result of such audit or proceeding shall be limited to the amount that the Sellers would have paid had the Buyer consented to such settlement or compromise. The Buyer also may participate in any such audit or proceeding at its own expense and, if the Sellers do not assume the defense of any such audit or proceeding, the Buyer may defend the same at its own expense in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding, without any effect to any Buyer Indemnified Person's right to indemnification under this Article 7.
(c) Notwithstanding subsection (a)(ia) above theretoabove, Landlord any contest and/or settlement of any issue raised in an official inquiry, examination or proceeding that relates to the validity or effect of the Election will be conducted by the Buyer and the Company.
(d) In the case of an audit or administrative or judicial proceeding that relates to the Interim Period, the Buyer shall have the right at its own expense to control the conduct of such audit or proceeding; provided that the -------- Buyer may not agree to a settlement or compromise in any such audit or proceeding without the prior written consent of the Seller's Representative (as defined in Section 12.5 below), which consent shall not be deemed subject to prosecution for a crime within the meaning of said subsectionunreasonably withheld. The Sellers also may participate in any such audit or proceeding at their own expense and, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime the Buyer does not assume the defense of any kind such audit or degree whateverproceeding, whether by service of a summons the Sellers may defend the same at its own expense in such manner as it may deem appropriate, including, but not limited to, settling such audit or otherwiseproceeding, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as without any effect to the case may be) is required Sellers' right to plead or answer theretoindemnification under this Article 7.
Appears in 1 contract
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, the validity, or applicability to the Premises, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord Each of Buyer and Seller shall not be subject to criminal penalty notify the other in writing within ten (10) days upon receipt of written notice of any pending or to prosecution for a crime nor shall the Premises threatened audit, notice of deficiency, examination, assessment or any other administrative or judicial proceeding (“Audit”) which may affect any Tax liability for which the other party may be liable pursuant to this Section 5.17; provided that no delay on the part thereof be subject to being condemned or vacated, of the Indemnified Party in giving such notice shall relieve the Indemnifying Party of any indemnification obligation hereunder unless the Indemnifying Party is prejudiced by reason of non-compliance or otherwise by reason of such contest;delay.
(ii) Tenant Seller shall defend, indemnify have the sole and hold harmless Landlord from absolute right to: (i) conduct any Audit or other claim that relates to (A) any Hess Group Tax Return or (B) any other Tax Return or Tax for a taxable period ending before the Closing Date; (ii) employ counsel of its choice in connection therewith; and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) settle any such non-compliance Audit or contest other claim on such terms as it may determine. Seller and Buyer jointly shall not constitute or result control any Audit for Taxes in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition respect of the taking of action Acquired Entities or furnishing of security by Landlordthe Acquired Assets (other than a Hess Group Tax Return) with respect to a Straddle Period, such action including entering into a joint defense agreement with counsel agreeable to both Seller and Buyer. Buyer shall be taken have the sole and such security shall be furnished at the expense of Tenant; and
absolute right to: (ivi) Tenant shall keep Landlord advised as conduct any Audit or other claim that relates to the status of such proceedings.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution any Tax Return or Tax for a crime within taxable period beginning on or after the meaning Closing Date; (ii) employ counsel of said subsection, if Landlord, its choice in connection therewith; and (iii) settle any such Audit or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless other claim on such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (terms as the case it may be) is required to plead or answer theretodetermine.
Appears in 1 contract
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, the validity, or applicability to the Premises, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord The Seller shall not be subject have the right to criminal penalty represent the interests of each member of the Company Group in any Tax audit or administrative or court proceeding (a “Tax Contest”) to prosecution for a crime nor shall the Premises or any part thereof be subject extent relating to Taxes that are described as being condemned or vacated, by reason the responsibility of non-compliance or otherwise by reason of such contest;Seller in Section 9.8(a)(i).
(ii) Tenant The Buyer shall defend, indemnify and hold harmless Landlord from and against have the right to represent the interests of each of the Company Group in any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;Tax Contest not described in Section 9.8(c)(i).
(iii) If either party hereto receives any written communication proposing any Tax adjustment with respect to the assets or activities of any member of the Company Group prior to the Closing Date or which could otherwise give rise to a claim for indemnification hereunder, such non-compliance or contest party shall, within 10 days following such receipt, provide the other party with notice of such proposed Tax adjustment together with copies of any documentation relating thereto; provided that the failure to provide such notice shall not constitute or affect any right to indemnification hereunder except to the extent that such failure results in a failure of actual notice and the party not receiving notice is materially damaged as a result in any violation thereof. If the resolution of any superior lease Tax Contest (or superior mortgage, or if such superior lease and/or superior mortgage shall permit such nonportion thereof) would be grounds for indemnification hereunder by the party (the “Non-compliance or contest on condition Controlling Party”) not in control of the taking conduct of action such Tax Contest (or furnishing portion thereof) or otherwise adversely affect the Tax liability of security by Landlordthe Non-Controlling Party, (A) the party (the “Controlling Party”) in control of such action Tax Contest (or portion thereof) shall keep the Non-Controlling Party fully informed of any proceedings, events and developments relating to or in connection with such Tax Contest (or portion thereof); (B) the Non-Controlling Party shall be taken entitled to receive copies of all correspondence and documents relating to such security Tax Contest (or portion thereof); and (C) at its own cost and expense, the Non-Controlling Party shall be furnished at have the expense of Tenant; and
right to participate in (ivbut not control) Tenant shall keep Landlord advised as to the status conduct of such proceedingsTax Contest (or portion thereof). Notwithstanding any such control (1) the Buyer shall not, and shall not permit any member of the Company Group to, enter into any settlement or admit any fault or liability with respect to any Tax Contest (or portion thereof) that could give rise to a claim for indemnification hereunder without the Seller’s express written prior consent and (2) the Seller shall not enter into any settlement or admit any fault or liability that purports to be binding on any member of the Company Group with respect to any taxable period or portion thereof beginning after the Closing Date without the Buyer’s express written prior consent, which consent (in either case) shall not be unreasonably withheld.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (Bway Corp)
Contests. Buyer agrees to give written notice to Seller of the receipt of any written notice by the Company, Buyer or any of Buyer’s Affiliates which involves the assertion of any claim, or the commencement of any Action, in respect of which an indemnity may be sought by Buyer pursuant to this Article VI (aa “Tax Claim”); provided, that failure to comply with this provision shall not affect Buyer’s right to indemnification hereunder. Seller shall be entitled (at its own expense) Tenant mayto participate and, at its expense contestoption, by appropriate proceedings prosecuted diligently take control of the defense of any pending or threatened Tax Claim, in whole or in part (including any resulting litigation), and to employ counsel of its choice at its expense. If Seller elects to assume the defense of a Tax Claim, Seller shall keep Buyer reasonably informed of all material developments relating to such Tax Claim, and shall allow Buyer sufficient notice and opportunity to participate in good faith, the validity, or applicability Tax Claim to the Premises, extent of any Requirement with claims for Taxes for which Tenant is obligated Buyer (or the Company or any Subsidiary) may be liable. Neither Buyer nor Seller shall settle or compromise (or cause to comply pursuant to be settled or compromised) a matter involving a claim for Taxes for which the provisions other party may be liable under this Agreement without the prior written consent of this Leasesuch other party, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord which consent shall not be subject unreasonably delayed, conditioned or withheld. To the extent Seller elects to criminal penalty or control a Tax Claim pursuant to prosecution for a crime nor this Section 6.05, Seller shall use (and shall cause its Affiliates to use) its commercially reasonable efforts to separate from any such Tax Claim any item in respect of which an indemnity is not sought by Buyer pursuant to this Article VI, and to permit, to the Premises or any part thereof be subject greatest extent possible, Buyer to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or control the contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsitem.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Contests. Buyer agrees to give prompt written notice to Seller of the receipt of any notice by the Company, Buyer or any of Buyer’s Affiliates of any pending or threatened claim, audit, notice of deficiency, examination, assessment, or other proceeding, for which Seller is liable under this ARTICLE VI or which involves the assertion of any claim, or the commencement of any Action against or that could reasonably be expected to give rise to a Tax liability that could be imposed on the Company, Buyer or their Affiliates, in respect of which an indemnity may be sought by Buyer pursuant to this ARTICLE VI (aa “Tax Claim”). Seller shall control the contest or resolution of any Tax Claim related to any Pre-Closing Tax Period (other than a Straddle Period) Tenant mayand, at without limiting the foregoing, may in its expense contestsole discretion, by appropriate proceedings prosecuted diligently pursue or forgo any and all administrative appeals, proceedings, hearing and conferences with any Governmental Authority taken in connection thereof. If such Tax Claim would reasonably be expected to have the effect of increasing the Tax liability or reducing a Tax asset of Buyer, the Company or their Affiliates in respect of any Post-Closing Tax Period or could be imposed on the Company, Buyer or their Affiliates post-Closing, Seller shall keep Buyer timely informed with respect to any impending settlement, compromise and/or concession of any such Tax Claim and Buyer shall have the right, directly or through its designated Representatives, to review in advance and comment upon all material submissions (to the extent such relate to the Company) made in the course of such Tax Claim, which Seller shall consider in good faith, and otherwise reasonably participate in such Tax Claim (at Buyer’s sole cost and expense) and the validitySeller shall not settle or otherwise dispose of any such Tax Claim, or applicability solely to the Premises, of any Requirement with which Tenant is obligated to comply pursuant extent the settlement or disposition relates to the provisions Company and could affect the Company (or Buyer’s or their Affiliates) post-Closing Taxes or could be imposed on the Company, Buyer or their Affiliates post-Closing, without the prior written consent of this Leasethe Buyer, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord which shall not be subject unreasonably withheld, conditioned or delayed. Buyer shall control any other Tax Claim; provided, Buyer shall keep the Seller timely informed with respect to criminal penalty any impending settlement, compromise and/or concession of any such Tax Claim and Seller shall have the right, directly or through its designated Representatives, to prosecution for a crime nor shall review in advance and comment upon all material submissions made in the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason course of such contest;
(ii) Tenant Tax Claim, which Buyer shall defendconsider in good faith. For the avoidance of doubt, indemnify and hold harmless Landlord from and against any and all actionsnot withstanding anything to the contrary in this Agreement, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest Buyer shall not constitute or result have any right to participate in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as Tax Claim related to the status of such proceedingsa Seller Consolidated Return.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validityPurchaser shall reasonably promptly after becoming aware notify the Seller in writing of the commencement of any Tax audit or administrative or judicial proceeding and shall also separately notify the Seller in writing of any demand or claim on the Purchaser or the Company which, or applicability if determined adversely to the Premises, taxpayer or after the lapse of time would be grounds for indemnification by the Seller under this Article VII. Such notice shall contain factual information (to the extent known to the Purchaser or the Company) describing the asserted Tax liability in reasonable detail and shall include copies of any Requirement with which Tenant is obligated notice or other document received from any taxing authority in respect of any such asserted Tax liability. If the Purchaser fails to comply pursuant to give the provisions Seller reasonably prompt notice of an asserted Tax liability as required by this LeaseSection 7.04, and Landlord shall cooperate with Tenant in such proceedings, provided that:
then (i) Landlord if the Seller is precluded by the failure to give reasonably prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then the Seller shall not be subject have any obligation to criminal penalty indemnify for any loss or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason damage arising out of such contest;
asserted Tax liability, and (ii) Tenant if the Seller is not so precluded from contesting but such failure to give reasonably prompt notice results in an actual detriment to the Seller, then any amount which the Seller is otherwise required to pay the Purchaser pursuant to this Article VII with respect to such liability shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer be reduced by reason the amount of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsdetriment.
(b) Without limiting The Seller, promptly after receiving notice, may elect to direct, through counsel of its own choosing and at its own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought against the application Seller under this Article VII (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a "CONTEST"). If the Seller elects to direct the Contest of subsection an asserted Tax liability, the Purchaser shall cooperate in all reasonable respects and shall cause the Company or its successor to cooperate in all reasonable respects, at the Seller's expense, in each phase of such Contest. If the Seller does not either reasonably promptly give notice to direct the Contest or commence the direction of the Contest or if it contests its obligation to indemnify under Section 7.01, the Purchaser or the Company may pay, compromise or contest, at its own expense, such asserted liability without waiving any of its rights to indemnification hereunder. However, in such case, neither the Purchaser nor the Company may settle or compromise any asserted liability over the objection of the Seller; PROVIDED, HOWEVER, that the Seller's consent to settlement or compromise shall not be unreasonably withheld or delayed. In any event, each of the Purchaser (a)(ior the Company) above theretoand the Seller may participate, Landlord at their own expense, in the Contest. If the Seller chooses to direct the Contest, the Purchaser shall promptly empower and shall cause the Company or its successor promptly to empower (by power of attorney and such other documentation as may be appropriate) such representatives of the Seller as it may designate to represent the Purchaser or the Company or its successor in the Contest insofar as the Contest involves an asserted Tax liability for which the Seller would be liable under this Article VII, PROVIDED that the Seller shall not, without the Purchaser's consent, which shall not be unreasonably withheld or delayed, (x) agree to any settlement with respect to any Tax if such settlement would likely materially adversely affect the future Tax liability of the Purchaser or the Company for any periods ending after the Reference Date other than through the use of losses or credits arising in periods or portions thereof ending on or prior to the Reference Date or (y) agree to any settlement of such claim or cease to defend against such claim if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief would be imposed against the Purchaser or the Company. If, with respect to any proposed settlement referred to in clause (x) of the previous sentence, the Seller proposes in good faith to settle a claim, suit, action or proceeding with respect to any Tax, which settlement offer is accepted by the relevant taxing authority, the Purchaser may elect to continue to contest such claim, suit, action or proceeding; PROVIDED that notwithstanding how such matter is ultimately settled or decided, the liability of the Seller with respect to such claim, suit, action or proceeding shall be deemed subject no greater than the amount which would have been payable if the Purchaser had consented to prosecution the settlement proposed by the Seller.
(c) The Purchaser shall have the sole obligation and right to direct, at its own expense, a Contest regarding any Tax Return relating to the Company for any taxable period commencing after the Reference Date (or the Closing Date in the case of a crime within Tax Return which is filed on a combined, consolidated, unitary or similar basis); PROVIDED, HOWEVER, that the meaning Purchaser shall advise and consult with the Seller regarding the status of said subsectionany such Contest that involves the Company and provided further that, without the prior written consent of the Seller (which shall not be unreasonably withheld or delayed), and except as provided in Section 7.04(b), the Purchaser shall not (i) make any election, change any annual accounting period or adopt or change any accounting method if any such election, adoption or change would have the effect of increasing the tax liability of the Seller in any tax period or portion thereof ending on or before the Reference Date, or (ii) file any amended return, enter into any closing agreement, settle any tax claim or assessment relating to the Company, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any tax claim or assessment relating to the Company or take any action, if Landlordany such amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the tax liability of the Seller in any officer, director, partner, member, principal tax period or employee of Landlord individually, is charged with a crime of any kind portion thereof ending on or degree whatever, whether by service before the Reference Date (or the Closing Date in the case of a summons Tax Return which is filed on a combined, consolidated, unitary or similar basis), except to the extent the Seller is to be fully indemnified by the Purchaser against any such increase under Section 7.05 or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (White Mountains Insurance Group Inc)
Contests. (a) Tenant mayIf any Tax Authority asserts a Tax Claim with respect to Wind River or any of its Subsidiaries, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, then the validity, or applicability party first receiving notice of such Tax Claim promptly shall provide written notice thereof to the Premisesother party or parties; provided, however, that the failure of such party to give such prompt notice shall not relieve the other party of any Requirement with which Tenant is obligated to comply pursuant of its obligations under this Article 9, except to the provisions extent that the other party is actually prejudiced thereby. Such notice shall specify in reasonable detail the basis for such Tax Claim and shall include a copy of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation relevant portion of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of correspondence received from the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsTax Authority.
(b) Without limiting The Trusts shall have the application right to control, at their own expense, any audit, examination, contest, litigation or other proceeding with respect to Taxes by or against any Tax Authority (a "Tax Proceeding") in respect of subsection Wind River or any of its Subsidiaries for any taxable period that ends on or before the Closing Date but only to the extent that such Tax Proceeding relates to a potential adjustment for which the Trusts have acknowledged in writing their liability under this Agreement to hold Cayman Purchaser, Wind River and its Subsidiaries harmless against the full amount of any adjustment that may be made as a result of such Tax Proceeding (a)(i) above theretoor in the case of any taxable year that includes the Closing Date, Landlord against that portion of any adjustment allocable to the Pre-Closing Tax Period under Section 9.01(a)). If the Trusts do not expressly assume the defense of any such Tax Proceeding by providing Cayman Purchaser with written notice of the Trusts' intent to control such Tax Proceeding within 45 days after first receiving notice of such Tax Proceeding, Cayman Purchaser may defend the same in such manner as it may deem appropriate; provided, that such 45-day period shall be deemed subject extended for such additional period as may be reasonably necessary (but not to prosecution exceed an additional 45 days) in order to allow the Trusts to determine whether they should acknowledge liability as provided in this Section 9.05(b); and provided further, that the Trusts shall reimburse Cayman Purchaser for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless its reasonable fees for attorneys and other outside consultants incurred during such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.additional
Appears in 1 contract
Contests. (a) 23.1 After written notice to Landlord, Tenant may, may at its expense contest, by appropriate proceedings prosecuted diligently conducted in good faith and with due diligence (all such proceedings together with appeals therefrom being hereinafter referred to as "Contests") the amount, validity or application, in whole or in part, of any Tax, mechanics' lien, encumbrance, charge or any other adverse claim for which Tenant is responsible under this Lease (hereinafter collectively "claims") provided that:
23.1.1 In the case of an unpaid claim, such Contest shall operate to suspend the collection of the same from Landlord and Tenant therein;
23.1.2 Such Contest shall not result in a default under, and shall be permitted by and conducted in accordance with all applicable provisions of, the First Mortgage;
23.1.3 Tenant shall have furnished such security, if any, as may be required in the proceedings or requested by the First Mortgagee; and
23.1.4 Neither the Property nor any part thereof nor any interest therein shall be, in the reasonable opinion of Landlord, in imminent danger of being forfeited or lost.
