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with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee (as the case may be) is required to plead or answer thereto.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. 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. 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 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. Parent shall give written notice to Equityholder Representative of the receipt of any written notice by the Company, its Subsidiaries, 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 for Pre-Closing Taxes (a) Tenant maya “Tax Claim”); provided, at its expense contestthat failure to comply with this provision shall not affect Parent’s right to indemnification hereunder except to the extent that the Equityholders are actually materially prejudiced by such failure (but only to the extent of such prejudice). The Equityholder Representative shall, by appropriate proceedings prosecuted diligently and in good faith, and at its sole cost and expense, control the validity, contest or applicability to the Premises, resolution of any Requirement with Tax Claim that relates solely to Pre-Closing Taxes; provided, that Parent or Surviving Corporation shall be entitled to jointly participate in the defense of such claim and to employ counsel of their choice for such purpose, the fees and expenses of which Tenant is obligated separate counsel shall be borne solely by Parent and/or Surviving Corporation. On behalf of Surviving Corporation, Parent shall, diligently and in good faith, control the contest or resolution of any other Tax Claim, including any Tax Claim relating to comply pursuant a Straddle Period; provided, that Equityholder Representative on behalf of the Equityholders shall be entitled to jointly participate in the provisions defense of such claim and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Equityholders. For purposes of this LeaseSection 6.02, and Landlord shall cooperate with Tenant the right to jointly participate in such proceedings, provided that:
the defense of a Tax Claim includes (i) Landlord shall not the right to receive, concurrently with or promptly following Parent’s receipt, notice and copies of all correspondence received from the Governmental Authority and otherwise to be subject to criminal penalty or to prosecution for a crime nor shall promptly and reasonably apprised of the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason initiation and status of such contest;
Tax Claim 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 the right to receive copies and reasonable legal fees opportunity to review 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 comment on any violation written materials to be provided to the Governmental Authority. In the event of any superior lease conflict or superior mortgageinconsistency between this Section 6.02 and Section 9.05, or if such superior lease and/or superior mortgage this Section 6.02 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 control with respect to the status of such proceedingsall matters relating to 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 2 contracts
Sources: Agreement and Plan of Merger (OncoCyte Corp), Merger Agreement (OncoCyte Corp)
Contests. (a) Tenant mayFor purposes of this Agreement, a “Contest” is any audit or court proceeding with respect to any Tax matter that affects any Acquired Company. Buyer shall, at its election, have the right to represent an Acquired Company’s interests in any Contest relating to a Tax matter arising in a period ending on or before the Measurement Date, to employ counsel of its choice at its expense contestand to control the conduct of such Contest, including settlement or other disposition thereof; provided, however, that Seller shall (i) control Contests relating to any consolidated or combined Tax Returns filed by appropriate proceedings prosecuted diligently it with respect to which any Acquired Company is a member and (ii) have the right to participate in good faithany other contest relating to a Tax matter that may result in liability to Seller under Section 9.4 and consult with Buyer regarding any such Contest and no settlement or other disposition of any issue affecting any Acquired Company in such a Contest shall be made without prior approval of Seller (or Buyer with respect to a Contest which Seller controls), which approval may not be unreasonably withheld. Buyer shall give written notice to Seller of the validityexistence of any Contest relating to a Tax matter that may result in liability to Seller under Section 9.4 (and Seller shall give written notice to Buyer in the case of a Contest in which Seller controls) within ten (10) Business Days from the receipt of any written notice of such Contest, but no failure to give such notice shall relieve Seller or applicability to the PremisesBuyer, as applicable, of any Requirement with which Tenant is obligated to comply pursuant Liability hereunder (except to the provisions of this Lease, and Landlord shall extent that such failure causes a detriment to the other Party). Each Party agrees to cooperate with Tenant each other and their representatives in a prompt and timely manner in connection with any such proceedingsContest. Such cooperation shall include making available to the other Party, 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 vacatedduring normal business hours, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defendall books, indemnify and hold harmless Landlord from and against any and all actionsrecords, proceedingsTax Returns, claimsdocuments, deficienciesfiles, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses other information (including court costs working papers and reasonable legal fees 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 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 proceedingsfiles.
(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 (Vitro Sa De Cv), Stock Purchase Agreement (Vitro Sa De Cv)
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. If a written claim is made by any taxing authority against Lessor for any Tax with respect to which Lessee is required to indemnify Lessor hereunder, Lessor shall promptly give Lessee written notice of such claim. Lessor's failure to provide such notice to Lessee shall not diminish Lessee's obligations or Lessor's rights hereunder except to the extent that such failure precludes Lessee's and Lessor's ability to contest such tax claim. If Lessee promptly (aand, in any event, within 15 days of receipt of notice from Lessor) Tenant mayrequests Lessor to do so, Lessor shall, at its expense contestLessee's expense, contest (or, at Lessor's option, require Lessee to contest in Lessee's name, if permitted by appropriate proceedings prosecuted diligently and in good faith, law) the validity, applicability or applicability to the Premises, amount of any Requirement with such Tax. Lessor shall determine in its sole discretion the forum in which Tenant is obligated to comply pursuant to the provisions contest of this Lease, such Tax shall be pursued and Landlord whether such contest shall cooperate with Tenant in such proceedings, provided that:
be by (i) Landlord resisting payment thereof, if lawful and practicable, (ii) not paying the same except under protest, if protest is necessary or advisable and proper, or (iii) if the payment is made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings. If Lessor determines that such contest shall be by the manner described in either of clauses (ii) or (iii) above, Lessee shall advance sufficient funds on an after-tax, interest-free basis to Lessor to make the payment required. If Lessor contests the validity, applicability or amount of any Tax hereunder, Lessee shall have the right to review and advise Lessor as to all material written submissions to any governmental or other authority relating to the Tax for which indemnification is sought. Lessor shall consult in good faith with Lessee and its counsel regarding all other material aspects of any such contest. Lessee shall have the right to attend governmental or judicial conferences concerning any such tax claim only if such Tax is the only matter that affects Lessor which is pending before the governmental or judicial body. Notwithstanding the foregoing, Lessor shall only be required to contest (and Lessee shall only be permitted to contest) any Tax if (A) independent tax counsel selected and compensated by Lessee is of the opinion that there is a reasonable basis for contesting the matter in question; (B) Lessee has acknowledged in writing its liability to indemnify Lessor with respect to the Tax in question; (C) Lessee shall pay (and shall acknowledge in writing Lessee's liability to pay) Lessor on demand for all reasonable costs and expenses incurred by Lessor in connection with contesting such claim (including, without limitation, all costs, expenses, losses, reasonable legal and accounting fees (including fees associated with Lessor's consultation with independent tax counsel as described herein), disbursements, penalties, interest and additions to tax); (D) the issue shall not be subject the same as an issue previously contested hereunder and decided adversely unless independent tax counsel selected and compensated by Lessee is of the opinion that the applicable law has changed, (E) the amount of Tax at issue exceeds $10,000, and (F) if an Event of Default has occurred and is continuing under this Agreement, Lessee has posted a bond or other security in form and substance satisfactory 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 Lessor in its sole 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 absolute discretion. Lessor shall not constitute be required to appeal any judicial decision unless it receives an opinion of independent counsel selected and compensated by Lessee to the effect that it is more likely than not that such appeal would be successful. Under no circumstances shall Lessor be required to appeal a decision to or result request a hearing by the United States Supreme Court. Nothing in any violation this Section 8.5 shall require Lessor to contest, or permit Lessee to contest, a claim with respect to the imposition of any superior lease or superior mortgage, or Tax if Lessor shall waive its right to indemnification under Section 8.1 hereof 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 proceedingsclaim.