23.2 During the period Tenant carries forward any such Contest in good faith, Tenant shall be relieved from its obligations herein contained to pay the validityclaims, or applicability to clear the liens with respect to which such contest is conducted. If and to the Premisesextent Tenant shall not prevail in any such Contest, Tenant shall immediately pay and discharge the claim in question to such extent.
23.3 All such Contests may be brought by Tenant in the name of any Requirement Tenant or, if reasonably necessary, in the name of Landlord or Tenant and Landlord, as may be appropriate. Each party agrees to cooperate with which Tenant is obligated the other in such Contests, short of the payment of money with respect thereto, except where this Lease otherwise requires payment. Each party will endorse such pleadings, checks and other documents as will be appropriate to comply pursuant to carry out the provisions purposes of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsSection 23.3.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validityPurchaser shall promptly notify the Seller in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Company, or applicability which, if determined adversely to the Premisestaxpayer, of any Requirement with which Tenant is obligated would be grounds for indemnification under Section 6.03; provided, however, that the failure to comply pursuant give such notice will not affect the Purchaser’s right to indemnification under this Agreement except to the provisions of this Leaseextent, and Landlord shall cooperate with Tenant if any, that, but for such failure, the Seller would have avoided the Tax Liability in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsquestion.
(b) Without limiting In the application case of subsection an audit or administrative or judicial proceeding (a)(ia “Contest”) above theretothat relates to a Pre-Closing Period, Landlord the Seller shall have the right, at its expense, to participate in and control the conduct of such Contest, but only to the extent that such Contest relates solely to a potential adjustment for which the Seller has acknowledged, in writing, its liability under this Agreement to hold the Purchaser and the Company harmless against the full amount of any adjustment which may be made as a result of such Contest. The Purchaser also may participate in any such Contest, and, if the Seller does not assume the defense of any such Contest, the Purchaser may defend the same in such manner as it may deem appropriate, including settling such Contest after five days’ prior written notice to the Seller setting forth the terms and conditions of settlement. Notwithstanding anything to the contrary contained in this Agreement, in the event that issues relating to a potential adjustment for which the Seller has acknowledged its liability in writing are required to be contested in the same Contest as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to control the Contest with respect to the latter issues.
(c) In the case of a Contest that relates to a Straddle Period, or otherwise with respect to issues relating to a potential adjustment for which the Seller (as evidenced by its written acknowledgement of liability under this Section 6.04), on the one hand, and the Purchaser, on the other hand, could be liable, (i) each of the Seller and the Purchaser may participate in the Contest, and (ii) such Contest shall be deemed subject controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future taxable periods. The principle set forth in this Section 6.04(c) also shall govern for purposes of deciding any issue that must be decided jointly (including choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article VI by the Purchaser and the Seller.
(d) Notwithstanding anything to prosecution for the contrary herein, the Seller shall not enter into any compromise or agree to settle any claim pursuant to a crime within Contest, which would adversely affect the meaning Purchaser or the Company in a taxable period ending after the Closing Date without the prior written consent of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoPurchaser.
Appears in 1 contract
Sources: Stock Purchase Agreement (Macquarie Infrastructure CO Trust)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing Date, the validityCompany shall, or applicability and prior to the PremisesClosing Date, BAT shall, promptly notify the other Party in writing of any Requirement with which Tenant is obligated to comply pursuant written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding involving the other Party which, if determined adversely to the provisions of taxpayer, would be grounds for indemnification under this LeaseSection 7; provided, and Landlord shall cooperate with Tenant in however, that a failure to give such proceedingsnotice will not affect the Shareholders’ or the Company’s right, provided that:
(i) Landlord shall not be subject as the case may be, to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacatedindemnification hereunder, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as except to the status of extent, if any, that, but for such proceedingsfailure, the other Party could have avoided or contested the Tax liability in question.
(b) Without limiting In the application case of subsection an audit or administrative or judicial proceeding that relates to any period ended on or before the Closing Date, provided that within 30 days after the Shareholders receive the written notice from Company, and prior to taking any action with respect to such audit or administrative or judicial proceeding, the Shareholders acknowledges in writing the Shareholders’ liability under Section7.3(a) of this Agreement to hold the Company harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding that relates to such period, except to the extent provided otherwise in Section 7.5(c) below, The Shareholders shall have the right at the Shareholders’ own expense to control the conduct of such audit or proceeding. The Company also may participate in any such audit or proceeding at the Company’s expense and, if the Shareholders do not assume the defense of any such audit or proceeding, the Company may, without any effect to the Company’s right to indemnification under this Section 7, defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days’ prior written notice to the Shareholders setting forth the terms and conditions of such settlement.
(a)(ic) above theretoWith respect to a proposed adjustment for which both the Shareholders (as evidenced by the Shareholders’ acknowledgment under this Section 7.5) and the Company could be liable, Landlord or which involves an adjustment to a period ended on or before the Closing Date or a change of accounting method or other issue that recurs for any post Closing period (whether or not the subject of an audit or proceeding at such time), (i) each Party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be deemed subject to prosecution controlled by that Party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for a crime within future Tax periods. The principle set forth in the meaning preceding sentence shall govern also for purposes of said subsectiondeciding any issue that must be decided jointly (in particular, if Landlord, or any officer, director, partner, member, principal or employee choice of Landlord individually, is charged with a crime of any kind or degree whatever, whether judicial forum) in situations in which separate issues are otherwise controlled hereunder by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoCompany and the Shareholders.
Appears in 1 contract
Sources: Stock Exchange Agreement (Tree Top Industries, Inc.)
Contests. (a) Tenant may, at its expense contest, shall have the right to contest by appropriate legal proceedings prosecuted diligently and conducted in good faith, in the validityname of Tenant, without cost or applicability expense to Landlord, the validity or application of any Legal Requirement, subject to Tenant providing Landlord with written notice thereof on or before the date of contesting same, and further subject to the Premises, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided thatfollowing:
(ia) Landlord shall not If, by the terms of any such Legal Requirement, compliance therewith pending the prosecution of any such proceeding may legally be subject to criminal penalty delayed without the incurrence of any lien, charge or to prosecution for a crime nor shall liability of any kind against the Premises or any part thereof and without subjecting Tenant or Landlord to any liability, civil or criminal, for failure so to comply therewith, Tenant may delay compliance therewith until the final determination of such proceeding; and
(b) If any lien, charge or civil liability would be subject to being condemned or vacated, incurred by reason of non-compliance any such delay, Tenant nevertheless may contest as aforesaid and delay as aforesaid, provided that such delay would not subject Landlord to criminal liability or otherwise fine, and provided that Tenant (i) bonds over such lien or furnishes to Landlord security, reasonably satisfactory to Landlord, against any loss or injury by reason of such contest;
contest or delay, and (ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or prosecutes the contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenantwith due diligence; and
(ivc) Tenant shall keep Landlord advised as to the status of such proceedings.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall not be deemed subject required to prosecution for join in or become a crime within the meaning of said subsectionparty, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons nominal or otherwise, unless to any proceeding in which it will oppose the Town of Amherst or any agency, authority, branch, division, office or subdivision thereof, nor shall Landlord be required in connection with any such charge is withdrawn before proceeding or otherwise to oppose in any way any policy previously established by Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required nor to plead or answer theretotake a position inconsistent with a position previously taken and made public by Landlord.
Appears in 1 contract
Sources: Ground Lease
Contests. (a) Tenant may, at its expense contest, If notice of any Legal Action with respect to Taxes (“Tax Proceeding”) relating to the Seller shall be received by appropriate proceedings prosecuted diligently and in good faitheither party for which the other party may reasonably be expected to be liable pursuant to Section 8.05 (a “Tax Claim”), the validitynotified party shall promptly inform the other party in writing of such Tax Claim, or applicability provided that the failure of the notified party to give the other party such notice shall not relieve the failing party of its obligations under Section 8.05 except to the Premises, of any Requirement with which Tenant extent that the other party is obligated to comply pursuant to the provisions of this Lease, actually and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsmaterially prejudiced thereby.
(b) Without limiting Company shall have the application right at its expense to represent the interests of subsection Company or the Seller in any Tax Claim relating exclusively to taxable periods ending on or before the Closing Date, provided that: (a)(ii) above theretoCompany shall allow Buyer and its counsel to participate in the defense of any such Tax Proceeding at Buyer’s sole expense; (ii) Company shall keep Buyer informed with respect to the status of any such Tax Proceeding; (iii) if any such Tax Proceeding involves an issue that recurs in taxable periods ending after the Closing Date or otherwise could adversely affect Buyer or the Seller for any taxable period ending after the Closing Date, Landlord then Company and Buyer shall jointly control the defense of any such Tax Proceeding, each party shall cooperate with the other party, and there shall be deemed no settlement or closing or other agreement with respect to such Tax Proceeding without the consent of the other party, which consent shall not be unreasonably withheld; and (iv) if Company does not elect to represent the interests of Company or the Seller in any such Tax Proceeding, then Buyer or the Seller may contest such Tax Proceeding and may pay or compromise such Tax Claim with Company’s written consent, which consent shall not be unreasonably withheld.
(c) Buyer shall represent at its expense the interests of the Seller in any Tax Claim relating to a Straddle Period, provided that: (i) Buyer shall allow Company and its counsel to participate in the defense of any such Tax Proceeding at Company’s sole expense; (ii) Buyer shall keep Company informed with respect to the status of any such Tax Proceeding; and (iii) if any such Tax Proceeding involves an issue which is the subject of indemnification by Company pursuant to prosecution for Section 8.05, then Buyer and Company shall jointly control the defense of any such Tax Proceeding, each party shall cooperate with the other party, and there shall be no settlement or closing or other agreement with respect to such Tax Proceeding without the consent of the other party, which consent shall not be unreasonably withheld.
(d) Notwithstanding anything in the Agreement to the contrary, Company shall be entitled to control in all respects, and neither Buyer nor any of their Affiliates shall be entitled to participate in, any Tax Proceeding with respect to: (i) any Tax Return of Company; or (ii) any Tax Return of a crime within the meaning of said subsectionconsolidated, if Landlordcombined, affiliated, or unitary group that includes Company or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee its Affiliates (as including the case may be) is required to plead or answer theretoSeller).
Appears in 1 contract
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validityPurchaser shall promptly notify Covance in writing of any written notice or any communication from the IRS or other Tax authority, in the context of an audit, examination, request for information or applicability to the Premisesotherwise, of any Requirement with which Tenant is obligated matter that could give rise to comply pursuant to a right of indemnification under Article VIII (a "Tax Claim"). Such notice of a Tax Claim shall state the provisions nature of this Leasethe claim, amount indemnified against, if known, and Landlord shall cooperate the method of computing such amount. If notice of a Tax Claim is not given promptly after receipt of such communication by the Purchaser, or in reasonable detail to inform Covance of the nature of the Tax Claim, in each case taking into account the facts and circumstances with Tenant in respect to such proceedingsTax Claim, provided that:
(i) Landlord Covance shall not be subject liable to criminal penalty or the Purchaser, but only to prosecution for the extent that Covance's position is actually prejudiced as a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason result of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance failure to so promptly notify or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsinform.
(b) Without In the case of a Tax Claim that relates to one or more Pre-Closing Tax Periods, Covance shall have the right, at its own expense, to participate in and control the conduct of all proceedings in connection with such Tax Claim (including selection of counsel). Covance shall not admit any liability with respect to, or settle, compromise or discharge, such Tax Claim without Purchaser's prior written consent, which consent shall not be unreasonably withheld. If Covance does not elect to contest any such audit or proceeding, the Purchaser may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days' prior written notice to Covance setting forth the terms and conditions of settlement, and, if Covance does not so elect, Covance shall reimburse the Purchaser for all reasonable out-of-pocket expenses (including reasonable attorney and accountant fees) in connection with contesting any proposed disallowance of the Company NOL to the extent such proposed disallowance would cause the Company NOL to be less than $49.5 million.
(c) With respect to issues included in a Tax Claim relating to a potential adjustment for which both Covance and the Purchaser could be liable, (i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be controlled by that party which would bear the burden of the greater portion of the sum of the adjustment. The principle set forth in the preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (in particular, choice of judicial forum) in situations in which separate issues are otherwise jointly controlled under this Article VIII by the Purchaser and Covance. Neither party shall admit any liability with respect to, or settle, compromise or discharge, such Tax issues or claim without the other party's prior written consent, which consent shall not be unreasonably withheld.
(d) Notwithstanding Section 8.06(c) hereof, with respect to any proposed disallowance of the Company NOL for any Post-Closing Tax Period indemnified against by Covance under Section 8.01(b)(ii) (an "NOL Tax Claim"), the Purchaser will contest such NOL Tax Claim in good faith, and will not take any action with respect to such contest and NOL Tax Claim without the consent of Covance (which shall not be unreasonably withheld) for a 30-day period after delivery of notice of such NOL Tax Claim to Covance; provided, however, that (i) within 25 days after Covance has been notified in writing by the Purchaser of the NOL Tax Claim, Covance shall request in writing that such NOL Tax Claim be contested; and (ii) the conduct of such contest shall remain within the control of the Purchaser and its counsel (who shall be independent tax counsel of national reputation, selected by the Purchaser and reasonably satisfactory to Covance); provided further that, without limiting the application right of subsection the Purchaser to control any NOL Tax Claim contest, the Purchaser shall consult in good faith with Covance with respect to any Tax Proceeding related to such NOL Tax Claim, including, without limitation, keeping Covance informed of material developments with respect to such Tax Proceeding on a timely basis, providing Covance with the Purchaser's material written submissions or replies with respect to such Tax Proceeding prior to filing thereof with such authority or with the relevant court, and copies of documents actually filed in such Tax Proceeding, and considering in good faith the comments and views of Covance with respect to the conduct of such Tax Proceeding.
(a)(ie) above thereto, Landlord Covance shall be deemed subject reimburse Purchaser for all reasonable out-of-pocket expenses (including attorney and accountant fees) of contesting an NOL Tax Claim as such expenses are incurred and the Purchaser delivers materials to prosecution for a crime within the meaning of said subsection, if LandlordCovance evidencing such expenses. The Purchaser shall not admit any liability with respect to, or settle, compromise or discharge, any officerNOL Tax Claim without Covance's prior written consent, directorwhich consent shall not be unreasonably withheld. Covance shall advance to Purchaser sufficient funds for Purchaser to pay any Tax contested in any Tax Proceeding pertaining to any portion of the Company NOL in which the Tax contested must be paid prior to, partneror upon commencement of such Tax Proceeding. Following a Final Determination of an NOL Tax Claim, member, principal or employee the Purchaser shall refund to Covance any amounts advanced for this purpose (together with any related amounts of Landlord individually, is charged with a crime interest received) that are in excess of any kind or degree whatever, whether amounts finally determined to be due by service Covance in respect of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoNOL Tax Claim under this Agreement.
Appears in 1 contract
Contests. (a) Tenant mayIn respect of the indemnification provided under Section 7.1(a), promptly after receipt by an Indemnitee of notice of any pending or threatened Claim, such Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Lessee, give notice thereof to the Lessee. So long as no Event of Default is continuing, the Lessee, at its expense contestown expense, by appropriate proceedings prosecuted diligently and in good faith, may elect to assume the validity, or applicability to the Premises, defense of any Requirement with such Claim through its own counsel, which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty the reasonable approval of the Indemnitee, on behalf of the Indemnitee (with full right of subrogation to the Indemnitee’s rights and defenses). Lessee must indicate its election to assume such defense by written notice to the Indemnitee within thirty (30) days following receipt of Indemnitee’s notice of the Claim, or in the case of a third- party claim which requires a shorter time for response then within such shorter period as specified in the Indemnitee’s notice of Claim; provided that such Indemnitee has given the Lessee notice thereof. If the Lessee denies liability or fails to prosecution for a crime nor respond to the notice within the time period set forth above, the Indemnitee may defend or compromise the Claim as it deems appropriate without prejudice to any of Indemnitee’s rights hereunder. If the Lessee shall have elected to assume the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation defense of any superior lease or superior mortgagesuch Claim, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition then upon the request of the taking Lessee, the Indemnitee requesting payment of action indemnity under Section 7.1(a) shall promptly furnish the Lessee with copies of any records or furnishing documents pertaining to the matter to be indemnified and, to the extent known by such Indemnitee, a reasonably detailed explanation of security by Landlordthe circumstances giving rise to the claim of indemnification and the determination of the amount of the requested indemnity payment. Upon payment in full to Indemnitee of any indemnity pursuant to Section 7.1(a), such action the Lessee shall be taken subrogated to any right of Indemnitee in respect of the matter against which such indemnity has been paid. If the Lessee shall have elected to assume the defense of any such Claim, upon the written request at any time and such security shall be furnished from time to time of the Lessee, Indemnitee shall, at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised the Lessee, take such reasonable actions and execute such documents as are necessary or reasonably appropriate to assist the status Lessee in the preservation and enforcement against third parties of the Lessee’s right of subrogation hereunder. The Indemnitee may employ separate counsel in any such Claim and participate in the defense thereof, but the fees and expenses of such proceedings.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord counsel shall be deemed at the expense of the Indemnitee unless the Indemnitee and the Lessee shall have been advised by counsel that there exists an irresolvable conflict of interest in such counsel’s representation of the Indemnitee and the Lessee in which case the fees and expenses of such separate counsel shall be for the account of the Lessee. All reasonable out-of-pocket fees and expenses shall be paid periodically as incurred. So long as no Construction Event of Default or Event of Default shall have occurred and be continuing, the Lessee shall not be liable for any settlement of any such Claim effected without its consent unless the Lessee shall fail to, or elect in writing not to, assume the defense thereof in which case the Indemnitee, without waiving any rights to indemnification hereunder, may defend such Claim and enter into any good faith settlement thereof without the prior written consent of the Lessee. Lessee shall not, without the prior written consent (not to be unreasonably withheld) of the Indemnitee, effect any settlement of any such Claim unless such settlement includes an unconditional release of the Indemnitee from all liabilities that are the subject of such Claim. The parties agree to cooperate in any defense or settlement of any such Claim and to give each other reasonable access to all information relevant thereto subject to appropriate confidentiality agreements. The parties will similarly cooperate in the prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind claim or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretolawsuit against any third party.
Appears in 1 contract
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validity, Purchaser shall promptly notify the Seller in writing of any demand or applicability claim received by the Purchaser or the Company from any Tax authority or other party with respect to Taxes for which the Seller is liable pursuant to Section 7.1(a). Such notice shall contain factual information (to the Premises, extent known) describing the asserted Tax liability in reasonable detail and shall include copies of any Requirement with which Tenant is obligated notice or other document received from any Tax authority in respect of any such asserted Tax liability. If the Purchaser fails to comply pursuant to give the provisions Seller prompt notice of an asserted Tax liability as required by this LeaseSection 7.3, and Landlord shall cooperate with Tenant in such proceedings, provided that:
then (i) Landlord if the Seller (or its designee) is precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, and the Seller is materially prejudiced as a result, then the Purchaser shall not be subject to criminal penalty have sole responsibility for such Tax liability or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant if the Seller (or its designee) is not precluded from contesting but such failure to give prompt notice results in a detriment to the Seller (or its designee), then any amount that the Seller is otherwise required to pay to the Purchaser pursuant to Section 7.1 with respect to such liability shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer be reduced by reason the amount of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsdetriment.
(b) Without limiting The Seller (or its designee) may elect to control the application conduct, through counsel of subsection its own choosing and at its own expense, of any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 7.1(a) (a)(iany such audit, claim for refund or proceeding relating to an asserted Tax liability is referred to herein as a "Contest"). If the Seller (or its designee) above theretoelects to control a Contest, Landlord it shall be deemed subject within 30 calendar days of receipt of the notice of asserted Tax liability notify the Purchaser of its intent to prosecution for a crime within do so, the meaning of said subsectionSeller (or its designee) shall have all rights to settle, if Landlord, compromise and/or concede such asserted liability and the Purchaser shall cooperate and shall cause the Company or any officerof its successors to cooperate, directorat the reasonable expense of the Seller, partnerin each phase of such Contest; provided, memberhowever, principal that the Seller shall not, other than in good faith based on the merits, enter into any compromise or employee settlement of Landlord individuallysuch Contest that would result in any Tax detriment to the Purchaser or the Company. If the Seller elects not to control the Contest, is charged with a crime fails to notify the Purchaser of its election as herein provided or contests its obligation to indemnify under Section 7.1(a), the Purchaser or the Company may pay, compromise or contest, at its own expense (to be reimbursed by the Seller to the extent of reasonable third-party expenses), such asserted liability. However, in such case, neither the Purchaser nor the Company may settle or compromise any kind asserted liability over the objection of the Seller; provided, however, that consent to settlement or degree whatevercompromise shall not be unreasonably withheld. In any event, whether the Seller (or its designee) may participate, at its own expense, in the Contest. If the Seller (or its designee) chooses to control the Contest, the Purchaser shall promptly empower and shall cause the Company or any of its successors promptly to empower (by service power of a summons attorney and such other documentation as may be appropriate) such representatives of the Seller (or otherwiseits designee) as it may designate to represent the Purchaser, unless such charge is withdrawn before Landlord the Company or such officer, director, partner, member, principal or employee (any of their successors in the Contest insofar as the case may be) is required to plead or answer theretoContest involves an asserted Tax liability for which the Seller would be liable under Section 7.1(a).
Appears in 1 contract
Sources: Stock Purchase Agreement (Information Holdings Inc)
Contests. (a) Tenant mayIf any Taxing Authority asserts a Tax Claim in respect of any of the Companies or their Subsidiaries, then the party hereto first receiving notice of such Tax Claim promptly shall provide written notice thereof to the other party or parties hereto; provided, however, that the failure of such party to give such prompt notice shall not relieve the other party of any of its obligations under this Article VII, except to the extent that the other party is actually prejudiced thereby. Such notice shall specify in reasonable detail the basis for such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the Taxing Authority.
(b) Seller shall have the exclusive right to control, at its expense own expense, any audit, examination, contest, litigation or other proceeding by appropriate proceedings prosecuted or against any Taxing Authority (a “Tax Proceeding”) in respect of any of the Companies or their Subsidiaries for any taxable period that ends on or before the Closing Date (other than those Tax Proceedings described in Section 7.5(c) or Section 7.5(e)); provided, however, that with respect to any such Tax Proceeding that would reasonably be expected to have an adverse effect on Buyer and its Affiliates (including the Companies and their Subsidiaries for Post-Closing Periods) that is material, Seller shall (i) consult with Buyer before taking any significant action in connection with such Tax Proceeding, (ii) defend such Tax Proceeding diligently and in good faith, and (iii) shall not settle, compromise or abandon any such Tax Proceeding without obtaining the validityprior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed.
(c) Buyer shall control, at its own expense, any Tax Proceeding of the Companies or any of their Subsidiaries relating to a Straddle Period (other than those Tax Proceedings described in Section 7.5(e)); provided, however, that (i) Buyer shall defend such Tax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Tax Proceeding, and (ii) to the extent such Tax Proceeding relates to a Straddle Period or could otherwise result in a Tax that is the responsibility of Seller under this Agreement (A) Buyer shall provide Seller with a timely and reasonably detailed account of each phase of such Tax Proceeding, (B) Buyer shall consult with Seller before taking any significant action in connection with such Tax Proceeding, (C) Buyer shall consult with Seller and offer Seller a reasonable opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, (D) Seller shall be entitled to participate in such Tax Proceeding, at its own expense, and (E) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed if such settlement, compromise, or applicability to abandonment could result in the Premises, of any Requirement with which Tenant Companies or their Subsidiaries incurring a Tax that Seller is obligated to comply pay pursuant to Section 7.1.
(d) Buyer shall have the provisions exclusive right to control, at its own expense, any Tax Proceeding in respect of this Leaseany of the Companies or their Subsidiaries for any taxable period that begins after the Closing Date (other than those Tax Proceedings described in Section 7.5(c) or described in Section 7.5(e)); provided, however, that with respect to any such Tax Proceeding that would reasonably be expected to have an adverse effect on Seller and Landlord its Affiliates (including the Company and its Subsidiaries for Pre-Closing Periods) that is material, Buyer shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord consult with Seller before taking any significant action in connection with such Tax Proceeding, (ii) defend such Tax Proceeding diligently and in good faith, and (iii) not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of Seller, which consent shall not be subject unreasonably withheld, conditioned or delayed.
(e) Notwithstanding the foregoing, (i) Seller shall exclusively control, at its own expense, any Tax Proceeding relating to criminal penalty any combined, consolidated or unitary Tax Return that includes Seller or its Affiliates and Buyer shall have no right to prosecution participate in such Tax Proceeding (even to the extent it could result in a Tax that the Buyer is responsible for under this Agreement), provided that Seller shall keep Buyer reasonably informed regarding any proposed adjustments made during such Tax Proceedings that could result in the Companies or their Subsidiaries having to pay additional Taxes for a crime nor shall the Premises Post-Closing Tax Period or requiring any Company or any part thereof be subject of their Subsidiaries to being condemned or vacatedpay additional Taxes with respect to a separately filed Tax Return, by reason of non-compliance or otherwise by reason of such contest;
and (ii) Tenant the Buyer shall defendexclusively control, indemnify at its own expense, any Tax Proceeding relating to any combined, consolidated or unitary Tax Return that includes the Buyer or its Affiliates and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses Seller shall have no right to participate in such Tax Proceeding (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or even to the extent it could result in a Tax that Seller is responsible for under this Agreement), provided that Buyer shall keep Seller reasonably informed regarding any violation of proposed adjustments made during such Tax Proceeding that could result in Seller or its Affiliates paying any superior lease additional Tax for a Pre-Closing Period or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition could result in a Tax of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedings.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, Company or any officer, director, partner, member, principal or employee of Landlord individually, their Subsidiaries that is charged with a crime the responsibility of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoSeller under this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Harland Clarke Holdings Corp)
Contests. (a) Tenant mayAfter the Closing Date, at its expense contestBuyer shall notify Seller in writing within ten (10) days of the date a claim is made or threatened in writing by any Taxing Authority that, if successful, may reasonably be expected to result in an indemnity payment by appropriate proceedings prosecuted diligently Seller under Section 11.1 (a “Tax Claim”). Such notice shall contain factual information describing in reasonable detail the nature and in good faithbasis of such claim and the amount thereof, the validity, or applicability to the Premisesextent known, and shall include copies of any Requirement with which Tenant is obligated notice or other document received from any Taxing Authority in respect of any such asserted Tax liability. Failure by Buyer to comply pursuant give such notice to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord Seller shall not be subject relieve the Seller of any liability that it may have on account of its indemnification obligation under this Section 11, except to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason extent that Seller demonstrates that the defense of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer claim is prejudiced by reason of Buyer’s failure to give such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsnotice.
(b) Without limiting Seller will have the application right, at its option, upon timely notice to Buyer, to assume at its own expense control of subsection any Audit or other defense of any Tax Claim (a)(iother than a Tax Claim relating solely to Taxes of ▇▇▇▇ for a Straddle Period, which as described below, the parties shall jointly control) above theretowith its own counsel, Landlord provided that Seller’s notice acknowledges Seller’s indemnification liability for such claim. Seller’s right to control a Tax Claim will be limited to issues in respect of which amounts in dispute would be paid by Seller or for which Seller would be liable pursuant to Section 11.1. Costs of defending or contesting such Tax Claims are to be borne by Seller unless the Tax Claim relates to a Straddle Period, in which event such costs shall be deemed subject fairly apportioned as described below. Buyer and ▇▇▇▇ at their own expense each shall cooperate with Seller in contesting any Tax Claim, which cooperation shall include the retention and, upon Seller’s request, the provision of records and information that are reasonably relevant to prosecution such Tax Claim and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder. Notwithstanding the foregoing, Seller shall neither consent nor agree to the settlement of any Tax Claim with respect to any liability for a crime within Taxes in excess of US Dollars ten thousand (USD 10,000) on the meaning part of said subsection, if Landlord, ▇▇▇▇ or any officeraffiliated group (as defined in Section 1504(a) of the Code) of which ▇▇▇▇ is a member for any Post-Closing Tax Period without the prior written consent of Buyer, directorwhich consent shall not be unreasonably withheld, partnerconditioned or delayed. Neither Seller, membernor any Affiliate of Seller, principal shall file an amended Tax Return that may increase the liability for Taxes of ▇▇▇▇ for any Post-Closing Tax Period without the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or employee delayed. For the avoidance of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwisedoubt, unless such charge otherwise authorized by Seller in writing, only Seller is withdrawn before Landlord or such officerauthorized to file any Tax return respecting ▇▇▇▇ and any of its Subsidiaries for any pre-Closing Tax period, director, partner, member, principal or employee (including the portion of the Tax year ending on the Closing Date. Buyer and Seller shall jointly control all proceedings taken in connection with any Tax Claims relating solely to a Straddle Period of ▇▇▇▇ and each party shall bear its own out-of-pocket costs and expenses of the contest and all joint costs and expenses of the contest shall be borne in the same ratio as the case may be) is required to plead or answer theretoapplicable proposed Tax would be allocated.
Appears in 1 contract
Sources: Stock Purchase Agreement (Cardiotech International Inc)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, the validity, or applicability to the Premises, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord After the Closing, Buyer, on the one hand, and QuickHire, ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇, on the other hand, shall not be subject promptly notify each other in writing of any demand or claim received by QuickHire, McCarrick, Hochstein, Buyer or ITi from any tax authority or other party with respect to criminal penalty taxes for which QuickHire, ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ are liable pursuant to Section 6.5(b)(i). Such notice shall contain factual information (to the extent known) describing the asserted tax liability in reasonable detail and shall include copies of any notice or to prosecution for a crime nor shall the Premises or other document received from any part thereof be subject to being condemned or vacated, by reason tax authority in respect of non-compliance or otherwise by reason of any such contest;asserted tax liability.
(ii) Tenant QuickHire, ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ may elect to control the conduct, through counsel of their own choosing and at their own expense, of any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 6.5(b)(i) (any such audit, claim for refund or proceeding relating to an asserted tax liability is referred to herein as a "Contest"). If QuickHire, ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ elect to control such a Contest, they shall defendwithin twenty (20) calendar days of receipt of the notice of asserted tax liability notify Buyer of their intent to do so, indemnify and hold harmless Landlord from QuickHire, ▇▇▇▇▇▇▇▇▇ and against ▇▇▇▇▇▇▇▇▇ shall have all rights to settle, compromise and/or concede such asserted liability; provided, however, that Buyer shall have the right to consult with QuickHire, ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ regarding any Contest that may affect ITi for any period after the Closing Date and all actionsprovided further that QuickHire, proceedings▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ shall not have the right to settle, claimscompromise and/or concede any such Contest that may affect ITi for any period after the Closing Date without Buyer's prior written consent, deficiencieswhich consent shall not be unreasonably withheld. If QuickHire, judgments▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ elect not to control such a Contest or fail to notify Buyer of their election as herein provided, suitsBuyer may pay, lossescompromise or contest such Contest, obligationsat its own expense, penaltiessubject to (i) reimbursement by QuickHire, liabilities▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ of reasonable third party expenses and (ii) the indemnification obligations of QuickHire, damages, costs ▇▇▇▇▇▇▇▇▇ and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;▇▇▇▇▇▇▇▇▇ under Section 6.5(b)(i).
(iii) such non-compliance In the event that ▇▇▇▇▇▇▇▇▇ or contest any of his affiliates shall not constitute or result after the Closing take any position in any violation tax return, or reach any settlement or agreement on audit, regarding ITi which is in any manner inconsistent with any position taken by ▇▇▇▇▇▇▇▇▇ in any filing, settlement or agreement made by ▇▇▇▇▇▇▇▇▇ prior to the Closing and such inconsistent position (i) requires the payment by Buyer of more tax than would have been required to be paid had such position not been taken or such settlement or agreement not been reached, (ii) affects the determination of useful life, basis or method of depreciation, amortization or accounting of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking assets or properties of action ITi or furnishing of security (iii) accelerates the time at which any tax must be paid by LandlordBuyer, then ▇▇▇▇▇▇▇▇▇, in each such action case, shall be taken provide timely and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as reasonable notice to the status Buyer of such proceedings.
(b) Without limiting the application of subsection (a)(i) above theretoposition and QuickHire, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ shall, if Landlordjointly and severally, indemnify Buyer and hold it harmless from any tax liability or tax cost or any officerloss arising from, director, partner, member, principal in connection with or employee of Landlord individually, is charged otherwise with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless respect to such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoposition.