(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: Aircraft Lease Agreement (Republic Airways Holdings Inc), Aircraft Lease Agreement (Republic Airways Holdings 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. Buyer shall promptly notify Equityholder following receipt of any notice of audit or other proceeding relating to any Tax Return that includes a Pre-Closing Tax Period (athe “Prior Period Returns”). The Equityholder shall control any and all audits or other proceedings and litigation (a “Tax Contest”) Tenant mayrelating to any Prior Period Return, at its expense contestincluding the filing of an amended Tax Return, by appropriate proceedings prosecuted diligently and in good faithother than Prior Period Returns relating to any Straddle Period. With respect to any Tax Contest that it controls, 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:
Equityholder (i) Landlord shall give prompt notice to Buyer of any Tax adjustment proposed in writing pursuant to such Tax Contest, (ii) shall afford Buyer the opportunity to participate in the conduct of such Tax Contest, including without limitation the right to participate in conferences with Tax Authorities and submit pertinent material in support of Buyer’s position, and (iii) shall not settle such Tax Contest without Buyer’s consent, which shall not be subject to criminal penalty unreasonably withheld, conditioned or to prosecution for a crime nor delayed. Buyer and Equityholder shall the Premises or any part thereof be subject to being condemned or vacated, by reason have joint control 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 actionsTax Contests relating to a Tax Return for a Straddle Period, proceedingsincluding the filing of an amended Tax Return for such Straddle Period; provided that neither Equityholder nor Buyer shall settle or compromise any Tax Contest relating to a Tax Return for a Straddle Period without the consent of the other Party, 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, 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; 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: Stock Purchase Agreement (Apollo Medical 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 shall not be subject to criminal penalty or to prosecution for a crime nor shall If the Premises Purchaser, the Company or any part thereof be subject Subsidiary receives actual knowledge of a claim, demand, assessment (including a notice of proposed assessment) or other assertion with respect to being condemned or vacatedTaxes of the Company and any Subsidiary (“Tax Claim”) which would give rise to a claim for indemnification against the Sellers, by reason the Purchaser shall, promptly after receiving such knowledge, provide written notice to the Sellers’ Representative which written notice will set out the nature and the amount of non-compliance or otherwise by reason of such contest;the Tax Claim.
(ii) Tenant The omission to so notify the Sellers’ Representative shall defend, not relieve the Significant Shareholders from any duty to indemnify and hold harmless Landlord from which might otherwise exist with respect to such Tax Claim unless (and only to the extent that) the omission to notify materially prejudices the ability of the Significant Shareholders to contest the Tax Claim or otherwise materially increases the amount of any claim for indemnification against any and all actionsthe Significant Shareholders, proceedings, claims, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) in which Landlord shall suffer by reason case the indemnification may be reduced to the extent that such delay materially prejudiced the contestation or materially increased the amount of such non-compliance or contest;liability.
(iii) such non-compliance In respect of a notification made pursuant to Section 7.01(c)(i), the Significant Shareholders shall be entitled to pay the Purchaser the amount claimed under an assessment or contest reassessment. The Significant Shareholders shall not constitute or result in any violation have the right, upon giving notice to the Purchaser within fifteen (15) Business Days of the receipt of any superior lease or superior mortgagenotice given pursuant to Section 7.01(c)(i), or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition to challenge the Tax Claim and assume control of the taking negotiation, settlement and dispute of action or furnishing of security by Landlord, such action Tax Claim. The Sellers shall be taken and such security shall be furnished at thereafter keep the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as Purchaser reasonably informed with respect to the status of such proceedingsTax Claim.
(biv) Without limiting If the application Significant Shareholders opt to challenge the Tax Claim pursuant to Section 7.01(c)(iii), the Significant Shareholders shall diligently proceed with the negotiation, contestation or settlement of subsection the Tax Claim at their sole expense, including, employment of counsel reasonably satisfactory to the Purchaser and, in connection therewith, the Purchaser shall cooperate fully, but at the expense of the Significant Shareholders with respect to reasonable out-of-pocket expenses incurred, to make available to the Significant Shareholders all pertinent information and witnesses under the Purchaser’s control, make such assignments and take such other steps as in the opinion of counsel to the Significant Shareholders, are reasonably necessary to enable the Significant Shareholders to contest the Tax Claim.
(a)(iv) above theretoThe Significant Shareholders shall not enter into any settlement or discontinuance of proceedings or make any final decision regarding appeal rights in respect of a Tax Claim for which the Significant Shareholders have given a notice pursuant to Section 7.01(c)(iii) without the prior written consent of the Purchaser, Landlord which shall not be unreasonably withheld.
(vi) The Purchaser shall not grant or agree to any waiver of any limitation period in respect of a Tax Claim referred to in Section 7.01(c)(i) unless the Sellers’ Representative has been given a notice by the Purchaser in accordance with Section 7.01(c)(i) and the Significant Shareholders have failed to give the notice contemplated by Section 7.01(c)(iii) to the Purchaser before the earlier of the date on which the deadline for providing the waiver expires (which date shall be specified in the notice given to the Sellers’ Representative in accordance with Section 7.01(c)(i)) and the fifteenth (15th) Business Day following receipt by the Sellers’ Representative of the notice contemplated by Section 7.01(c)(i).
(vii) The Purchaser will be entitled to participate in the contestation of such Tax Claim and to employ counsel of its choice for such purpose, provided that the fees and expenses of such separate counsel will be borne by the Purchaser (other than any fees and expenses of such separate counsel that are incurred prior to the date the Significant Shareholders effectively assume control of such contestation and that are reasonably necessary in order to protect its rights vis-à-vis the Governmental Authority responsible for such Tax Claim which, notwithstanding the foregoing, will be borne by the Significant Shareholders).
(viii) If the Significant Shareholders fail to give notice to the Purchaser that the Significant Shareholders wish to challenge a Tax Claim within fifteen (15) Business Days after the Sellers’ Representative has been notified of such Tax Claim pursuant to Section 7.01(c)(i), the Sellers shall be deemed subject to prosecution have accepted the validity of such Tax Claim.
(ix) In the case of a Tax Claim for which the Purchaser is required by applicable Law to make a crime payment to any Governmental Authority with respect to such Tax Claim before the completion of settlement negotiations or related legal proceedings, the Significant Shareholders shall pay such Tax (or part thereof) to the Purchaser at the time such Tax is required by Law to be paid.