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement (Monster Worldwide Inc)
Contests. (a) Tenant mayStockholder and the Buyer shall notify the other party in writing within thirty (30) days of receipt of written notice of any pending or threatened tax examination, at its expense contest, by appropriate proceedings prosecuted diligently and audit or other administrative or judicial proceeding (a "TAX CONTEST") that could reasonably be expected to result in good faith, an indemnification obligation of such other party pursuant to this Agreement. If the validity, or applicability recipient of such notice of a Tax Contest fails to provide such notice to the Premisesother party, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord it shall not be subject entitled to criminal penalty indemnification for any Taxes arising in connection with such Tax Contest, but only to the extent, if any, that such failure or delay shall have adversely affected the indemnifying party's ability to prosecution for a crime nor shall the Premises defend against, settle, or satisfy any action, suit or proceeding against it, or any part thereof be subject damage, loss, claim or demand for which the indemnified party is entitled to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsindemnification hereunder.
(b) Without limiting If a Tax Contest relates to any Taxes for which the application Stockholder is liable in full hereunder, the Stockholder shall, at its expense, control the defense and settlement of subsection (a)(i) above theretosuch Tax Contest. If such Tax Contest relates to any Taxes for which Buyer is liable in full hereunder, Landlord Buyer shall, at its own expense, control the defense and settlement of such Tax Contest. The party not in control of the defense shall have the right to observe the conduct of any Tax Contest at its expense, including through its own counsel and other professional experts. Buyer and the Stockholder shall jointly represent the Company or any Subsidiary in any Tax Contest relating to Taxes for which both are liable hereunder, and fees and expenses related to such representation shall be deemed subject paid by the Buyer and the Stockholder in proportion to prosecution their respective liabilities.
(c) Notwithstanding anything to the contrary in Section 12.06(b), to the extent that an issue raised in any Tax Contest controlled by one party or jointly controlled could materially affect the liability for Taxes of the other party, the controlling party shall not, and neither party in the case of joint control shall, enter into a crime within final settlement without the meaning consent of said subsectionthe other party, which consent shall not be unreasonably withheld. Where a party withholds its consent to any final settlement, that party may continue to initiate further proceedings, at its own expense, and the liability of the party that wished to settle (as between the consenting and non-consenting party) shall not exceed the liability that would have resulted from the proposed final settlement including interest, additions to Tax, and penalties that have accrued at that time, and the non-consenting party shall indemnify the consenting party for such Taxes.
(d) Notwithstanding any other provision of this Agreement to the contrary, if Landlorda Tax Contest results in an increase in Taxes for which the Stockholder is liable hereunder, and such increase is attributable to adjustments based on timing differences which will reverse in taxable periods ending subsequent to the Closing Date, and, Buyer shall pay to the Stockholder, upon the Stockholder's request, an amount equal to the present value of the reduction in Taxes payable by the Buyer and its Affiliates in future taxable periods by reason of such reversal, determined by using a discount rate of 12% and an assumed tax rate of 40%, and by assuming that such reduction in Taxes will occur in the year or any officer, director, partner, member, principal or employee years of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoreversal.
Appears in 1 contract
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter Closing, the validityPurchaser shall promptly notify Deutsche Bank in writing of the proposed assessment or the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchaser or a DB Entity which, or applicability if determined adversely to the Premisestaxpayer or after the lapse of time, could reasonably be expected to be grounds for indemnification by Deutsche Bank under Section 7.01. Such notice shall contain factual information (to the extent known to the Purchaser or a DB Entity) describing the asserted Tax liability in reasonable detail and shall include copies of any Requirement with which Tenant is obligated notice or other document received from any Governmental Authority in respect of any such asserted Tax liability. If the Purchaser fails to comply pursuant give Deutsche Bank prompt notice of an asserted Tax liability as required by this Section 7.04, then Deutsche Bank shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, to the provisions of this Lease, and Landlord shall cooperate with Tenant extent the failure to give such notice resulted in such proceedings, provided that:
(i) Landlord shall not be subject a detriment to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsDeutsche Bank.
(b) Without limiting In the application case of subsection a Tax audit or administrative or judicial proceeding (a)(ia “Contest”) above theretothat relates to periods ending on or before the Closing Date, Landlord Deutsche Bank shall be deemed subject have the sole right, at its expense, to prosecution for a crime within control the meaning conduct of said subsectionsuch Contest; provided, however, that (i) Deutsche Bank shall consult with the Purchaser before taking any significant action in connection with such Contest if such Contest could adversely affect the Purchaser or any of its Affiliates following the Closing Date, and (ii) Deutsche Bank shall not settle, compromise or abandon such Contest, if Landlord, such action would adversely affect the Purchaser or any officerof its Affiliates, directorwithout obtaining the prior written consent of the Purchaser, partnerwhich consent shall not be unreasonably withheld.
(c) With respect to periods beginning before the Closing Date and ending after the Closing Date, memberthe Controlling Party shall have the sole right, principal or employee of Landlord individuallyat its expense, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.control
Appears in 1 contract
Contests. After the Closing Date, Parent shall promptly notify the Representative of the receipt of any written notice by the Surviving Corporation, Parent or any of Parent’s affiliates which involves the assertion of any claim, or the commencement of any Action, in respect of which an indemnity may be sought by Parent pursuant to Article VIII (aa “Tax Claim”); provided, that failure to comply with this provision shall not affect Parent’s right to indemnification hereunder, except to the extent the Sellers shall have been materially prejudiced by such failure. The Representative shall be entitled (at the Sellers’ expense) Tenant mayto participate and, at its expense contestoption, by appropriate proceedings prosecuted diligently take control of the defense of any pending or threatened Tax Claim, in whole or in part (including any resulting litigation), and in good faithto employ counsel of its choice at its expense. If the Representative elects to assume the defense of a Tax Claim, the validityRepresentative shall keep Parent reasonably informed of all material developments relating to such Tax Claim, or applicability and shall allow Parent sufficient notice and opportunity to participate in the Tax Claim to the Premises, extent of any Requirement with claims for Taxes for which Tenant is obligated Parent (or the Company or any Subsidiary) may be liable. Neither Parent nor the Representative shall settle or compromise (or cause to comply pursuant to be settled or compromised) a matter involving a claim for Taxes for which the provisions other party may be liable under this Agreement without the prior written consent of this Leasesuch other party, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord which consent shall not be subject to criminal penalty unreasonably delayed, conditioned or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedings.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwisewithheld, unless such charge is withdrawn before Landlord Parent or such officerthe Representative, director, partner, member, principal or employee (as the case may be, waives the right to be indemnified for the issue being conceded or settled. To the extent the Representative elects to control a Tax Claim pursuant to this Section 7.3, the Representative shall use (and shall cause the Sellers and their affiliates to use) its commercially reasonable efforts to separate from any such Tax Claim any item in respect of which an indemnity is required not sought by Parent pursuant to plead or answer theretoArticle VIII, and to permit, to the greatest extent possible, Parent to control the contest of any such item.
Appears in 1 contract
Sources: Merger Agreement (Ennis, Inc.)
Contests. (ai) Tenant mayIf a Governmental Entity asserts a claim for Taxes against the Company or its Subsidiaries and (ii) Sellers could be responsible for any portion of those Taxes under Section 7.2(a) (any such claim, a “Tax Claim”), then the Party first receiving notice of such Tax Claim shall promptly provide to Parent, the Surviving Corporation and the Representative written notice specifying in reasonable detail the basis for such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the Governmental Entity in respect of such Tax Claim; provided, however, that the failure of such party to give such prompt and detailed notice shall not relieve the other party of any of its obligations under this Section 7.2, except if and only to the extent that the other party is actually and materially prejudiced thereby.
(ii) If, within 30 days after the Representative receives notice of a Tax Claim (whether from a Governmental Entity or pursuant to Section 7.2(g)(i)), which relates solely to Taxes for which Sellers would be responsible under Section 7.2, the Representative provides to Parent a written notice in which the Representative elects to contest, and to control the defense or prosecution of, such Tax Claim, then, subject to the provisions of this Section 7.2(g), the Representative shall have the right to defend or prosecute and the right to control, at the Sellers’ sole cost and expense, such Tax Claim by all appropriate proceedings. Parent shall be entitled to control the defense of all other Tax Claims of the Company and its expense contestSubsidiaries. For any Tax Claim that the Representative is entitled to control pursuant to this Section 7.2(g) or that relates to a Tax for which the Sellers are responsible pursuant to Section 7.2(a), by appropriate proceedings prosecuted (i) the Party controlling the defense or prosecution of the Tax Claim (the “Controlling Person”) shall defend or prosecute the Tax Claim diligently and in good faith; (ii) the Controlling Person shall not enter into any compromise or settlement of such Tax Claim without the prior written consent of the other Parties (the “Non-Controlling Person”), which shall not be unreasonably withheld, conditioned or delayed; (iii) the validity, or applicability Controlling Person shall inform the Non-Controlling Person of all material developments and events relating to such Tax Claim (including providing to the Premises, Non-Controlling Person copies of any Requirement with which Tenant is obligated relevant portions of all written materials relating to comply pursuant to such Tax Claim); (iv) the provisions of this Lease, and Landlord Non-Controlling Person shall cooperate with Tenant the Controlling Person and its representatives in good faith in order to contest effectively such proceedingsTax Claim; and (v) the Non-Controlling Person or its authorized representative shall be entitled, provided that:
at its own expense (i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall or, in the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition case of the taking of action or furnishing of security by LandlordRepresentative, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as the Sellers), to the status of attend and participate in, all conferences, meetings and proceedings relating to such proceedingsTax Claim.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, the validity, or applicability to the Premises, of any Requirement with which Tenant is obligated to comply pursuant Subject to the provisions of this Leasethe proceeding paragraph, and Landlord Buyer, Harriscope, or the Joint Venture shall cooperate take such action in connection with Tenant contesting such Claim as the relevant Sellers shall reasonably request in such proceedings, writing from time to time; provided that:
that (i) Landlord shall not within 30 days (or such earlier date that any payment of Taxes is due by Buyer, Harriscope, or the Joint Venture) after the notice described in subsection 9.7(b)(i) has been delivered to Sellers, Sellers request that such Claim be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
contested; (ii) Tenant shall defendprior to taking such action, indemnify and hold harmless Landlord from and against any and all actionsSellers have furnished to Buyer or Harriscope, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedings.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be, an opinion of Sellers' independent tax counsel, which counsel shall be reasonably acceptable to Buyer, to the effect that a reasonable basis exists for such contest (or appeal, in the case of an appeal prosecuted pursuant to the proceeding paragraph); (iii) Sellers shall have agreed to pay to Buyer or Harriscope on demand all costs and expenses which Buyer or Harriscope may incur in connection with contesting such Claim (or appeal), including, without limitation, reasonable attorneys' and accountants' fees and disbursements; and (iv) if Buyer or Harriscope is requested or shall determine to pay the Tax claimed and ▇▇▇ for a refund, Sellers shall have advanced to Buyer or Harriscope, on an interest-free basis, the amount of such Claim. In the case of any such Claim referred to above, Buyer or Harriscope, as the case may be, shall not make payment of such Claim for at least 30 days (or such shorter period as may be required by applicable law) after the giving of such notice, shall give to plead Sellers any information reasonably requested by Sellers relating to such Claim and otherwise shall cooperate with Sellers in good faith in order to contest effectively any such Claim, and to the extent not inconsistent with Buyer's or answer theretoHarriscope's control over any proceedings (as described below) insofar as they relate to issues other than those subject to this indemnity, shall permit Sellers to participate in such proceedings relating to such claim (or appeal). With respect to contests against Buyer, the Joint Venture or Harriscope, Buyer or Harriscope shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such Claim and may, at its sole option, either pay the Tax claimed and ▇▇▇ for a refund where applicable law permits such refund suits or contest the Claim in any permissible manner; provided, however, that Buyer or Harriscope, as the case may be, shall (subject to the provisions of the preceding paragraph) consider in good faith (A) any request Sellers may make concerning the most appropriate manner in which to proceed, and (B) the manner in which it would proceed if it were not indemnified hereunder.
Appears in 1 contract
Sources: Agreement to Purchase NST Venture Interest and Capital Stock (Oak Industries Inc)
Contests. (ai) Tenant Each of Buyer, on the one hand, and the Seller Representative, on the other hand, will promptly notify the other Party in writing upon receipt by such Party (or any of its Affiliates) of notice of any pending or threatened audit, examination or Proceeding by a Governmental Entity in respect of which an indemnity may be sought pursuant to this Agreement (a “Tax Claim”); provided, however, that the failure of such Party to give prompt notice shall not relieve the other Party of any of its obligations under this Section 7.11(e) except to the extent the other Party can demonstrate actual prejudice as a result of such failure.
(ii) The Seller Representative may, at its expense contestown expense, by appropriate proceedings prosecuted diligently participate in, and upon written notice to Buyer, assume the defense of any Tax Claim relating to any Pre-Closing Tax Period that ends on or prior to the Closing Date, if the Seller Representative at all times conduct the defense of the Tax Claim in good faith and in good faith, the validity, or applicability to the Premises, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;reasonably diligent manner.
(iii) The Seller Representative will have the right to participate jointly with Buyer in representing the interests of the Acquired Companies in any Tax Claim relating to a Straddle Period, if and to the extent that such nonperiod includes any Pre-compliance or contest Closing Tax Period. Buyer and the Seller Representative agree to cooperate in the defense of any claim in such Proceeding and Buyer shall not constitute settle any such claim without the Seller Representative’s prior written consent, which shall not be unreasonably withheld, conditioned or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; anddelayed.
(iv) Tenant shall keep Landlord advised as Notwithstanding anything herein to the status contrary, to the extent that there is an audit of such proceedings.
(b) Without limiting any of the application of subsection (a)(i) above thereto, Landlord shall be deemed Acquired Companies that is subject to prosecution the centralized partnership audit regime provided for a crime within by the meaning Bipartisan Budget Act of said subsection2015 (the “BBA Procedures”) with respect to any taxable year or portion thereof prior to the Closing that results in an imputed underpayment of tax for such year or portion thereof, if Landlord, the Seller Representative shall cause the relevant “partnership representative” or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime “designated individual” (as those terms are defined by the Code and applicable Treasury Regulations) of any kind such of the Acquired Entities to cause such Acquired Entity or degree whateverAcquired Entities to make a push-out election pursuant to Section 6226 of the Code, whether by service to the extent permissible under the Code and the Treasury Regulations; provided, however, that the Seller Representative shall consult with Buyer before making any such election to confirm Buyer’s consent with such election. To the extent such an election cannot be made, the remainder of a summons or otherwise, unless this Section 7.11(e) shall control with respect to such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoaudit.
Appears in 1 contract
Sources: Securities Purchase Agreement (J&j Snack Foods Corp)
Contests. (a) Tenant mayAfter the Closing, at its expense contesteach party shall promptly notify the other parties in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding, by appropriate proceedings prosecuted diligently and in good faithwhich, if determined adversely to the taxpayer, would be grounds for indemnification under Section 6.03; provided, however, that the failure to give such notice will not affect any party's right to indemnification under this Agreement except to the extent, if any, that, but for such failure, the validity, or applicability to indemnifying party would have avoided the Premises, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant Tax Liability in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsquestion.
(b) Without limiting In the application case of subsection an audit or administrative or judicial proceeding (a)(ia "Contest") above theretothat relates to a Pre-Closing Period, Landlord the Seller shall have the right, at its expense, to participate in and control the conduct of such Contest, but only to the extent that such Contest relates solely to a potential adjustment to Tax Liability for which the Seller has acknowledged, in writing, its liability under Section 6.03 to hold the Purchaser and the Company harmless against the full amount of any adjustment which may be made as a result of such Contest. The Purchaser also may participate in any such Contest, and, if the Seller does not assume the defense of any such Contest, the Purchaser may defend the same in such manner as it may deem appropriate, including settling such Contest after five days' prior written notice to the Seller setting forth the terms and conditions of settlement. Notwithstanding anything to the contrary contained in this Agreement, in the event that issues relating to a potential adjustment for which the Seller has acknowledged its liability in writing are required to be contested in the same Contest as separate issues relating to a potential adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to control the Contest with respect to the latter issues.
(c) In the case of a Contest that relates to a Straddle Period, or otherwise with respect to issues relating to a potential adjustment for which both the Seller (as evidenced by its written acknowledgement of liability under Section 6.03), on the one hand, and the Purchaser, on the other hand, could be liable, (i) the Seller and the Purchaser may participate in the Contest, and (ii) such Contest shall be deemed subject controlled by that party which would bear the burden of the greater portion of the sum of the adjustment and any corresponding adjustments that may reasonably be anticipated for future taxable periods. The principle set forth in this Section 6.04(c) also shall govern for purposes of deciding any issue that must be decided jointly (including choice of judicial forum) in situations in which separate issues are otherwise controlled under this Article VI by the Purchaser and the Seller.
(d) Notwithstanding anything to prosecution for the contrary herein, the Seller shall not enter into any compromise or agree to settle any claim pursuant to a crime within Contest, which would materially adversely affect the meaning Purchaser or the Company in a taxable period ending after the Closing Date without the prior written consent of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoPurchaser.