(x) The Purchaser shall reimburse to the Significant Shareholders the amount paid in respect of the Tax Claim by the Sellers to the Purchaser finally determined not to be due and in respect of which all appeal procedures have been exhausted or discontinued or settled.
(xi) Subject to Section 7.01(c)(ix), amounts payable by an Significant Shareholders in respect of a Tax Claim shall be paid within the meaning time provided for by applicable Law or in accordance with the terms of said subsection, if Landlord, or any officer, director, partner, member, principal or employee of Landlord individually, is charged settlement with a crime of any kind Governmental Authority or degree whatever, whether by service of assessment or reassessment issued pursuant to 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 theretofinal judgment.
Appears in 1 contract
Sources: Share Purchase Agreement (Double-Take Software, Inc.)
Contests. (a) Tenant mayEach Party 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, at its expense contest, examination or proceeding by appropriate proceedings prosecuted diligently and in good faith, the validity, a Governmental Authority with respect to Taxes or applicability Tax Returns of or related to the PremisesCompany (a “Tax Claim”); provided, however, that the failure of such Party to give prompt notice shall not relieve the other Party of any Requirement with which Tenant is obligated to comply pursuant of its obligations hereunder except 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 other Party can demonstrate actual prejudice 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 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 Seller may, at its own expense, participate in, and upon written notice to Buyer, assume the application defense of subsection any Tax Claim relating solely to any Pre-Closing Tax Period that ends on or prior to the Closing Date, if Seller has conclusively established in writing their obligation to indemnify the Company, Buyer and their Affiliates with respect to such Tax Claim and all Losses related thereto and at all times conducts the defense of the Tax Claim in good faith and in a reasonably diligent manner.
(a)(ic) above theretoSeller will have the right to participate jointly with Buyer in representing the interests of the Company in any Tax Claim relating to a Straddle Period, Landlord if and to the extent that such period includes any Pre-Closing Tax Period, and to employ counsel of its choice at its expense if Seller has conclusively established in writing its obligation to indemnify the Company, Buyer and their Affiliates with respect to such Tax Claim and all Losses related thereto to the extent they relate to a Pre-Closing Tax Period. ▇▇▇▇▇ and ▇▇▇▇▇▇ agree to cooperate in the defense of any Tax Claim in such proceeding.
(d) Seller shall be deemed subject entitled to prosecution for a crime within control in all respects, and neither Buyer nor any of its Affiliates (including, after the meaning Closing, the Company) shall be entitled to participate in, any Tax Claim with respect to (i) any Tax Return of said subsectionSeller or (ii) any consolidated, if Landlordcombined, unitary 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 similar Tax Return of a summons consolidated, combined 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 theretounitary group that includes Seller.
Appears in 1 contract
Contests. (a) Tenant mayParent and the Company agree to give written notice to Stockholder Representative or Parent, 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, of the receipt of any written notice by a Company Entity, Parent or any of Parent’s Affiliates which involves the assertion of any claim, or the commencement of any Action, in respect of which an indemnity may be sought by Parent pursuant to this Article VI (a “Tax Claim”); provided, that failure to comply with this provision shall not affect Parent’s right to indemnification hereunder except to the extent that the Stockholders and In-Money Optionholders are prejudiced or forfeit rights or defenses by reason of such failure. Stockholder Representative shall control the contest or resolution of any Tax Claim other than a Tax Claim relating to Parent’s or a Company Entity’s use of Net Operating Loss Limitation, which shall be controlled by Parent; provided, however, that Stockholder Representative shall obtain the prior written consent of Parent (which consent shall not be unreasonably withheld or delayed) is required before entering into any settlement of a claim or ceasing to plead defend such claim; and, provided further, that Parent shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Parent. In the case of a Tax Claim relating to Parent’s or answer theretoa Company Entity’s use of the Net Operating Loss Limitation, Parent shall obtain the prior written consent of Stockholder Representative (which consent shall not be unreasonably withheld or delayed) before entering into settlement of such claim or ceasing to defend such claim.
Appears in 1 contract
Sources: Merger Agreement (Aegion Corp)
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 maySeller promptly shall forward to the Company and Buyer a copy of all written communications from a Taxing authority received by Seller or its affiliates that relates to the Company, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithassets or the Business. Buyer shall cause the Company to give Seller prompt written notice (a “Tax Notice”) of the Buyer’s, the validityCompany’s or any of their Affiliates’ receipt of any written communication from a Taxing authority received by any of them which involves the assertion of any claim, or applicability the commencement of any Proceeding, in respect of which indemnity may be sought by Buyer pursuant to this Article VII (each, a “Tax Claim”), together with a copy of such written communication; provided, however, the Company’s failure to provide such notice shall not affect Buyer’s right to indemnification hereunder, except to the Premises, of any Requirement with which Tenant extent Seller 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 proceedingsmaterially prejudiced thereby.
(b) Without limiting Seller will control the application contest or resolution of subsection any Tax Claim that relates to a taxable period ending on or prior to the Closing Date (a)(ieach, a “Pre-Closing Tax Claim”); provided, however, Seller will obtain the prior written consent of Buyer (which consent will not be unreasonably withheld, conditioned or delayed) above theretobefore entering into any settlement of such Pre-Closing Tax Claim; and provided, Landlord shall further, Buyer will be deemed subject entitled to prosecution participate in the defense of such Tax Claim and to employ counsel of its choice (at Buyer’s expense) for such purpose.
(c) Buyer will control the contest or resolution of any Tax Claim other than a crime within Pre-Closing Tax Claim; provided, however, Seller will be entitled to participate in the meaning defense of said subsectionsuch claim and to employ counsel of its choice for such purpose, if Landlordthe fees and expenses of which separate counsel will be borne solely by Seller; and provided, further, Buyer will not enter into settlement of any such Tax Claim without the prior written consent of Seller. If an offer is made to settle such a Tax Claim and Buyer desires to accept and agree to such offer, or any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime if Buyer desires to consent to the entry of any kind judgment with respect to such a Tax Claim, Buyer shall give written notice to that effect to Seller. If Seller fails to consent to such firm offer or degree whateverto such judgment within five (5) days after its receipt of such notice, whether then Buyer shall indemnify Seller and its Affiliates for all Losses with respect to such Tax Claim that exceed the amount that would have been payable or incurred by service Seller and its Affiliates pursuant to or as a result of a summons the acceptance of such settlement offer 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 theretojudgment.