Appears in 1 contract
Sources: Stock Purchase Agreement (Macquarie Infrastructure Assets LLC)
Contests. For purposes of this Agreement, a "Contest" is any audit, court proceeding or other dispute with respect to any Tax matter that affects the Company. Unless the Purchaser has previously received written notice from the Seller of the existence of such Contest, the Purchaser shall give written notice to the Seller of the existence of any Contest relating to a tax matter that is the Seller's responsibility under Sections 8.1 and 8.4 within ten days from the receipt by the Purchaser of any written notice of such Contest. Unless the Seller has previously received written notice from the Purchaser of the existence of such Contest, the Seller shall give written notice to the Purchaser of the existence of any Contest relating to a tax matter for which the Purchaser has responsibility within ten days from the receipt by the Seller of any written notice of such Contest. The Purchaser, on the one hand, and the Seller, on the other, agree, in each case at no cost to the other party, to cooperate with the other and the other's representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall include, but not be limited to, making available to the other party, during normal business hours, all books, records, returns, documents, files, other information (aincluding without limitation working papers and schedules), officers or employees (without substantial interruption of employment) Tenant mayor other relevant information necessary or useful in connection with any Contest requiring any such books, records and files. The Seller shall, at its expense contestelection, by appropriate proceedings prosecuted diligently have the right to represent the Company's interests in any Contest relating to a tax matter arising in a taxable period ending on or before the Closing Date for which it is responsible under Sections 8.1 and in good faith8.4, the validityto employ counsel of its choice at its expense, or applicability which counsel shall be reasonably acceptable to the PremisesPurchaser, and to control the conduct of such Contest, including settlement or other disposition thereof; provided, however, that the Purchaser shall have the right to consult with the Seller regarding any such Contest that may affect the Company for any post-acquisition periods ("Purchaser-Involved Contest") at the Purchaser's own expense, provided further that any settlement or other disposition of any Requirement such Purchaser-Involved Contest may only be with which Tenant is obligated to comply pursuant to the provisions consent of this LeasePurchaser, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedings.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.which
Appears in 1 contract
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, the validity, or applicability to the Premises, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord After the Closing, Buyer shall not be subject promptly notify Seller in writing of (x) any correspondence from any Tax authority relating to criminal penalty any Tax Return filed by Seller pursuant to Section 5.15(b)(i) or by Buyer pursuant to prosecution for Section 5.15(b)(ii) and (y) any written notice of a crime nor shall the Premises proposed assessment or claim in an audit or administrative or judicial proceeding involving CMI, CEL or any part thereof of their Subsidiaries (clauses (x) and (y) together, a "TAX CONTEST") which, if determined adversely to the taxpayer, would be subject grounds for indemnification by Seller (including any payment under Section 5.15(c)); PROVIDED, HOWEVER, that a failure to being condemned or vacatedgive such notice will not affect Buyer's right to indemnification (including any payment under Section 5.15(d)) hereunder except to the extent, by reason of non-compliance or otherwise by reason of if any, that, but for such contest;failure, such Group Company and Seller could have avoided the Tax liability in question.
(ii) Tenant In the case of a Tax Contest that relates to a Pre-Closing Period, Seller shall defend, have the right at its expense to control the conduct of such Tax Contest; PROVIDED that (x) Seller shall indemnify and hold harmless Landlord from and against any and Group Company in respect of all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, third-party costs and expenses incurred by such Group Company at Seller's request in connection with such Tax Contest, (including court costs y) Seller shall keep Buyer informed of all material progress (and reasonable legal fees shall send Buyer copies of all material correspondence relating thereto) of the Tax Contest and disbursements(z) Seller shall not enter into any compromise or agree to settle any claim pursuant to such Tax Contest with respect to any issue that recurs for any Straddle Period or Post-Closing Period or any item resulting in a reciprocal adjustment to any Straddle Period or Post-Closing Period without the prior written consent of Buyer (which Landlord consent shall suffer by reason not be unreasonably withheld, conditioned or delayed). Buyer also may participate at its own expense in any such Tax Contest and, if Seller does not notify Buyer within 30 days of receiving notice of such non-compliance or contest;Tax Contest pursuant to Section 5.15(e)(i) hereof of its intent to assume the defense of such Tax Contest, Buyer may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such Tax Contest after giving five days' prior written notice to Seller setting forth the terms and conditions of settlement.
(iii) In the case of a Tax Contest that relates to a Straddle Period, (x) each of Seller and Buyer may participate in the Tax Contest, and (y) the Tax Contest shall be controlled by that party which would bear the burden of the greater portion of the adjustment (the "CONTROLLING PARTY"); PROVIDED that (a) the Controlling Party shall indemnify any Group Company in respect of all third-party costs and expenses incurred by such non-compliance or contest Group Company at the Controlling Party's request in connection with such Tax Contest, (b) the Controlling Party shall keep the other party informed of all material progress (and shall send such party copies of all material correspondence relating thereto) of the Tax Contest and (c) if Seller is the Controlling Party, Seller shall not constitute enter into any compromise or result agree to settle any claim pursuant to such Tax Contest with respect to any issue that recurs for any Straddle Period or Post-Closing Period or any item resulting in a reciprocal adjustment to any violation Straddle Period or Post-Closing Period without the prior written consent of any superior lease Buyer (which consent shall not be unreasonably withheld, conditioned or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition delayed). The principle set forth in clause (b) of the taking preceding sentence also shall govern for purposes of action or furnishing deciding any issue that must be decided jointly (in particular, choice of security judicial forum) in situations in which separate issues are otherwise controlled hereunder by Landlord, such action shall be taken Buyer and such security shall be furnished at the expense of Tenant; andSeller.
(iv) Tenant In the case of a Tax Contest that relates to a Post-Closing Period, Buyer shall keep Landlord advised as have the right at its expense to control the status conduct of such proceedingsTax Contest.
(bv) Without limiting Except as provided in paragraph (ii) above, neither Buyer nor Seller shall enter into any compromise or agree to settle any claim pursuant to any Tax Contest which would adversely affect the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution other party for such year or a crime within the meaning of said subsection, if Landlordsubsequent year, or which would result in a payment under Section 5.15(d), without the written consent of the other party, which consent may not be unreasonably withheld. Buyer and Seller agree to cooperate, and Buyer agrees to cause CMI, CEL and any officerof their Subsidiaries to cooperate, director, partner, member, principal in the defense against or employee of Landlord individually, is charged with a crime compromise of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoclaim in any Tax Contest.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Crown Media Holdings Inc)
Contests. (a) Tenant mayBuyer agrees to promptly give written notice to the Sellers’ Representative of the receipt of any written notice by the Company, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, the validityBuyer, or applicability any of their respective Affiliates which involves the assertion of any claim, or the commencement of any Action, in respect of which either of the Seller Members may be required to pay Taxes as a result of such claim or Action, or an indemnity may be sought by Buyer or any Buyer Indemnitee for Indemnified Taxes (a “Tax Claim”); provided, that failure to comply with this provision shall not affect Buyer’s or any Buyer Indemnitees’ right to indemnification hereunder to the Premisesextent such failure materially prejudices the Seller Members. The Sellers’ Representative shall control contests of Tax Claims solely relating to any Company Income Tax Returns filed on a pass-through basis for a Pre-Closing Tax Period; provided, however, that the Sellers’ Representative shall obtain the prior written consent of any Requirement with Buyer (which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord consent shall not be subject unreasonably withheld or delayed) before entering into any settlement of a claim or ceasing to criminal penalty or defend such claim relating to prosecution for a crime nor any such Company Income Tax Return; and, provided further, that Buyer shall be entitled to participate in the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason defense of such contest;
(ii) Tenant shall defendclaim and to employ counsel of its choice for such purpose, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs the fees and expenses of which separate counsel shall be borne solely by Buyer. In addition to the foregoing, Buyer shall obtain the prior written consent of the Sellers’ Representative (including court costs which consent shall not be unreasonably withheld or delayed) before entering into any settlement of a claim or ceasing to defend such claim relating to any Tax Claim that is not controlled by the Sellers’ Representative; and, provided further, that the Sellers’ Representative shall be entitled to participate in the defense of such claim and reasonable legal to employ counsel of its choice for such purpose, the fees and disbursements) expenses of which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action separate counsel shall be taken and such security shall be furnished at borne solely by the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsSellers’ Representative.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (PLAYSTUDIOS, Inc.)
Contests. (a) Tenant mayParent agrees to give prompt written notice to Shareholder Representative of the receipt of any notice by the Company, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, Parent or any Affiliates thereof which involves the validityassertion of any claim, or applicability the commencement of any Action with respect to Taxes (A) for which the Shareholders could have an indemnification obligation under Section 8.2 or (B) which relates to a Pre-Closing Tax Period or Straddle Period of the Company (a “Tax Claim”); provided, that failure to comply with this provision shall not affect Parent Indemnitees’ right to indemnification hereunder, except to the Premises, of any Requirement with which Tenant is obligated to comply pursuant to extent that the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty Shareholder Representatives or to prosecution for a crime nor shall the Premises Shareholders forfeit rights or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise defenses by reason of such contest;
failure. Shareholder Representative shall have the right to control the contest or resolution of any Tax Claim that relates to a Pre-Closing Tax Period (iiincluding any Tax Claim with respect to any income Tax Return filed by Company as a Subchapter S corporation) Tenant by notifying Parent in writing, within thirty (30) days of the receipt of notification of such Tax Claim from Parent, that the Shareholder Representative will assume the defense of such Tax Claim, provided, however, that the Shareholder Representative shall defendobtain the prior written consent of Parent (which consent shall not be unreasonably withheld or delayed) before entering into any settlement of a Tax Claim or ceasing to defend such Tax Claim; and, indemnify provided further, that Parent shall be entitled to participate in (but not control) the defense of such Tax Claim and hold harmless Landlord from and against any and all actionsto employ counsel of its choice for such purpose, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs the fees and expenses of which separate counsel shall be borne solely by Parent. Parent shall control the contest or resolution of all other Tax Claims (including court costs any Tax Claims that the Shareholder Representative has not assumed the defense thereof); provided, however, that Parent shall obtain the prior written consent of Shareholder Representative (which consent shall not be unreasonably withheld or delayed) before entering into any settlement of a claim or ceasing to defend such claim; and, provided further, that Shareholder Representative shall be entitled to participate in the defense of such claim and reasonable legal to employ counsel of its choice for such purpose, the fees and disbursementsexpenses of which separate counsel shall be borne solely by Shareholder Representative. Notwithstanding the foregoing and anything to the contrary herein, the Shareholder Representative shall control the contest or resolution of a Tax litigation currently pending in the United States Tax Court (Docket Nos. 11565-15, 28033-15, 28077-15, 28095-15, 28422-15, 28423-15 and 28435-15) (“Tax Litigation”), provided, however, that the Shareholder Representative shall obtain the prior written consent of Parent (which Landlord consent shall suffer by reason not be unreasonably withheld or delayed) before entering into any settlement of a Tax Litigation or ceasing to defend such Tax Litigation, and, provided further, that Parent shall be entitled to participate in (but not control) the defense of such non-compliance or contest;
(iii) Tax Litigation and to employ counsel of its choice for such non-compliance or contest shall not constitute or result in any violation purpose, the fees and expenses of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action which separate counsel shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsborne solely by Parent.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Contests. For purposes of this Agreement, a "Contest" is any audit, court proceeding or other dispute with respect to any Tax matter that affects the Company. Unless the Purchaser has previously received written notice from the Seller of the existence of such Contest, the Purchaser shall give written notice to the Seller of the existence of any Contest relating to a Tax matter that is the Seller's responsibility under Section 11.3 within ten (a10) Tenant maydays from the receipt by the Purchaser of any written notice of such Contest, but no failure to give such notice shall relieve the Seller of any liability hereunder except to the extent such failure increases any interest or penalties that otherwise would be payable by Seller hereunder. Unless the Seller has previously received written notice from the Purchaser of the existence of such Contest, the Seller shall give written notice to the Purchaser of the existence of any Contest relating to a Tax matter for which the Purchaser has responsibility within ten (10) days from the receipt by the Seller of any written notice of such Contest but no failure to give such notice shall relieve the Purchaser of any liability hereunder except to the extent such failure increases any interest or penalties that otherwise would be payable by Purchaser hereunder. The Purchaser, on the one hand, and the Seller, on the other, agree, in each case at no cost to the other party, to cooperate with the other and the other's representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall include, but not be limited to, making available to the other party, during normal business hours, all books, records, returns, documents, files, other information (including without limitation working papers and schedules), officers or employees (without substantial interruption of employment) or other relevant information necessary or useful in connection with any Contest requiring any such books, records, files, other items, persons and information. The Seller shall, at its expense contestelection, by appropriate proceedings prosecuted diligently and have the right to represent the Company's interests in good faithany Contest relating to a Tax matter relating to or arising in a Pre-Acquisition Period, the validityto employ counsel of its choice at its expense, or applicability which counsel shall be reasonably acceptable to the PremisesPurchaser, and to control the conduct of such Contest, including settlement or other disposition thereof; provided, however, that the Purchaser shall have the right to consult with the Seller regarding any such Contest that may affect the Company for any Post-Acquisition Periods at the Purchaser's own expense, provided further that any settlement or other disposition of any Requirement such Contest may only be made with the consent of Purchaser, which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord consent shall not be subject unreasonably withheld. With regard to criminal penalty Contests relating solely to Tax matters that are the Seller's responsibility under Section 11.3 and which could have no effect on any Taxes that are the Purchaser's responsibility under Section 11.4, the Seller shall have the exclusive right to decide whether any consent or waivers to prosecution extend applicable statutes of limitations shall be granted. The Purchaser shall have the sole and exclusive right to control the conduct of any Contest, including settlement or other disposition thereof, with respect to any Tax matter relating to or arising in a Post-Acquisition Period; provided, however, that the Seller shall have the right to consult with the Purchaser regarding any such Contest that may affect the Company for a crime nor shall any Pre-Acquisition Periods at the Premises Seller's own expense, provided further that any settlement or other disposition of any part thereof such Contest may only be subject to being condemned or vacatedmade with the consent of Seller, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest consent shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsunreasonably withheld.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Contests. If, within 30 days of receipt of a Tax Notice from an Indemnitee (aor such shorter period as such Indemnitee has notified the Company is required by law or regulation for such Indemnitee to contest such Tax Loss), the Company shall request in writing that such Indemnitee contest such Tax Loss, such Indemnitee shall, at the Company's expense, in good faith conduct and control such contest (including, without limitation, by pursuit of appeals) Tenant mayby, in the sole discretion of the Company, (i) resisting payment thereof, (ii) not paying the same except under protest, if protest is necessary and proper, (iii) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (iv) taking such other action as is reasonably requested by the Company from time to time; PROVIDED, HOWEVER, that (x) if such contest can be pursued independently from any other proceeding involving a Tax liability of such Indemnitee, such Indemnitee, at the Company's request, shall allow the Company to conduct and control such contest and (y) in the case of any contest that the Company is not entitled to control, the Indemnitee may request the Company to conduct and control such contest if possible or permissible under applicable law or regulation. Notwithstanding the foregoing provisions of this Section 4, such Indemnitee shall not be required to take any action and the Company shall not be able to contest such claim or Tax in its own name or that of such Indemnitee unless (i) the Company shall have agreed to pay, and shall pay, to such Indemnitee on demand all reasonable out-of- pocket third party costs and expenses that such Indemnitee may incur in connection with contesting such claim or Taxes, including all reasonable legal (including non-duplicative internal counsel), accounting and investigatory fees and disbursements, (ii) the amount of the potential indemnity exceeds $50,000, (iii) the action to be taken will not result in any material risk of criminal penalties and (iv) if such contest shall involve the payment of the Tax prior to the contest, the Company shall, at its expense contestoption (and notwithstanding anything herein to the contrary), by appropriate proceedings prosecuted diligently and either (A) pay such Indemnitee for such Taxes or (B) provide to such Indemnitee an interest-free advance in an amount equal to the Tax which such Indemnitee is required to pay (with no additional net after-tax cost to such Indemnitee). In no event shall an Indemnitee be required to appeal an adverse judicial determination to the United States Supreme Court. Any Indemnitee shall consult in good faith, faith with the validity, or applicability to Company regarding the Premises, conduct of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Leasecontest controlled by such Indemnitee, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised the Company fully informed as to the status of the contest and shall consider in good faith all suggestions made by the Company regarding the conduct of any such proceedings.
(b) Without limiting the application of subsection (a)(i) above theretocontest, Landlord shall be deemed subject to prosecution for preserving counsel privilege in the Indemnitee's reasonable judgment. An Indemnitee shall not have the right to settle or compromise a crime within contest without the meaning prior written consent of said subsectionthe Company, if Landlordsuch consent not to be unreasonably withheld. If an Indemnitee agrees to a settlement or compromise of such contest without the prior written consent of the Company, such Indemnitee shall waive its rights to any indemnity from the Company that otherwise would be payable in respect of such claim and shall pay to the Company any amount previously paid or any officer, director, partner, member, principal or employee of Landlord individually, is charged advanced by the Company pursuant to this Section 4 with a crime of any kind or degree whatever, whether respect to such Taxes other than contest costs paid by service of a summons or otherwise, unless the Company pursuant to this Section 4 as it relates to such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretocontest.