Appears in 1 contract
Contests. ▇▇▇▇▇▇ agrees to give written notice to ▇▇▇▇▇, and ▇▇▇▇▇ agrees to give written notice to ▇▇▇▇▇▇, of the receipt of any written notice which involves the assertion of any claim, or the commencement of any Action, in respect of which an indemnity relating to any Tax may be sought by Buyer from Seller pursuant to this Agreement (a) Tenant a “Tax Claim”); provided, that failure to comply with this provision shall not affect ▇▇▇▇▇’s right to indemnification hereunder. Seller may, at its expense contestthe Seller’s cost and expense, by appropriate proceedings prosecuted diligently and participate in good faithand, upon written notice to Buyer (a “Defense Notice”), assume the validity, or applicability to the Premises, defense of any Requirement with which Tenant is obligated Action relating solely to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedingsa Tax Claim, provided that:
that (i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall Seller provides such written notice within ten (10) days after becoming aware of the Premises or commencement of any part thereof be subject to being condemned or vacatedTax Claim, 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 the defense of such non-compliance or contest;
Tax Claim can be conducted separately from the defense of any Action for which Seller is not responsible pursuant to this Agreement, (iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgagecounsel engaged by Seller is reasonably acceptable to Buyer, 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 Seller shall thereafter regularly consult with Buyer and keep Landlord advised as Buyer informed of any material developments with respect to the status of such proceedings.
Tax Claim and (bv) Without limiting the application of subsection Seller shall not, without Buyer’s prior written consent (a)(i) above theretonot to be unreasonably withheld, Landlord shall be deemed subject delayed or conditioned), agree to prosecution for a crime within the meaning of said subsection, if Landlordany settlement, or appeal any officeradverse determination, directorwith respect to any Tax Claim (each such Tax Claim assumed by Seller, partnera “Seller Tax Claim,” and any other Tax Claim, member, principal or employee of Landlord individually, is charged with a crime “Buyer Tax Claim”). Buyer shall have the right (but not the duty) to participate in the defense of any kind or degree whateverSeller Tax Claim and to employ counsel, whether at its own expense, separate from the counsel employed by service Seller in such Seller Tax Claim. Buyer shall retain the defense over any Buyer Tax Claim, provided that (i) Buyer shall provide written notice within ten (10) days after becoming aware 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.commencement of any Buyer Tax Claim,
Appears in 1 contract
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 mayBuyers agrees to give prompt written notice to Seller of the receipt of any written notice by the Company, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, Buyers or any Buyer Affiliate which involves the validityassertion of any claim, or applicability the commencement of any Action in respect of which an indemnity may be sought by Buyers pursuant to this Article VI or in respect of any Pre-Closing Tax Period or Straddle Period of the Company (a “Tax Claim”); provided that failure to comply with this provision shall not affect Buyers’ right to indemnification hereunder except to the Premises, extent that Seller or a Seller Related Party is materially prejudiced by such failure. Seller shall have the right to control the contest or resolution of any Requirement Tax Claim with respect to any taxable period ending on or before the Closing Date; provided, however, that Seller shall obtain the prior written consent of Buyers (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, conditioned or delayed) before entering into any settlement of a claim if the resolution or settlement of such claim would increase the Tax liability of any Buyer or the Company in a taxable period that ends after the Closing Date, or ceasing to criminal penalty defend such claim; and provided further, that Buyers shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Buyers. Buyers shall have the right to control the contest or resolution of any Tax Claim with respect to prosecution for any Straddle Period; provided, however, that Buyers shall obtain the prior written consent of Seller (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of a crime nor shall claim if the Premises resolution or settlement of such claim would increase the Tax liability of Seller 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 Seller Related Party or result in any violation of any superior lease an indemnification obligation owing by Seller or superior mortgageSeller Related Party to a Buyer Indemnitee pursuant to this Article VI or ceasing to defend such claim; and, 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 Landlordprovided further, such action that Seller 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 Seller.
(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 and Asset Purchase Agreement (Endo International PLC)
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 Buyer will immediately notify Sellers in writing of any proposed assessment or claim or the commencement of any Tax Proceeding which, if determined adversely, could result in a liability to Sellers under this Agreement or which could cause an adjustment in the Tax liability of Sellers or their Affiliates. Sellers will immediately notify Buyer in writing of any proposed assessment or claim or the commencement of any Tax Proceeding which, if determined adversely, could affect the determination of Taxes to which the Company may be subject in or for Post-Closing Tax Periods, but only to criminal penalty the extent that Sellers are notified thereof. In each case, 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 shall defendIn the case of a Tax Proceeding that relates to any Pre-Closing Tax Period, 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 Sellers will have the right at their own expense to control the conduct of such nonTax Proceeding including settling or compromising the issue or matter except if such settlement or compromise affects the Tax liability of the Company for any Post-compliance Closing Tax Period, in which case no settlement or contest;compromise shall be made without the consent of Buyer, which shall not be unreasonably withheld. If Sellers elect to direct such Tax Proceeding, Sellers shall, within 30 days of its becoming aware of any Tax Proceeding, notify Buyer of Sellers' intent to do so, and Buyer shall cooperate and shall cause the Company to fully cooperate, at Sellers' expense, in each phase of the Tax Proceeding. If Sellers elect not to direct such Tax Proceeding, Buyer or the Company, as applicable, may assume control of such Tax Proceeding (at Buyer's expense); provided, however, in such case, Buyer shall provide Sellers with a timely and reasonably detailed account of each phase of the Tax Proceeding, and neither Buyer nor the Company may settle or compromise any asserted liability without the prior written consent of Sellers, which shall not be unreasonably withheld. In any event, Sellers may participate, at their own expense, in any Tax Proceeding related to any Pre-Closing Tax Period, and Buyer may participate, at its own expense, in any Tax Proceeding related to any Taxes which could affect the determination of Taxes to which the Company may be subject in or for any Post-Closing Tax Period.
(iii) In the case of any Tax Proceeding that relates to any Tax for any Straddle Period, Sellers may elect to direct and control, through counsel of their own choosing, such non-compliance audit or contest Proceeding, except that Sellers may not settle or compromise the issue or matter if such settlement or compromise affects the Tax liability of the Straddle Period allocated to the Company under Section 6.04(d), without the consent of Buyer, which shall not constitute be unreasonably withheld. If Sellers elect to direct such Tax Proceeding, Sellers shall, within 30 days of their becoming aware of any such Tax Proceeding, notify Buyer of Sellers' intent to do so, and Buyer shall cooperate and shall cause the Company to fully cooperate, at Sellers' expense, in each phase of the Tax Proceeding. If Sellers elect not to direct such Tax Proceeding, Buyer or result the Company, as applicable, may assume control of such Tax Proceeding (at Buyer's expense); provided, however, in such case, Buyer shall provide Sellers with a timely and reasonably detailed account of each phase of the Tax Proceeding, and neither Buyer nor the Company may settle or compromise any asserted liability without the prior written consent of Sellers, which shall not be unreasonably withheld. In any event, Sellers may participate, at their own expense, in any violation of Tax Proceeding related to a Straddle Period. Except as provided otherwise in this Section 6.04(g), Buyer will control, at its own expense, any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition and all Tax Proceedings 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 proceedingsCompany.
(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 (Watts Water Technologies Inc)
Contests. (a) Tenant mayBuyer agrees to give written notice to Seller of the receipt of any written notice by the Company, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, Buyer or any of Buyer’s Affiliates which involves the validityassertion of any claim, or applicability the commencement of any Action, in respect of which an indemnity may be sought by Buyer pursuant to this ARTICLE VI (a “Tax Claim”); provided, that failure to comply with this provision shall not affect Buyer’s right to indemnification hereunder except to the Premises, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, extent Seller was 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 materially 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 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 proceedingsthereof.