Appears in 1 contract
Sources: Tax Indemnity Agreement (Safety Insurance Group Inc)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing Date, the validityBuyer shall promptly notify the Sellers in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding involving the Company or any of its Subsidiaries which, or applicability if determined adversely to the PremisesCompany or relevant Subsidiary, of any Requirement with which Tenant is obligated would be grounds for indemnification under this Article 7; provided, however, that a failure to comply pursuant give such -------- ------- notice will not affect a Buyer Indemnified Person's right to indemnification hereunder except to the provisions of this Leaseextent, and Landlord shall cooperate with Tenant if any, that, but for such failure, the Sellers could have avoided the Tax liability in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsquestion.
(b) Without limiting Except as provided in Section 7.3(c) below, in the application case of an audit or administrative or judicial proceeding that relates to any Pre-Closing Period, the Sellers shall have the right at their own expense to control the conduct of such audit or proceeding; provided -------- that within 30 days after the Sellers have received the written notice from the Buyer that is required under Section 7.3(a) above, and prior to taking any action with respect to such audit or administrative or judicial proceeding, the Sellers acknowledge in writing their joint liability under Section 7.3(b)(i) of this Agreement to hold any Buyer Indemnified Person harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding that relates to the Pre-Closing Period (to the extent such amount exceeds the Closing Balance Sheet Tax Reserve after giving effect to all prior and concurrent payments made pursuant to Section 7.3(b)(i) of this Agreement to any Buyer Indemnified Person); provided, -------- further, that the Sellers may not agree to a settlement or compromise ------- to any such audit or proceeding that may reasonably be expected to have an adverse effect on the tax liability of the Company for a taxable period after the Closing Date without the prior written consent of the Buyer; provided, further, that if the Buyer does not consent to such -------- ------- settlement or compromise, the Sellers' liability to indemnify the Buyer as a result of such audit or proceeding shall be limited to the amount that the Sellers would have paid had the Buyer consented to such settlement or compromise. The Buyer also may participate in any such audit or proceeding at its own expense and, if the Sellers do not assume the defense of any such audit or proceeding, the Buyer may defend the same at its own expense in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding, without any effect to any Buyer Indemnified Person's right to indemnification under this Article 7.
(c) Notwithstanding subsection (a)(ia) above theretoabove, Landlord any contest and/or settlement of any issue raised in an official inquiry, examination or proceeding that relates to the validity or effect of the Election will be conducted by the Buyer and the Company.
(d) In the case of an audit or administrative or judicial proceeding that relates to the Interim Period, the Buyer shall have the right at its own expense to control the conduct of such audit or proceeding; provided that the Buyer may not agree to a settlement or -------- compromise in any such audit or proceeding without the prior written consent of the Seller's Representative (as defined in Section 12.5 below), which consent shall not be deemed subject to prosecution for a crime within the meaning of said subsectionunreasonably withheld. The Sellers also may participate in any such audit or proceeding at their own expense and, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime the Buyer does not assume the defense of any kind such audit or degree whateverproceeding, whether by service of a summons the Sellers may defend the same at its own expense in such manner as it may deem appropriate, including, but not limited to, settling such audit or otherwiseproceeding, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as without any effect to the case may be) is required Sellers' right to plead or answer theretoindemnification under this Article 7.
Appears in 1 contract
Sources: Share Purchase Agreement (United Rentals North America Inc)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validityPurchaser shall promptly notify the Seller in writing of any written notice of a proposed assessment or claim in an audit or administrative or judicial proceeding of the Purchaser or of April which, or applicability if determined adversely to the Premisestaxpayer, of any Requirement with which Tenant is obligated would be grounds for indemnification under this Section 4; provided, however, that a failure to comply pursuant give such notice will not affect the Purchaser's right to indemnification under this Section 4 except to the provisions of this Leaseextent, and Landlord shall cooperate with Tenant in if any, that, but for such proceedingsfailure, provided that:
(i) Landlord shall not be subject to criminal penalty the Seller could have avoided all or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition portion of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsTax liability in question.
(b) Without limiting In the application case of subsection an audit or administrative or judicial proceeding that relates to periods ending on or before the Closing Date, provided that SHOC and the Principals acknowledge in writing their liability under this Agreement to hold the Beazer Indemnified Parties and April harmless against the full amount of any Adjustment which may be made as a result of such audit or proceeding that relates to periods ending on or before the Closing Date (a)(ior, in the case of any taxable year that includes the Closing Date, against an Adjustment allocable under Section 4.1(a) above theretoto the portion of such year ending on or before the Closing Date), Landlord the Shareholders shall have the right at their expense to participate in and control the conduct of such audit or proceeding but only to the extent that such audit or proceeding relates solely to a potential Adjustment for which the Shareholders have acknowledged their liability; the Purchaser also may participate in any such audit or proceeding and, if the Shareholders do not assume the defense of any such audit or proceeding, the Purchaser may defend the same in such manner as it may deem appropriate, including, but not limited to, settling such audit or proceeding after giving five days’ prior written notice to the Shareholders setting forth the terms and conditions of settlement. In the event that issues relating to a potential Adjustment for which the Shareholders and the Principals have acknowledged their liability are required to be dealt with in the same proceeding as separate issues relating to a potential Adjustment for which the Purchaser would be liable, the Purchaser shall have the right, at its expense, to control the audit or proceeding with respect to the latter issues.
(c) With respect to issues relating to a potential Adjustment for which both the Shareholders and the Principals (as evidenced by its acknowledgment under this Section 4.4) and the Purchaser or April or High View could be liable, (i) each party may participate in the audit or proceeding, and (ii) the audit or proceeding shall be deemed subject controlled by that party which would bear the burden of the greater portion of the sum of the Adjustment and any corresponding Adjustments that may reasonably be anticipated for future Tax periods. The principle set forth in the immediately preceding sentence shall govern also for purposes of deciding any issue that must be decided jointly (including, without limitation, choice of judicial forum) in situations in which separate issues are otherwise controlled under this Section 4 by the Purchaser and the Shareholders.
(d) Neither the Purchaser nor the Shareholders shall enter into any compromise or agree to prosecution settle any claim pursuant to any Tax audit or proceeding which would adversely affect the other party for such year or a crime within subsequent year without the meaning written consent of said subsectionthe other party, if Landlordwhich consent may not be unreasonably withheld. The Purchaser and the Shareholders agree to cooperate, and the Purchaser agrees to cause April and High View to cooperate, in the defense against or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime compromise of any kind claim in any audit or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoproceeding.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Assets and Stock (Beazer Homes Usa Inc)
Contests. A. The Managing Member, in its capacity as the TMP, shall inform the Investor Member promptly of any oral or written communication or request for information which the Managing Member may receive from, or conference with, the IRS directly related to an administrative proceeding with respect to the Company, the Project or the Historic Tax Credit relating to the Project.
B. The Managing Member, in its capacity as the TMP, shall confer with the Investor Member and its counsel before responding to any notice, letter, request for information, request for inspection of documents, subpoena or other correspondence or item of communication or document received by the Managing Member, from, or oral request made by, the IRS which is directly related to an administrative proceeding with respect to the Company, Project or the Historic Tax Credit relating to the Project.
C. If the Managing Member desires to contest a determination by the IRS with respect to a Company tax item that would result in an adjustment, Tax Indemnity Payment, distribution, or other payment under the provisions of Section 5.3 (a “Deficiency Amount”) and the Investor Member objects to such a contest, the Investor Member shall waive in writing its right to receive distributions or payments under this Agreement with respect to that Company item and the Managing Member shall waive in writing its right as TMP to pursue the contest with respect to the Company item.
D. If the Managing Member and the Investor Member want to contest a determination by the IRS with respect to a Company tax item, then the Company shall be liable for the Costs of Contest, and
(i) the Investor Member shall select Qualified Counsel for the contest, which counsel shall be reasonably satisfactory to the Managing Member, and shall control the contest, or
(ii) if either (a) Tenant maythe credit quality (in the reasonable judgment of the Investor Member) of the Guarantor has not decreased materially from that set forth in its audited financial statements dated as of December 31, at its expense 1999, or (b) the Managing Member provides the Investor Member security, in a form reasonably satisfactory to the Investor Member, in an amount necessary to secure the Managing Member’s obligations that may become due under this Agreement if the conflict were not resolved favorably for the Company and the Managing Member agrees in writing that all amounts due to the IRS as a result of the resolution of such contest are indemnified by the Managing Member, then the TMP shall select Qualified Counsel for the contest, which counsel shall be reasonably satisfactory to the Investor Member, and shall control the contest.
E. If the Managing Member does not want, and the Investor Member does want, to contest a determination by appropriate proceedings prosecuted diligently and in good faiththe IRS with respect to a Company tax item, the validityInvestor Member shall select Qualified Counsel and control the contest and, or applicability if the credit quality (in the reasonable judgment of the Investor Member) of the Guarantor has not decreased materially from that set forth in its audited financial statements dated as of December 31, 1999, the Managing Member shall provide the Investor Member with security in a form reasonably satisfactory to the PremisesInvestor Member, in an amount equal to the amount due under this Agreement if such determination was not contested, and, whether or not such security is required to be given, the Managing Member shall be liable for the Deficiency Amount that results from the contest, and shall pay that Deficiency Amount and also shall be liable for the Costs of Contest, provided, however, the Managing Member’s maximum liability shall not exceed the maximum liability it would have had were the determination not contested.
F. If the Managing Member timely pays the full amount due under Section 5.4D or 5.4E, as applicable, the Investor Member shall release the security given pursuant to Section 5.4D or 5.4E as applicable, or, if the full amount is not timely paid, the Investor Member may apply or otherwise realize upon any and all security given by the Managing Member to satisfy the amount due under Section 5.4D or 5.4E, as applicable.
G. In the event of any Requirement with which Tenant is obligated to comply pursuant to conflict between the provisions of this LeaseSection 5.4 and the provisions of Section 7.9, and Landlord the provisions of this Section 5.4 shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsapply.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Contests. (a) Tenant may, Sellers will allow the Company and its counsel to participate at its own expense contestin any audits of a consolidated, by appropriate proceedings prosecuted diligently and in good faith, combined or unitary Tax Return of an Affiliated Group of which the validity, Company or applicability any of its Subsidiaries was a member to the Premises, of any Requirement with which Tenant is obligated to comply pursuant extent that such Returns relate to the provisions Company and its Subsidiaries. Sellers will not settle any such audit in a manner which would adversely affect the Company and its Subsidiaries after the Closing Date unless such settlement would be reasonable in the case of this Lease, a Person that owned the Company and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall its Subsidiaries both before and after the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsClosing Date.
(b) Without limiting After the application Closing, Purchasers shall promptly notify Sellers in writing of subsection the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on Purchasers, the Company or any of its Subsidiaries which, if determined adversely to the taxpayer or after the lapse of time would be grounds for indemnification under Section 8.01(a). Such notice shall contain factual information (a)(ito the extent known to Purchasers, the Company or its Subsidiaries) above theretodescribing the asserted Tax liability in reasonable detail and shall include copies of any notice or other document received from any Tax Authority in respect of any such asserted Tax liability. If Purchasers fail to give Sellers prompt notice of an asserted Tax liability as required by this Section 8.05(b), Landlord then (i) if Sellers are precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then Sellers shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, and (ii) if Sellers are not so precluded from contesting but such failure to give prompt notice results in a detriment to Sellers, then any amount which Sellers are otherwise required to pay Purchasers pursuant to Section 8.01(a) with respect to such liability shall be deemed subject reduced by the amount of such detriment.
(c) Sellers may elect to prosecution direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability with respect to which indemnity may be sought under Section 8.01(a) (any such audit, claim for refund or proceeding relating to an asserted Tax liability are referred to herein collectively as a crime "Contest"). If Sellers elect to direct the Contest of an asserted Tax liability, they shall, within thirty (30) calendar days of receipt of the meaning notice of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime asserted Tax liability (but not less than five (5) days before the due date of any kind protest or degree whateverother claim in respect thereof), whether notify Purchasers of their intent to do so and acknowledge in writing, in form and substance satisfactory to Purchasers, their obligation to indemnify Purchasers in full therefor. Purchasers shall cooperate and shall cause the Company, its Subsidiaries or their successors to cooperate in each phase of such Contest. If Sellers choose to direct the Contest, Purchasers shall promptly empower and shall cause the Company, its Subsidiaries and their successors promptly to empower (by service power-of-attorney and such other documentation as may be appropriate) such representatives of a summons Sellers as they may designate to represent Purchasers, the Company, its Subsidiaries or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (their successors in the Contest insofar as the case Contest involves an asserted Tax liability for which Sellers would be liable under Section 8.01(a). If Sellers elect not to direct the Contest and acknowledge in writing, in form and substance satisfactory to Purchasers, their obligation to indemnify Purchasers in full therefor, then (i) Sellers may beparticipate, at their own expense, in the Contest and (ii) is required neither Purchasers, the Company nor any Subsidiary shall settle or compromise any asserted liability over the objection of Sellers. If Sellers elect not to plead direct the Contest and fail to provide such acknowledgment, then (x) Sellers shall have no right to participate in the Contest and (y) Purchasers, the Company or answer theretoits Subsidiaries may pay, compromise or contest such asserted liability in their sole discretion.
Appears in 1 contract
Contests. (a) Tenant maySubject to the rights of insurers under policies of insurance maintained pursuant to Section 13 of the Lease, the Lessee shall have the right, at its expense contestsole cost and expense, to investigate, and the right, in its sole discretion, to defend or contest by appropriate proceedings prosecuted diligently or compromise, any Claim for which indemnification is sought under this Section 12.1, and the Indemnitee shall cooperate, at the Lessee’s expense, with all reasonable requests of the Lessee in good faithconnection therewith (except that no Indemnitee shall be required to provide any information requested by the Lessee that is in violation of any Governmental Rule or any confidentiality restriction applicable to such Indemnitee and, the validityin all cases, shall exclude any tax return or applicability material related to the Premisescalculation of Owner Participant’s Net Economic Return); provided that the Lessee shall not have the right without the consent of the Indemnitee to defend, of contest or compromise any Requirement Claim with which Tenant is obligated respect to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
Indemnitee (i) Landlord if a Significant Lease Default or Lease Event of Default shall not have occurred and be subject to criminal penalty continuing or to prosecution for if after the commencement of such contest rights by the Lessee, a crime nor Significant Lease Default or Lease Event of Default shall have occurred and be continuing and the Premises Indemnitee shall have notified the Lessee that such right has been withdrawn, (ii) if such proceeding involves any material danger of the sale, forfeiture or loss of the Undivided Interest or any part thereof be subject to being condemned thereof, or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit Claim involves the possibility of criminal sanctions or criminal liability or a reasonable possibility of material civil penalty to such non-compliance or contest on condition of Indemnitee, in which event the taking of action or furnishing of security by Landlord, such action Indemnitee shall be taken entitled to control and assume responsibility for the defense of such security shall be furnished Claim at the expense of Tenantthe Lessee, provided that there shall only be one common counsel for all Loan Participants and the Indenture Trustee and one common counsel for the Lessor and the Owner Participant, unless in each case any such Person reasonably determines that an actual or potential conflict of interest exists; and
(iv) Tenant provided further that the Lessee shall acknowledge in writing its obligation to indemnify such Indemnitee as a condition to assuming control of such contest, provided that such acknowledgment of obligation to indemnify will not be binding if the contest is resolved in a manner which indicates that the Lessee would not be liable in the absence of such acknowledgment. The Lessee will provide the Indemnitee with such information not within the control of such Indemnitee, as is in the Lessee’s control or is reasonably available to the Lessee, which such Indemnitee may reasonably request and shall otherwise cooperate with such Indemnitee so as to enable such Indemnitee to investigate or defend any Claim. The Lessee, at its expense, shall keep Landlord advised as to the Indemnitee which is the subject of such proceeding fully apprised of the status of such proceedings.
(b) Without limiting proceeding and shall provide such Indemnitee with all information with respect to such proceeding as such Indemnitee shall reasonably request. In the application event an Indemnitee has assumed control of subsection (a)(i) above theretoany such proceeding, Landlord it, at the Lessee’s expense, shall keep the Lessee fully apprised of the status of such proceeding and shall provide the Lessee with all information, including the receipt of all settlement offers, with respect to such proceeding as the Lessee shall reasonably request. If the Lessee or the insurers under a policy of insurance maintained by the Lessee undertake the defense of an Indemnitee with respect to a Claim, no additional legal fees or expenses of such Indemnitee in connection with the defense of such claim shall be deemed subject to prosecution for a crime within indemnified hereunder unless such fees or expenses were incurred at the meaning request of said subsectionthe Lessee or such insurers; provided that, if Landlord(i) in the opinion of counsel to such Indemnitee an actual or potential conflict of interest exists where it is advisable for such Indemnitee to be represented by separate counsel or (ii) such Indemnitee has been indicted or otherwise charged in a criminal complaint, or, in the opinion of such Indemnitee such indictment or any officercharge is possible, director, partner, member, principal or employee of Landlord individually, is charged in connection with a crime Claim not excluded by Section 12.1(a) and such Indemnitee informs the Lessee that such Indemnitee desires to be represented by separate counsel, the reasonable fees and expenses of such separate counsel shall be borne by the Lessee. Subject to the requirements of any kind or degree whateverpolicy of insurance, whether an Indemnitee may participate at its own expense in any judicial proceeding controlled by service the Lessee pursuant to the preceding provisions and such participation shall not constitute a waiver of the right to receive the indemnification provided in this Section 12.1. Notwithstanding anything to the contrary contained herein, except as otherwise provided in the following sentence, during the continuance of a summons Significant Lease Default or otherwiseLease Event of Default, the Lessee shall not compromise any Claim without the consent of the applicable Indemnitee, such consent not to be unreasonably withheld, unless such charge Claim does not involve the possibility of criminal liability and is withdrawn before Landlord simultaneously discharged. Notwithstanding anything to the contrary contained in this Section 12.1, to the extent the defense or settlement of any non-criminal Claim in respect of which an Indemnitee is entitled to indemnification hereunder is governed by the terms of the Joint Operating Agreement, such officerdefense or settlement shall be governed by the Joint Operating Agreement; provided, director, partner, member, principal that the defense or employee (as settlement of such Claim in accordance with the case may be) is required Joint Operating Agreement shall not limit the Lessee’s obligations to plead or answer theretoindemnify such Claim pursuant to this Section 12.1.