(b) Without limiting Seller shall control the application contest or resolution of subsection any Tax Claim relating to a Pre-Closing Tax Period (a)(iother than any Pre-Closing Tax Period included in a Straddle Period); provided, however, that (i) above theretoSeller shall keep Buyer reasonably informed of the progress of any such Tax Claim, Landlord (ii) Buyer shall have the right to participate in the defense of any such Tax Claim at Buyer’s sole cost and expense, and (iii) solely with respect to a Tax Claim that would adversely affect Buyer in a Post-Closing Tax Period, Seller shall obtain the prior written consent of Buyer (which consent shall not be deemed subject unreasonably withheld, conditioned or delayed) before entering into any settlement of such Tax Claim or ceasing to prosecution for defend such Tax Claim; provided however, that if Seller determines that such Tax Claim would not adversely affect Buyer in a crime Post-Closing Tax Period and therefore does not require Seller to obtain Buyer's prior written consent pursuant to this clause (iii), Seller shall provide written confirmation to Buyer of Seller's obligation pursuant to Section 6.03 to indemnify Buyer with respect to such Tax Claim within the meaning ten (10) days of said subsection, if Landlordentering into any settlement of such Tax Claim or ceasing to defend such Tax Claim. If Seller fails to, or does not elect to, timely exercise control over the conduct with respect to any officersuch Tax Claim, directorBuyer shall have control over the conduct with respect to such Tax Claim; provided, partnerhowever, memberthat Seller shall have the right, principal but not the obligation, to participate in such defense with separate counsel of its choosing at its sole cost and expense. Buyer shall obtain the prior written consent of Seller (which consent shall not be unreasonably withheld, conditioned or employee delayed) before entering into any settlement of Landlord individually, is charged with a crime such Tax Claim or ceasing to defend such Tax Claim.
(c) Buyer shall control the contest or resolution of any kind Tax Claim relating to a Straddle Period; provided, however, that (i) Buyer shall keep Seller reasonably informed of the progress of any such Tax Claim, (ii) Seller shall have the right to participate in the defense of any such Tax Claim at Seller’s sole cost and expense, and (iii) Buyer shall obtain the prior written consent of Seller (which consent shall not be unreasonably withheld, conditioned or degree whatever, whether by service delayed) before entering into any settlement of a summons such Tax Claim or otherwise, unless ceasing to defend 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 1 contract
Sources: Stock Purchase Agreement (BurgerFi International, Inc.)
Contests. The Purchaser agrees to give written notice to the Vendors’ Representative of the receipt of any written notice by the Target Group, the Purchaser or any of the Purchaser’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 Purchaser pursuant to this Article 7 (aa “Tax Claim”) Tenant mayand shall describe in reasonable detail (to the extent known by Purchaser) the facts constituting the basis for such Tax Claim, the nature of the relief sought, and the amount of the claimed losses (including Taxes), if any; provided, that failure to comply with this provision shall not affect the Purchaser’s right to indemnification hereunder. Vendors’ Representative may elect to assume and control the defense of such Tax Claim by notice to Purchaser within ten (10) days after delivery by Purchaser to Vendors’ Representative of the written notice under this Section 7.6. If Vendors’ Representative elects to assume and control the defense of such Tax Claim, the Vendors’ Representative, on behalf of the Vendors and the Principals, at its expense contestown expense, by appropriate proceedings prosecuted diligently and in good faith, shall control the validity, contest or applicability to the Premises, resolution of any Requirement Tax Claim and Purchaser shall execute or cause to be executed powers of attorney or other documents necessary to enable Vendors’ Representative to take all actions desired by it with respect to such Tax Claim; provided that Vendors’ Representative shall not settle or compromise such Tax Claim without the prior written consent of the 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 not be subject unreasonably withheld or delayed). Any proceeding with respect to criminal penalty or to prosecution Taxes for a crime nor Straddle Period shall be controlled jointly by Vendors’ Representative and 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 Purchaser and each party 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 bear its own 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 proceedingsexpenses.
(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: Contribution and Exchange Agreement
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 and in good faithor compromise, the validity, or applicability to the Premises, of any Requirement with Claim for which Tenant indemnification is obligated to comply pursuant to the provisions of sought under this LeaseSection 12.1, and Landlord the Indemnitee shall cooperate cooperate, at the Lessee's expense, with Tenant all reasonable requests of the Lessee in such proceedingsconnection therewith, provided that:
that the Lessee shall not have the right without the consent of the Indemnitee to defend, contest or compromise any claim with respect to such Indemnitee (i) Landlord if a Lease Event of Default shall not have occurred and 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 vacatedcontinuing, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defendif such proceeding involves any material danger of the sale, indemnify and hold harmless Landlord from and against any and all actionsforfeiture or loss of the Undivided Interest, 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 a realistic possibility of criminal sanctions or criminal liability 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. The Lessee will not be required to acknowledge liability as a condition to exercising its contest rights hereunder unless the Lessee assumes control of such contest. With respect to any Claim, liability for which the Lessee shall have acknowledged to the relevant Indemnitee in writing, in the event that in the course of the investigation or defense of such Claim, the Lessee shall in good faith reasonably determine that it is not liable for indemnification with respect thereto, it may give notice to the applicable Indemnitee of such fact; and
, in such case, any acknowledgement therefore made by the Lessee of its liability with respect to such Claim shall be deemed revoked, and the Lessee may thereupon cease to defend such Claim, provided that (ivi) Tenant it shall have given the Indemnitee reasonable prior notice of its intention to renounce such acknowledgment, (ii) the Lessee's conduct regarding the defense of such Claim or any decision to withdraw from such defense shall not materially prejudice or have materially prejudiced the Indemnitee's ability to contest such Claim (taking into account, among other things, the time of the Lessee's withdrawal and the theory or theories upon which the Lessee shall have based its defense), and (iii) the Lessee shall have given such Indemnitee all materials, documents and records relating to its defense of such Claim as such Indemnitee shall have reasonably requested in connection with the assumption by such Indemnitee of the defense of such Claim at the cost and expense of such Indemnitee unless it is determined that the Lessee is required to indemnify such Indemnitee for such Claim, in which case at the cost and expense of the Lessee. In the event that the Lessee shall cease to defend any Claim pursuant to the preceding sentence, the Lessee shall indemnify each Indemnitee to the extent that the actions of the Lessee in defending such Claim or the manner or time of the Lessee's election to withdraw from the defense of such Claim shall have caused such Indemnitee to incur any loss, cost, liability or expense which such Indemnitee might not have incurred had the Lessee not ceased to defend such Claim in such manner or such time; provided, however, that the Lessee shall not be required to indemnify such Indemnitee to the extent that the Lessee shall have proven (in a judicial proceeding or otherwise) that neither its manner of defending such Claim nor the manner of time of its withdrawal from the defense of such Claim caused such loss, cost, liability or expense. 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 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 shall keep the Lessee fully apprised of the status of such proceeding and shall provide the Lessee with all information, including the receipt of all settlement offers, with respect to such proceeding as such Indemnitee shall reasonably request. Where 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 written opinion of counsel to such Indemnitee an actual or any officer, director, partner, member, principal potential material conflict of interest exists where it is advisable for such Indemnitee to be represented by separate counsel or employee of Landlord individually, is (ii) such Indemnitee has been indicted or otherwise charged in a criminal complaint 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 or otherwiseLease Event of Default, the Lessee shall not compromise any Claim without the consent of the applicable Indemnitee unless such charge Claim is withdrawn before Landlord simultaneously discharged, such consent not to be unreasonably withheld. Notwithstanding anything to the contrary contained in this Section 12.1, to the extent the defense or settlement of any Claim in respect of which an Indemnitee is entitled to indemnification hereunder is governed by the terms of the Operating Agreement, such officerdefense or settlement shall be governed by the 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 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