Appears in 1 contract
Contests. (a) Tenant mayAfter the Closing, at Buyer shall promptly notify the Seller Representative in writing of the commencement of any Tax claim on Buyer or its expense contestAffiliates (including the Company after the Closing) which, by appropriate proceedings prosecuted diligently and in good faith, the validity, or applicability if determined adversely to the Premises, taxpayer or after the lapse of time would be grounds for indemnification by the Sellers under Section 6.2. Such notice shall contain factual information (to the extent known to Buyer) describing the asserted Tax liability in reasonable detail and shall include copies of any Requirement with which Tenant is obligated notice or other document received from any Tax Authority in respect of any such asserted Tax liability. The failure to comply pursuant give the Seller Representative prompt written notice of an asserted Tax liability as required by this Section 7.5(a) shall not affect the Buyer Indemnitees’ right to receive indemnification under Section 6.2 except to the provisions of this Lease, and Landlord shall cooperate with Tenant in extent that the Sellers are actually prejudiced by such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsfailure.
(b) Without limiting The Seller Representative may elect to direct, through counsel of its own choosing and at the application Sellers’ expense, any claim involving any asserted Tax Liability (i) with respect to which indemnification may be sought from Sellers under Section 6.2 unless the amount of subsection (a)(i) above theretoLosses asserted, Landlord shall be deemed when taken together with all amounts paid to Buyer Indemnitees for resolved indemnification claims that are subject to prosecution for a crime within the meaning limitation set forth in Section 6.4(b) and the maximum aggregate amount of said subsection, if LandlordLosses alleged in all other unresolved indemnification claims that are subject to the limitation set forth in Section 6.4(b) exceeds the Cap, or (ii) that involves any officerincome Tax Return of the Company attributable to any Pre-Closing Tax Period (any such claim, directora “Contest”). If the Seller Representative elects to direct the Contest of an asserted Tax liability, partner(i) the Seller Representative shall within 30 days of receipt of the notice of asserted Tax liability notify Buyer of the Seller Representative’s intent to do so, memberand Buyer and each of its Affiliates (including the Company after the Closing) shall cooperate, principal at the Sellers’ expense, in each phase of such Contest and (ii) the Seller Representative may not settle or employee compromise any asserted Tax liability over the objection of Landlord individuallyBuyer; provided, that consent to settlement or compromise shall not be unreasonably withheld. If the Seller Representative elects not to so direct the Contest, fails to notify Buyer of its election as herein provided, or contests the Sellers’ indemnification obligation under Section 6.2, Buyer may pay, compromise or contest, at Sellers’ expense, such asserted Tax liability. In such case, however, Buyer may not settle or compromise any asserted Tax liability over the objection of the Seller Representative; provided, that consent to settlement or compromise shall not be unreasonably withheld. If the Seller Representative is charged with prevented from electing to direct a crime claim involving an asserted Tax Liability by reason of the limitation in clause (i) of the first sentence of this Section 7.5(b), and Buyer and Seller Representative reasonably believe that an unfavorable resolution of such claim would result in the aggregate amount of disbursements to Buyer from the Escrow Fund exceeding the amount of disbursements to Buyer from the Escrow Fund that would be made without regard to such claim, taking into account all applicable limitations under Section 6.4(b), then Buyer may not settle or compromise such asserted Tax Liability over the objection of the Seller Representative; provided, that consent to settlement or compromise shall not be unreasonably withheld. In any kind or degree whateverevent, whether each of Buyer and the Seller Representative may participate in a Contest controlled by service the other Party at its own expense; provided, that, in the case of a summons Contest controlled by the Seller Representative, Buyer may only participate if not all of the Tax liabilities at issue are subject to indemnification under Section 6.2 or otherwise, unless such charge is withdrawn before Landlord the resolution of the issues involved in the Contest may reasonably be expected to adversely affect the Tax liability of Buyer or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoCompany for any Tax period beginning after the Closing Date.
Appears in 1 contract
Contests. (a) Tenant mayAfter the Closing, at its expense contestBuyer shall promptly notify Sellers, by appropriate proceedings prosecuted diligently and Sellers shall promptly notify Buyer, in good faithwriting of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim which, the validity, or applicability if determined adversely to the Premisestaxpayer, of any Requirement with which Tenant is obligated to comply pursuant could be grounds for indemnification under, respectively, Section 12.2(a) or 12.2(b). Such notice shall contain factual information (to the provisions extent known) describing the asserted Tax liability. If any party hereto fails to give prompt notice of an asserted Tax liability as required by this LeaseSection 12.4, and Landlord shall cooperate with Tenant in such proceedings, provided that:
then (i) Landlord if the party entitled to notice is precluded by the failure to give prompt notice from contesting the asserted Tax liability in both the administrative and judicial forums, then such party shall not be subject have any obligation to criminal penalty or to prosecution indemnify for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason loss arising out of such contest;
asserted Tax liability, and (ii) Tenant if the party entitled to notice is not so precluded from contesting but such failure to give prompt notice results in a detriment to such party or to such party's ability to fully and properly contest such asserted Tax liability, then any amount which such party is otherwise required to pay pursuant to Section 12.2(a) or 12.2(b), as applicable, with respect to any such liability shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer be reduced by reason the amount of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsdetriment.
(b) Without limiting Sellers may elect to direct, through counsel of their own choosing and at their own expense, any audit, claim for refund and administrative or judicial proceeding involving any asserted liability (any such audit, claim for refund or proceeding relating to an asserted Tax liability is referred to herein as a "Contest") with respect to which indemnity may be sought under Section 12.2(a); PROVIDED, HOWEVER, that Sellers may not settle, compromise, or otherwise dispose of such Contest without the application prior written consent of subsection Buyer, which consent shall not be unreasonably withheld or delayed. If Sellers elect to direct a Contest, they shall within 30 calendar days of receipt of the notice of asserted Tax liability provided for in Section 12.4
(a)(ia) above theretonotify Buyer of their intent to do so, Landlord and Buyer shall cooperate and shall cause each Acquired Company or its successor to cooperate, at the expense of Sellers, in each phase of such Contest. If Sellers elect not to direct the Contest or fail to notify Buyer of their election as herein provided, Buyer or the Acquired Companies, may, in good faith, pay, compromise or contest such asserted liability, subject to Sellers' consent, which shall not be withheld or delayed unreasonably; provided, however, that any reasonable expense incurred by Buyer in connection with such assumption of the direction of the Contest shall be deemed included as Damages subject to prosecution Section 12.2(a) hereof. If Sellers direct such Contest as hereinabove provided, Buyer and each Acquired Company (and any successor thereto) shall empower (by power of attorney or such other documentation as may be appropriate) such representatives of Sellers as the latter may designate to handle such Contest.
(c) Buyer may at its election and solely at its expense, participate in, but not control, any Contest with respect to which indemnity may be sought under Section 12.2(b). Sellers shall be required to consult with Buyer only on those aspects of any such Contest with respect to which Buyer would be liable for a crime within indemnification under Section 12.2(b). Sellers shall regularly inform Buyer of the meaning status of said subsectionany such Contest and shall provide Buyer with any documents, if Landlordcorrespondence, or other material or information as Buyer may reasonably request relating thereto. Sellers shall obtain the consent of Buyer, which shall not be unreasonably withheld or delayed, prior to taking any officer, director, partner, member, principal or employee of Landlord individually, is charged significant actions on any matter in such Contest with a crime of any kind or degree whatever, whether by service respect to which Buyer could be liable for indemnification. Such significant actions include but are not limited to the filing of a summons motion or otherwiseappeal, unless such charge is withdrawn before Landlord as well as a settlement, compromise, or such officer, director, partner, member, principal or employee (as other disposition of the case may be) is required to plead or answer theretomatter. Sellers shall at all times act in good faith in satisfying their obligations under this Section 12.4(c).
Appears in 1 contract
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, the validity, or applicability Buyer agrees to give written notice to the Premises, Sellers’ Representative of the receipt of any Requirement with written notice by the Company, any Company Subsidiary, Buyer or any of Buyer’s Affiliates which Tenant is obligated involves the assertion of any claim for which an indemnity will be sought by Buyer pursuant to this ARTICLE VII (a “Tax Claim”); provided, that failure to comply pursuant with this provision shall not affect Buyer’s right to indemnification hereunder except and only to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty extent that Sellers forfeit material rights or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise defenses by reason of such contest;
(ii) Tenant shall defendfailure. The Sellers’ Representative may, at the Sellers’ own expense, participate in and assume the defense of any Tax Claim; provided, however, that the Sellers’ Representative acknowledges in writing the Sellers’ responsibility to indemnify and hold harmless Landlord from the Buyer Indemnitees with respect to all Taxes at issue in such Tax Claim. If the Sellers’ Representative assumes such defense, the Sellers’ Representative shall control all proceedings taken in connection with such Tax Claim (including selection of counsel) and against may, in its reasonable discretion, pursue or forego any and all actionsadministrative appeals, proceedings, claimshearings and conferences with any Taxing authority with respect thereto, deficienciesand may, judgmentsin its reasonable discretion, suitseither pay the Tax claimed and s▇▇ for refund where applicable law permits such refund suits or contest the tax claim in any permissible manner; provided, losseshowever, obligationsthat (i) Buyer shall have the right to participate in any such Tax Claim and the Sellers’ Representative shall provide Buyer with copies of all written communications relating to the Tax Claim, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursementsii) which Landlord the Sellers’ Representative shall suffer by reason keep Buyer informed regarding the progress of such non-compliance Tax Claim and consult with Buyer with respect to any issue that could have an adverse effect on Buyer, the Company or contest;
any Company Subsidiary and (iii) such non-compliance or contest the Sellers’ Representative shall not constitute settle or result otherwise resolve any Tax Claim (or any issue raised in any violation Tax Claim) without the prior written consent of any superior lease Buyer (which consent shall not be unreasonably withheld or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsdelayed).
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing Date, the validityPurchaser shall promptly notify the Seller in writing of the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim on the Purchaser or the Company which, or applicability if determined adversely to the Premisestaxpayer or after the lapse of time, of any Requirement with which Tenant is obligated to comply pursuant to would be grounds for indemnification by the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
Seller under Section 7.01 (i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedings"INDEMNIFICATION ITEM").
(b) Without limiting In the application case of subsection a Tax audit or administrative or judicial proceeding (a)(ior part thereof) ("PROCEEDING") that relates solely to an Indemnification Item for which the Seller is exclusively liable under Section 7.01 (a "CONTEST") , the Seller shall have the sole right, at its expense, to control the conduct of such Contest that relates solely to the Indemnification Item; PROVIDED, HOWEVER, that the Seller shall
(i) obtain the Purchaser's written consent to any advisors (including any law or accounting firm) retained by the Seller with respect to any Contest regarding any Indemnification Item, which consent shall not be unreasonably withheld or delayed, and which consent is deemed to have been given for KPMG, LLP and its affiliates and any successor firms, and Shearman & Sterling and any successor firms,
(ii) keep the Purchaser informed of the progress of any Contest,
(iii) allow the Purchaser to review and comment on all materials to be submitted to any Governmental Authority in connection with any Contest,
(iv) provide the Purchaser with reasonable notice in advance of all meetings, telephone conversations and other communications ("COMMUNICATIONS") with any 40 Governmental Authority in connection with any Contest, and allow Purchaser's representatives to participate in any Communications, and
(v) not settle or compromise (or offer to settle or compromise) any Contest without the written consent of the Purchaser, which consent shall not be unreasonably withheld or delayed. However, for any Contest that does not impact Taxes of the Purchaser, the LLC or their respective successors or Affiliates for periods after the Closing, the Purchaser will (a) not have any of the rights listed in subsections (i) through (v) above theretoand (b) be deemed to have consented to any settlement or compromise proposal by the Seller. The Purchaser and the Seller agree to cooperate, Landlord and the Purchaser agrees to cause the Company to cooperate, in the defense against or compromise of any claim in any audit or proceeding, including, by executing appropriate powers of attorney empowering representatives of the Seller. Any expenses or fees incurred by the Purchaser in connection with the activities described in subsections (i) through (v) above shall not be payable or indemnified by Seller.
(c) In the case of a Proceeding that relates to an issue where both the Seller and the Purchaser would reasonably be expected to have liability and the Purchaser's reasonably anticipated liability with respect to such issue exceeds the Seller's reasonably anticipated liability with respect to such issue, the Purchaser shall have the sole right, at its expense, to control the conduct of such Proceeding; PROVIDED, HOWEVER, that Seller shall have the same rights with respect to such Proceeding as are granted to the Purchaser with respect to a Contest pursuant to Section 7.03(b)(i) through (v) (except that the deemed consent to representation by Shearman & Sterling (and successors) in Section 7.03(b)(i) shall be replaced by deemed subject consent to prosecution for a crime within representation by Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and affiliates (and successors)).
(d) In the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service case of a summons or otherwiseProceeding that relates to an issue where both the Seller and the Purchaser would reasonably be expected to have liability with respect to that issue and the Seller's reasonably anticipated liability with respect to such issue exceeds the Purchaser's reasonably anticipated liability with respect to such issue, unless the Seller shall have the sole right, at its expense, to control the conduct of such charge is withdrawn before Landlord or Proceeding; PROVIDED, HOWEVER, that Purchaser shall have the same rights with respect to such officer, director, partner, member, principal or employee Proceeding as are granted to the Purchaser with respect to a Contest pursuant to Section 7.03(b)(i) through (as the case may be) is required to plead or answer theretov).
Appears in 1 contract
Sources: Purchase Agreement (Credit Suisse First Boston Usa Inc)
Contests. For purposes of this Agreement, a “Contest” is any audit, court proceeding or other dispute with respect to any tax matter that affects the Hotel Owner. Unless Purchaser has previously received written notice from Seller of the existence of such Contest, Purchaser shall give written notice to Seller of the existence of any Contest relating to a Tax matter arising in a period ending on or before the Closing Date within ten (a10) Tenant maydays from the receipt by Purchaser of any written notice of such Contest, but no failure to give such notice shall relieve the Seller of any liability hereunder, except that any additional Taxes owing on account of such failure shall be payable by Purchaser. Unless Seller has previously received written notice from Purchaser of the existence of such Contest, Seller shall give written notice to Purchaser of the existence of any Contest for which Purchaser has responsibility within ten (10) days from the receipt by Seller of any written notice of such Contest. Purchaser, on the one hand, and Seller, on the other, agree, in each case at no cost to the other party, to cooperate with the other and the other’s representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall include, but not be limited to, making available to the other party, during normal business hours, all books, records, Tax Returns, documents, files, other information (including working papers and schedules), officers or employees (without substantial interruption of employment) or other relevant information necessary or useful in connection with any Contest requiring any such books, records and files (excluding items (x) which are protected by attorney-client privilege or (z) to the extent the disclosure thereof would violate confidentiality obligations of Seller, Purchaser or any of their respective Affiliates). If Seller could be liable for any Tax resulting from such Contest, Seller shall, at its election, have the right to represent the Hotel Owner’s interests in any Contest relating to a Tax matter arising in a period ending on or before the Closing Date, to employ counsel of its choice at Seller’s expense contestand to control the conduct of such Contest, by appropriate proceedings prosecuted diligently including settlement or other disposition thereof; provided, however, that Purchaser shall have the right to consult with the Seller regarding any such Contest that may affect the Hotel Owner for any periods ending after the Closing Date at Purchaser’s own expense; and in good faithprovided, the validityfurther, that any settlement or applicability to the Premises, other disposition of any Requirement such Contest, may only be with the consent of Purchaser, which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall consent will not be subject to criminal penalty unreasonably withheld, conditioned or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsdelayed.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Sunstone Hotel Investors, Inc.)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing, the validity, Purchaser shall promptly notify the Seller in writing of the proposed assessment or applicability the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim with respect to the PremisesTax of the Company which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification by the Seller under Section 7.01. Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates or the Company) describing the asserted Tax liability in reasonable detail and shall include copies of any Requirement with which Tenant is obligated notice or other document received from any Taxing Authority in respect of any such asserted Tax liability. If the Purchaser fails to comply pursuant give the Seller prompt notice of an asserted Tax liability as required by this Section 7.03, then the Seller shall not have any obligation to indemnify for any loss arising out of such asserted Tax liability, but only to the provisions of this Lease, and Landlord shall cooperate with Tenant extent that failure to give such notice results in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as detriment to the status of such proceedingsSeller.
(b) Without limiting In the application case of subsection a Tax audit or administrative or judicial proceeding (a)(ia “Contest”) above theretothat relates to Pre-Closing Periods (other than Straddle Periods), Landlord the Seller shall have the sole right, at its expense, to control the conduct of such Contest; provided, that (i) the Seller shall keep the Purchaser reasonably informed regarding the progress and substantive aspects of such Contest and (ii) if the settlement or compromise of such Contest would be expected to materially increase the Taxes of the Purchaser or any of its Affiliates (including the Company) in a Post-Closing Period, (a) reasonable comments of the Purchaser or its advisers received by the Seller or its advisers with reasonable advance notice shall be deemed subject incorporated in the documents to prosecution for be submitted in relation to the Contest and (b) the Seller shall not settle or compromise any asserted liability without the prior written consent of the Purchaser (not to be unreasonably withheld, conditioned or delayed).
(c) With respect to Straddle Periods (other than a crime Contest described in Section 7.03(d)), the Seller may elect to direct and control, through counsel of its own choosing, any Contest involving any asserted Tax liability with respect to which indemnity may be sought from the Seller pursuant to Section 7.01. If the Seller elects to direct a Contest, the Seller shall within ninety (90) days of receipt of the meaning notice of said subsectionasserted Tax liability notify the Purchaser of its intent to do so, if Landlordand the Purchaser shall cooperate and shall cause the Company to fully cooperate, at the Seller’s expense, in each phase of such Contest. If the Seller elects not to direct the Contest, the Purchaser or the Company may assume control of such Contest (at the Purchaser’s expense), and the Purchaser shall provide the Seller a timely and reasonably detailed summary of each phase of such Contest. However, in such case, none of the Purchaser or the Company may settle or compromise any asserted liability without prior written consent of the Seller; provided, however, that consent to settlement or compromise shall not be unreasonably withheld. In any event, the Seller may participate, at its own expense, in the Contest.
(d) Notwithstanding anything to the contrary in this Agreement, the Seller shall have the exclusive right to control in all respects, and neither the Purchaser nor any of its Affiliates shall be entitled to participate in, any Contest with respect to (i) any Tax Return of the Seller or any officerof its Subsidiaries (other than the Company) and (ii) any Tax Return of a Seller Group.
(e) The Purchaser and the Seller agree to cooperate, directorand the Purchaser agrees to cause the Company to cooperate, partner, member, principal in the defense against or employee of Landlord individually, is charged with a crime compromise of any kind or degree whateverclaim in any Contest.
(f) Notwithstanding anything to the contrary in this Agreement, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required this Section 7.03 shall control with respect to plead or answer theretoany Contest.
Appears in 1 contract
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and If any claim for Tax with respect to OrbNav's Membership Interest is asserted in good faith, a Contest (as defined below) against any Tax Indemnitee that would result in the validity, or applicability to the Premises, indemnification of any Requirement with which Tenant is obligated to comply such Tax Indemnitee by Orbital or OrbNav pursuant to this Section 8 then the following provisions of this LeaseSection 8.4(a) will apply to the handling of such claim. For purposes of this Agreement, and Landlord shall cooperate "Contest" means any audit, court proceeding or other dispute with Tenant respect to any Tax matter that affects OrbNav's Membership Interest in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises Company or any part thereof be subject to being condemned or vacated, by reason other Tax Indemnitee. Unless the Purchaser has previously received written notice from Orbital and OrbNav of non-compliance or otherwise by reason the existence of such contest;
(ii) Tenant Contest, the Purchaser shall defend, indemnify give written notice to Orbital and hold harmless Landlord from and against OrbNav of the existence of any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer Contest relating to a Tax matter that is or may be Orbital's or OrbNav's responsibility under this Section 8 as soon as practicable after the receipt by reason the Purchaser of any written notice of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result Contest, but in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as no event later than 15 days prior to the status of such proceedings.
(b) Without limiting time that a written response to the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, written notice is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwiserequired, unless such charge written notice is withdrawn before Landlord received and a written response is due in less than 15 days, in which case the Purchaser shall give written notice to Orbital and OrbNav as soon as practicable. If the Purchaser fails to comply with the foregoing sentence, Orbital or such officerOrbNav, director, partner, member, principal or employee (as the case may be) , shall not be liable to the Purchaser to the extent that Orbital's or OrbNav's position is actually prejudiced as a result thereof. Orbital and OrbNav shall, at their election, have the right to represent the interests of the Company in any Contest relating to a Tax matter for which Orbital or OrbNav may be required to plead make a Tax Indemnity Payment, to employ counsel of Orbital's and OrbNav's choice at the expense of Orbital and OrbNav and to control the conduct of such Contest, including settlement or answer theretoother disposition thereof, provided, however, that Orbital and OrbNav will keep the Purchaser informed of the progress and disposition of the Contest and no settlement or compromise of issues will be made without the Purchaser's written consent, which consent shall not be unreasonably withheld and provided, further, that to the extent such Contest could adversely affect the Purchaser's Tax Liability (after taking into account any required Tax Indemnity Payment), the Purchaser will have the right to control the conduct of the Contest at its expense, and in which case no settlement or compromise of issues will be made without Orbital's and OrbNav's written consent, which consent shall not be unreasonably withheld. The Purchaser shall handle any Tax Claim relating to any Tax period of the Company included in a Pre-Closing Tax Period which Orbital and OrbNav elect in writing not to control, and the Purchaser shall be entitled to defend, compromise or settle such Tax Claim in its sole discretion.
Appears in 1 contract
Contests. (a) Tenant mayProvided that Motorola does not dispute its obligation to indemnify the Tax Indemnitees for the asserted liability, Motorola shall, at its expense contestelection, by appropriate proceedings prosecuted diligently and in good faithhave the right to represent the Company's, the validity, or applicability to the Premises, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises SCI LLC's or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by LandlordForeign Entities', such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedings.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be, interests in the portion of any Contest (as defined below) relating to any Tax issue for which Motorola is required responsible to plead indemnify a Tax Indemnitee pursuant to this Agreement, employ counsel of its choice at its expense and control the conduct of such Contest. For any such Contest the Tax Indemnitees and Motorola agree that the following provisions of this SECTION 10.6 will apply in handling any such claim. For purposes of this Agreement, a "Contest" is any audit, court proceeding or answer theretoother dispute with respect to any Tax matter that affects the Company, SCI LLC or any of the Foreign Entities, as the case may be. Unless the Company has previously received written notice from Motorola of the existence of such Contest, the Company shall give written notice to Motorola of the existence of any Contest relating to a Tax matter that is or may be Motorola's responsibility under this ARTICLE X within ten days from the receipt by the Company of any written notice of such Contest, but no failure to give such notice shall relieve Motorola of any liability hereunder except to the extent, if any, that the rights of Motorola with respect to such claim are actually prejudiced. Unless Motorola has previously received written notice from the Company of the existence of such Contest, Motorola shall give written notice to the Company of the existence of any Contest within ten days from the receipt by Motorola of any written notice of such Contest. The Company, on the one hand, and Motorola, on the other, agree, in each case at no cost to the other party, to cooperate with the other and the other's representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall include, but not be limited to, making available to the other party, during normal business hours, all books, records, returns, documents, files, other information (including, without limitation working papers and schedules), officers or employees (without substantial interruption of employment) or other relevant information necessary or useful in connection with any Contest requiring any such books, records and files. Motorola shall consult with the Company regarding any such Contest and shall consider suggestions proposed by the Company (subject to Motorola's right to control the Contest of such issue), inform the Company in a timely manner of any material events concerning any such Contest, and shall allow the Company to monitor (at its own expense) any proceedings with respect to such Contest. If the Company is requested by Motorola to pay or, with respect to any Contest relating to any taxable period ending after the Closing Date which also involves any issue for which Motorola is not responsible to indemnify a Tax Indemnitee, the Company, in its sole discretion, determines to pay (or have an Affiliate pay), the Tax claimed and ▇▇▇ for a refund, Motorola shall advance to the Company, or its Affiliate, as the case may be, on an interest-free basis, the amount of such claim (in which case Motorola shall be entitled to any refund received with respect to such Tax). Motorola shall have the right to settle or dispose of the portion of any Contest relating to a Tax issue for which Motorola is responsible to indemnify a Tax Indemnitee pursuant to this Agreement and in which it represents the Company pursuant to this SECTION 10.6 provided, however, that no settlement or other disposition of any claim for Tax which would adversely affect any Tax Indemnitee in any taxable period in any manner or to any extent (including, but not limited to, the imposition of income tax deficiencies, the reduction of asset basis and the reduction of loss or credit carryovers) shall be agreed to without the Company's prior written consent, which consent shall not be unreasonably withheld if Motorola agrees to fully reimburse the Tax Indemnitee for any such adverse effect.
Appears in 1 contract
Sources: Agreement and Plan of Recapitalization and Merger (Semiconductor Components Industries LLC)
Contests. (a) Tenant mayIf any Taxing Authority asserts an Income Tax Claim, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, then the validity, or applicability party hereto first receiving notice of such Income Tax Claim promptly shall provide written notice thereof to the Premisesother party or parties hereto; provided, however, that the failure of such party to give such prompt notice shall not relieve the other party of any Requirement with which Tenant is obligated to comply pursuant of its obligations under this Article VIII, except to the provisions extent that the other party is actually prejudiced thereby. Such notice shall specify in reasonable detail the basis for such Income Tax Claim and shall include a copy of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defend, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation relevant portion of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of correspondence received from the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsTaxing Authority.
(b) Without limiting Sellers shall, upon written notice to Buyer, have the application right to control, at their own expense, any audit, examination, contest, litigation or other proceeding by or against any Taxing Authority (a “Tax Proceeding”) in respect of subsection the Company or any Company Subsidiary for any taxable period that ends on or before the Closing Date; provided, however, that if such action could have an adverse impact on Buyer, any Affiliate of Buyer or the Company or any Company Subsidiary, (a)(ii) above theretoSellers shall provide Buyer with a timely and reasonably detailed account of each phase of such Tax Proceeding, Landlord (ii) Sellers shall consult with Buyer before taking any significant action in connection with such Tax Proceeding, (iii) Sellers shall consult with Buyer and offer Buyer an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, (iv) Sellers shall defend such Tax Proceeding diligently and in good faith as if they were the only party in interest in connection with such Tax Proceeding, (v) Buyer (or an Affiliate of Buyer) shall be deemed subject entitled to prosecution participate, at its own expense, in such Tax Proceeding and receive copies of any written materials relating to such Tax Proceeding received from the relevant Taxing Authority, and (vi) Sellers shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed.
(c) In the case of a Tax Proceeding for a crime within Straddle Period of the meaning Company or any Company Subsidiary, the Controlling Party shall have the right to control, at its own expense, such Tax Proceeding; provided, however, that (i) the Controlling Party shall provide the Non-Controlling Party with a timely and reasonably detailed account of said subsectioneach phase of such Tax Proceeding, (ii) the Controlling Party shall consult with the Non-Controlling Party before taking any significant action in connection with such Tax Proceeding, (iii) the Controlling Party shall consult with the Non-Controlling Party and offer the Non-Controlling Party an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, (iv) the Controlling Party shall defend such Tax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Tax Proceeding, (v) the Non-Controlling Party shall be entitled to participate in such Tax Proceeding, at its own expense, if Landlord, such Tax Proceeding could have an adverse impact on the Non-Controlling Party or any officerof its Affiliates and (vi) the Controlling Party shall not settle, directorcompromise or abandon any such Tax Proceeding without obtaining the prior written consent, partnerwhich consent shall not be unreasonably withheld, memberconditioned or delayed, principal of the Non-Controlling Party if such settlement, compromise or employee abandonment could have an adverse impact on the Non-Controlling Party or any of Landlord individually, its Affiliates. “Controlling Party” means whichever of Sellers or Buyer is charged reasonably expected to bear the greater Tax liability in connection with a crime Straddle Period Tax Proceeding, and “Non-Controlling Party” means whichever of any kind Sellers or degree whatever, whether by service of a summons or otherwise, unless Buyer is not the Controlling Party with respect to such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretoStraddle Period Tax Proceeding.
Appears in 1 contract
Sources: Securities Purchase Agreement (Friedman Billings Ramsey Group Inc)
Contests. (a) Tenant mayThe Signing Stockholders shall have right, but not the obligation, at its expense the Signing Stockholders' expense, to control any audit or examination by any Taxing authority of any Sellers' Tax Return and to contest, by appropriate proceedings prosecuted diligently resolve and in good faithdefend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment to Taxes relating to any of the Sellers' Tax Returns, to the extent such matter gives rise to, or reasonably could be expected to give rise to, an indemnification obligation on the part of the Signing Stockholders under Section 8.2 or Section 8.3 (collectively, the validity"Sellers' Tax Matters"); provided, however, that the Signing Stockholders shall not settle or prosecute any Tax claim in a manner that would have an adverse effect on the Company, Haemonetics, or applicability to their affiliates without the Premisesprior written consent of Haemonetics, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord consent shall not be subject unreasonably withheld or delayed. Haemonetics and its duly appointed representatives shall have the right to criminal penalty participate, at Haemonetics' expense, in the defense of any such Sellers' Tax Matters if Haemonetics or the Company may be adversely affected thereby. If requested by the Signing Stockholders, the Company shall execute suitable powers of attorney in favor of the Signing Stockholders or their representatives permitting them to prosecution for a crime represent the Company with respect to such Sellers' Tax Matters. If the Signing Stockholders elect not to control, contest, resolve or defend as aforesaid, Haemonetics and the Company shall be entitled to do so, provided, however, that neither Haemonetics nor the Company shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance settle or otherwise by reason resolve any Sellers' Tax Matters without the prior written consent of such contest;
(ii) Tenant shall defendthe Signing Stockholders, indemnify and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest consent shall not constitute be unreasonably withheld or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsdelayed.
(b) Without limiting the application of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.
Appears in 1 contract
Sources: Merger Agreement (Haemonetics Corp)
Contests. (a) Tenant may, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithAfter the Closing Date, the validityPurchaser shall promptly notify the Seller upon learning of the commencement of any Tax audit or administrative or judicial proceeding that, or applicability if determined adversely to the Premisestaxpayer or after the lapse of time, would be grounds for indemnification under Section 7.01(a). Such notice shall be in writing and shall contain factual information (to the extent known to the Purchaser) describing the asserted Tax liability in reasonable detail and shall include copies of any Requirement with which Tenant notice or other document received from any taxing authority in respect of any such asserted Tax liability. If the Seller is obligated not given prompt notice of an asserted Tax liability as required by this Section 7.03, Seller shall have no obligation to comply pursuant indemnify the Purchaser or any Purchaser Tax Group Member of any of the Subsidiaries under Section 7.01(a) for such asserted Tax liability to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to prosecution for extent the Seller is precluded solely as a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason result of such contest;
(ii) Tenant shall defend, indemnify failure to give prompt notice from contesting in a timely manner the asserted Tax liability in both the administrative and hold harmless Landlord from and against any and all actions, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of the taking of action or furnishing of security by Landlord, such action shall be taken and such security shall be furnished at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsjudicial forums.
(b) Without limiting the application The Seller may elect to direct, through counsel of subsection (a)(i) above thereto, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime its own choosing and at its own expense that portion of any kind audit, claim for refund and administrative or degree whateverjudicial proceeding involving any asserted liability with respect to which indemnity may be sought by any of the Purchaser Indemnities under Section 7.01(a) (any such audit, whether claim for refund or proceeding relating to an asserted Tax liability is referred to herein as a "CONTEST"). However, the Purchaser may, at its own expense, continue to participate in the Contest. If the Seller elects to direct a Contest, then the Seller shall, within 20 calendar days of receipt of the Purchaser's notice of asserted Tax liability, notify the Purchaser of its intent to do so, and the Purchaser shall cooperate, at the Seller's expense, in each phase of such Contest. If the Seller does not elect to direct the Contest or fails to notify the Purchaser of its election as herein provided, the Purchaser may pay, compromise or contest such asserted Tax liability; provided, however, that the Purchaser may not settle or compromise any asserted Tax liability over the objection of the Seller (which consent to settlement or compromise shall not be unreasonably withheld). In any event, the Seller may participate, at its own expense, in any Contest. If the Seller chooses to direct the Contest, the Purchaser shall promptly empower (by service power of a summons attorney and such other documentation as may be necessary and appropriate) the designated representatives of the Seller to represent the Purchaser or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (its successor in the Contest insofar as the case Contest involves an asserted Tax liability for which the Seller would be liable under Section 7.01; provided, that Seller may benot without the prior written consent of the Purchaser (which consent shall not be unreasonably withheld) is required to plead settle or answer thereto.compromise any asserted Tax liability in a Contest or portion thereof which the Seller controls if doing so would (i) increase the indemnification obligation of
Appears in 1 contract