Sources: Participation Agreement (Newfield Exploration Co /De/)
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. Seller agrees to give written notice to Buyer, and Buyer agrees to give written notice to Seller, of the receipt of any written notice which involves the assertion of any claim, or the commencement of any Action, in respect of which an indemnity relating to any Tax may be sought by Buyer from Seller pursuant to this Agreement (a) Tenant a “Tax Claim”); provided, that failure to comply with this provision shall not affect Buyer’s right to indemnification hereunder. Seller may, at its expense contestthe Seller’s cost and expense, by appropriate proceedings prosecuted diligently and participate in good faithand, upon written notice to Buyer (a “Defense Notice”), assume the validity, or applicability to the Premises, defense of any Requirement with which Tenant is obligated Action relating solely to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedingsa Tax Claim, provided that:
that (i) Landlord shall not be subject to criminal penalty or to prosecution for a crime nor shall Seller provides such written notice within ten (10) days after becoming aware of the Premises or commencement of any part thereof be subject to being condemned or vacatedTax Claim, 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 the defense of such non-compliance or contest;
Tax Claim can be conducted separately from the defense of any Action for which Seller is not responsible pursuant to this Agreement, (iii) such non-compliance or contest shall not constitute or result in any violation of any superior lease or superior mortgagecounsel engaged by Seller is reasonably acceptable to Buyer, 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 Seller shall thereafter regularly consult with Buyer and keep Landlord advised as Buyer informed of any material developments with respect to such Tax Claim and (v) Seller shall not, without Buyer’s prior written consent (not to be unreasonably withheld, delayed or conditioned), agree to any settlement, or appeal any adverse determination, with respect to any Tax Claim (each such Tax Claim assumed by Seller, a “Seller Tax Claim,” and any other Tax Claim, a “Buyer Tax Claim”). Buyer shall have the status right (but not the duty) to participate in the defense of any Seller Tax Claim and to employ counsel, at its own expense, separate from the counsel employed by Seller in such proceedings.
Seller Tax Claim. Buyer shall retain the defense over any Buyer Tax Claim, provided that (bi) Without limiting Buyer shall provide written notice within ten (10) days after becoming aware of the application commencement of subsection any Buyer Tax Claim, (a)(iii) above theretocounsel engaged by Buyer is reasonably acceptable to Seller, Landlord (iv) Buyer shall thereafter regularly consult with Seller and keep Seller informed of any material developments with respect to such Buyer Tax Claim and (v) Buyer shall not, without Seller’s prior written consent (not to be deemed subject unreasonably withheld, delayed or conditioned), agree to prosecution for any settlement, or appeal any adverse determination, with respect to any Buyer Tax Claim. Seller shall have the right (but not the duty) to participate in the defense of any Buyer Tax Claim and to employ counsel, at its own expense, separate from the counsel employed by Buyer in such Buyer Tax Claim. Seller’s delivery of a crime within the meaning Defense Notice shall constitute an acceptance of said subsectionits obligation hereunder to indemnify Buyer with respect to all Losses, if Landlordany, 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 resulting from the case may be) is required to plead or answer theretosubject Tax Claim.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Century Casinos Inc /Co/)
Contests. (a) Tenant mayWhenever any Taxing Authority asserts a claim, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, the validitymakes an assessment, or applicability otherwise disputes the amount of Taxes for which the Company Holders are liable under this Agreement, Buyer shall upon receipt of such assertion, promptly, but no later than fifteen (15) days after such receipt, inform the Shareholders’ Representative in writing of such assertion. The Buyer shall control any resulting proceedings and determine whether and when to the Premisessettle any such claim, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Leaseassessment or dispute; provided, and Landlord shall cooperate with Tenant in such proceedingshowever, provided that:
that (i) Landlord the Shareholders’ Representative shall be permitted to participate (at the Company Holders’ expense) to the extent such proceedings or determinations affect the amount of Taxes for which the Company Holders may be required to indemnify Buyer under this Agreement and (ii) the Buyer shall not settle any such claim, assessment or dispute without the Shareholders’ Representative’s consent, which shall not be subject to criminal penalty unreasonably withheld, conditioned or to prosecution for delayed. Whenever any Governmental Entity asserts a crime nor shall the Premises or any part thereof be subject to being condemned or vacatedclaim, by reason of non-compliance makes an assessment or otherwise by reason disputes the amount of such contest;
Taxes for which both the Company and Buyer may be liable: (i) each Party may participate in any resulting proceedings at its own expense; (ii) Tenant that portion of the proceedings shall defend, indemnify be controlled by that Party which would bear the burden of the greater portion of the sum of the adjustment and hold harmless Landlord from any corresponding adjustments; 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) the controlling Party shall not settle any such claim, assessment or dispute without the consent of the non-compliance or contest controlling Party, which shall not constitute 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; 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 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 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 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) (collectively a "Tax Claim") for any Tax as to which the Agent may have an indemnity obligation pursuant to this Section 12.3, such Indemnified Person shall as soon as practicable after its receipt or commencement, and in any event within thirty (30) days notify the Agent in writing and furnish the Agent with copies of such Tax Claim and all other writings received from the taxing authority to the extent relating to such Tax Claim (provided, that failure to so notify the Agent within thirty (30) days shall not alter such Indemnified Person's rights under this Section 12.3 except to the extent such failure precludes or materially adversely affects the ability to conduct a contest of any Tax Claim) and shall not take any action with respect to such Tax Claim without the written consent of the Agent (such consent not to be subject unreasonably withheld or unreasonably delayed) for thirty (30) days after the receipt of such notice by the Agent; provided, however, that in the case of any such Tax Claim, if such Indemnified Person shall be required by law or regulation to criminal penalty take action prior to the end of such 30-day period, such Indemnified Person shall in such notice to the Agent, so inform the Agent, and such Indemnified Person shall not take any action with respect to such Tax Claim without the consent of the Agent (such consent not to be unreasonably withheld or unreasonably delayed) for ten (10) days after the receipt of such notice by the Agent unless the Indemnified Person shall be required by law or regulation to prosecution take action prior to the end of such 10-day period.
(ii) The Agent shall be entitled for a crime nor period of thirty (30) days from receipt of such notice from the Indemnified Person (or such shorter period reasonably specified Construction Agency Agreement by the Indemnified Person as the Indemnified Person has notified the Agent is required by law or regulation for such Indemnified Person to commence such contest of such Tax Claim), to request in writing that such Indemnified Person contest the imposition of such Tax, at the Agent's sole cost and expense and the Indemnified Person shall not pay such Tax Claim during such period. If (x) such Tax Claim can be pursued in the Premises name of the Agent and independently from any other proceeding involving a Tax liability of such Indemnified Person for which the Agent has not agreed to indemnify such Indemnified Person, (y) such Tax Claim must be pursued in the name of the Indemnified Person, but can be pursued independently from any other proceeding involving a Tax liability of such Indemnified Person for which the Agent has not agreed to indemnify such Indemnified Person or any part thereof (z) the Indemnified Person so requests, then the Agent shall be subject permitted to being condemned control the contest of such Tax Claim; provided, that in the case of a Tax Claim described in clause (y), if the Indemnified Person reasonably determines that the contest of such Tax Claim by the Agent could have an adverse impact on the business or vacatedoperations of the Indemnified Person, such Indemnified Person may elect to control or reassert control of the Tax Claim, and provided, that by reason taking control of non-compliance or otherwise the Tax Claim, Agent acknowledges that it is responsible for the Tax ultimately determined to be due by reason of such claim. In all other claims requested to be contested by the Agent, such Indemnified Person shall control the contest of such Tax Claim. In no event shall the Agent be permitted to contest (or the Indemnified Person be required to contest;
) any Tax Claim (iiA) Tenant if such Indemnified Person provides the Agent with a legal opinion of counsel reasonably acceptable to the Agent that such action, suit or proceeding involves a risk of imposition of criminal liability or could involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on any Property or any part of any thereof unless the Agent shall defendhave posted and maintained a bond or other security satisfactory to the relevant Indemnified Person in respect to such risk, indemnify (B) if an Event of Default has occurred and hold harmless Landlord from is continuing unless the Agent shall have posted and against maintained by a bond or other security satisfactory to the relevant Indemnified Person in respect of the Taxes subject to such Tax Claim and any and all actionsexpenses for which the Agent is responsible hereunder reasonably foreseeable in connection with the contest of such Tax Claim, proceedings(C) unless the Agent shall have agreed to pay and shall pay, claimsto such Indemnified Person on demand all reasonable out-of-pocket costs, deficiencies, judgments, suits, losses, obligations, penalties, liabilities, damages, costs losses and expenses (that such Indemnified Person may incur in connection with contesting such Tax Claim including court costs all reasonable legal, accounting and reasonable legal investigatory fees and disbursements, or (D) which Landlord if such contest shall suffer by reason involve the payment of the Tax prior to the contest, unless the Agent shall provide to the Indemnified Person an interest-free advance in an amount equal to the Tax that the Indemnified Person is required to pay (with no additional net after-tax costs to such Indemnified Person) (a "Tax Advance"). In addition for Indemnified Person controlled Tax Claims and Tax Claims contested in the name of such non-compliance Indemnified Person in a public forum, no contest shall be required (A) unless the amount of the potential indemnity (taking into account all similar or contest;logically related Tax Claims that have been or could be raised in any audit involving such Indemnified Person with respect to any period for which the Agent may be liable to pay an indemnity under this Section 12.3) exceeds $50,000 and (B) unless, if requested by such Indemnified Person, the Agent shall have provided to such Indemnified Construction Agency Agreement Person an opinion of independent tax counsel selected by such Indemnified Person and reasonably acceptable to the Agent that a reasonable basis exists to contest such Tax Claim. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court.
(iii) The party conducting the Tax Claim shall consult in good faith with the other party and its counsel with respect to the contest of such non-compliance Tax Claim for Taxes (or contest claim for refund) but the decisions regarding what actions are to be taken shall be made by the controlling party in its sole judgment; provided, however, that if the Indemnified Person is the controlling party and the Agent recommends the acceptance of a settlement offer made by the relevant Governmental Authority and such Indemnified Person rejects such settlement offer, then the amount for which the Agent will be required to indemnify such Indemnified Person with respect to the Taxes subject to such offer shall not constitute or result in any violation of any superior lease or superior mortgage, or exceed the amount which it would have owed if such superior lease and/or superior mortgage settlement offer had been accepted. In addition, the controlling party shall permit such non-compliance or contest on condition keep the noncontrolling party and its designated counsel reasonably informed as to the progress of the taking Tax Claim, and shall provide the noncontrolling party and its designated counsel with a copy of action (or furnishing of security appropriate excerpts from) any reports or claims issued by Landlordthe relevant auditing agents or taxing authority to the controlling party thereof, in connection with such action shall be taken and such security shall be furnished at Tax Claim or the expense of Tenant; andcontest thereof.
(iv) Tenant shall keep Landlord advised Each Indemnified Person shall, at the Agent's sole cost and expense, supply the Agent with such information and documents reasonably requested by the Agent as are necessary or advisable for the Agent to participate in any action, suit or proceeding to the status extent permitted by this Section 12.3(k); provided, however, that such Indemnified Person shall not be required to provide to the Agent copies of its tax returns or any other information, documentation or materials that it deems to be confidential or proprietary. No Indemnified Person shall enter into any settlement or other compromise or fail to appeal an adverse ruling with respect to any Tax Claim which is entitled to be indemnified under this Section 12.3 (and with respect to which a contest is required under this Section 12.3) without the prior written consent of the Agent, unless such proceedingsIndemnified Person waives its right to be indemnified under this Section 12.3 with respect to such Tax Claim.
(bv) Without limiting Notwithstanding anything contained herein to the application contrary, an Indemnified Person will not be required to contest (and the Agent shall not be permitted to contest) a Tax Claim with respect to the imposition of subsection any Tax if such Indemnified Person shall waive its right to indemnification under this Section 12.3 with respect to such Tax Claim (a)(i) above thereto, Landlord shall be deemed subject and any Tax Claim with respect to prosecution for a crime within the meaning of said subsection, if Landlord, such year or any officer, director, partner, member, principal or employee other taxable year the contest of Landlord individually, which is charged with materially adversely affected as a crime result of such waiver) and shall promptly repay to the Agent any kind or degree whatever, whether by service Tax Advance paid to such Indemnified Person 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 theretoTaxes.
Appears in 1 contract
Sources: Construction Agency Agreement (Reliant Resources Inc)
Contests. (aA) Tenant mayIf the Buyer or the Company receives written notice of any pending or threatened audit or other examination by any Governmental Authority, or any judicial or administrative proceedings relating to Taxes (each, a “Tax Contest”) that would reasonably be expected to result in Losses that are indemnifiable under this Agreement, the Buyer shall promptly notify the Sellers’ Representative. If the Sellers’ Representative or any Seller receives written notice of a Tax Contest that would reasonably be expected to result in Losses that are indemnifiable under this Agreement, such Party shall promptly notify the Buyer. In each case within this clause (v), the failure or delay in delivering such notice shall not relieve a Party of its obligations hereunder except to the extent that such Party is actually and materially prejudiced by such failure or delay.
(B) If such Tax Contest relates solely to any Past Period, and not to the Straddle Period or any post-Closing period, the Sellers’ Representative shall have the right (but not the obligation), to be exercised within ten (10) Business Days following its receipt of the written notice of such Tax Contest by delivering written notice to the Buyer, to assume and thereafter conduct and control the defense of such Tax Contest (with counsel of the Sellers’ Representative’s choice). For so long as the Sellers’ Representative is conducting and controlling such defense, the Buyer shall have the right, but not the obligation, to participate in such defense with separate counsel of its choosing at its expense contestsole cost and expense. None of the Sellers or the Sellers’ Representative shall be permitted to consent to the entry of any judgment or enter into any settlement of such Tax Context which may adversely impact the Buyer or the Company for a post-Closing period or the Tax attributes of the Company without the prior written consent of the Buyer (not to be unreasonably withheld, by appropriate proceedings prosecuted diligently conditioned, or delayed).
(C) Unless and in good faithuntil the Sellers’ Representative assumes the defense of such Tax Contest, the validityBuyer may defend against such Tax Contest in any manner it may reasonably deem appropriate (with counsel of the Buyer’s choice), or applicability to in which case the Premises, of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord Sellers’ Representative (I) shall cooperate with Tenant the Buyer in such proceedingsdefense and make available to the Buyer and its Representatives all witnesses, provided that:
pertinent records, materials, and information in or under the Sellers’ Representative’s possession or control relating thereto as may be reasonably requested by the Buyer, and (iII) Landlord shall have the right, but not the obligation, to participate in such defense with separate counsel of its choosing at its sole cost and expense. The conduct of such defense by the Buyer shall not be subject construed to criminal penalty or to prosecution for be 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 waiver of the taking of action or furnishing of security by Landlord, Buyer’s right to indemnification with respect to 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 Contest.
(bD) Without limiting For the application avoidance of subsection (a)(i) above theretodoubt, Landlord the procedures relating to any Tax Contest 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 governed by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee this clause (as the case may bev) is required to plead or answer theretoand not by Section 7(d)(ii).
Appears in 1 contract
Sources: Stock Purchase Agreement (Travelzoo)
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 Company in writing of the commencement of any Tax audit or administrative or judicial proceeding and shall also separately notify the Company 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 Company 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 to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant notice or other document received from any taxing 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 respect 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 proceedingsasserted Tax liability.
(b) Without limiting The Company, 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 Company 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 Company elects to direct the Contest of subsection an asserted Tax liability, the Purchaser shall cooperate in all reasonable respects, at the Company's expense, in each phase of such Contest. If the Company 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 7.02, 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 Company; provided, however, that the Company's consent to settlement or compromise shall not be unreasonably withheld or delayed. In any event, each of the Purchaser and the Company may participate, at their own expense, in the Contest. If the Company 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 Company as the Company may designate to represent the Purchaser or its successor in the Contest insofar as the Contest involves an asserted Tax liability for which the Company would be liable under this Article VII, Landlord PROVIDED that the Company 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 for any periods ending after the Closing Date other than through the use of losses or credits arising in periods or portions thereof ending on or prior to the Closing 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. If, with respect to any proposed settlement referred to in clause (x) of the previous sentence, the Company 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 Company 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 Company.
(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 Company regarding the status of any kind such Contest that involves an asserted Tax liability for which the Company would be liable under this Article VII and provided, further, that, Purchaser shall not, without the prior written consent of the Company (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 mayBuyers agree to give written notice to Sellers of the receipt of any written notice by any Target Company, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, the validityBuyers, or applicability any of Buyers’ Affiliates which involves the assertion of any claim, or the commencement of any Action, in respect of which an indemnity may be sought by Buyers pursuant to this Article VI (a “Tax Claim”); provided that failure to comply with this provision shall not affect Buyers’ right to indemnification hereunder, except to the Premises, extent that Sellers are actually prejudiced thereby. Sellers and Buyers shall use commercially reasonable efforts to cooperate with each other in connection with the contest or resolution of any Requirement with which Tenant is obligated to comply pursuant Tax Claim, including making available (subject to the provisions of this LeaseSection 5.07) records relating to any Tax Claim and furnishing, and Landlord shall cooperate with Tenant in such proceedingsas promptly as practicable, provided that:
(i) Landlord shall not be subject to criminal penalty information reasonably requested for the preparation, prosecution, defense, 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 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 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 After the application Closing Date, Buyers shall control the contest and resolution of subsection any Tax Claim pursuant to Section 6.03(a) at Buyers’ sole expense; provided, however, that Buyers shall obtain the prior written consent of Sellers (a)(iwhich consent shall not be unreasonably withheld, conditioned, or delayed) above theretobefore entering into any settlement, Landlord compromise or other resolution of a Tax Claim or ceasing to defend a Tax Claim; and, provided further, that Sellers shall be deemed subject entitled to prosecution participate in, but not control, the defense of such claim and to employ counsel of their choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Sellers.
(c) In the case of a crime within the meaning of said subsectionTax Claim pursuant to Section 6.03(c), if Landlord(d), or (e) Sellers shall have the right, but not obligation, to exclusively control the contest and resolution of such Tax Claim at Sellers’ sole expense, including entering into any officersettlement, directorcompromise, partneror other resolution of such Tax Claim or ceasing to defend such Tax Claim; provided, memberhowever that Sellers shall obtain the prior written consent of Buyers (which consent shall not be unreasonably withheld, principal conditioned or employee delayed) before entering into any settlement, compromise or other resolution of Landlord individually, is charged with a crime Tax Claim. Sellers shall use good faith efforts to keep Buyers reasonably informed regarding the status of any kind or degree whateverTax Claim contemplated in this Section 6.05(c), whether by service but Buyers shall not be entitled to participate in such Tax Claim.
(d) In the case of a summons Tax Claim pursuant to Section 6.03(b), Sellers shall have the right, but not obligation, to exclusively control the contest and resolution of such Tax Claim; provided, however that Sellers shall obtain the prior written consent of Buyers (which consent shall not be unreasonably withheld, conditioned or otherwisedelayed) before entering into any settlement, unless compromise or other resolution of a Tax Claim; provided further, that, Buyers shall be entitled to participate in, but not control, the defense of such charge is withdrawn before Landlord or claim and to employ counsel of their choice for such officerpurpose, director, partner, member, principal or employee (as the case may be) is required to plead or answer theretofees and expenses of which separate counsel shall be borne solely by Buyers.
Appears in 1 contract
Contests. If a written claim for payment is made by any taxing authority against an Indemnitee for any Imposition with respect to which Lessee may be liable for indemnity pursuant to this Section 7.4, such Indemnitee shall give Lessee written notice of such claim promptly after its receipt, and shall furnish Lessee with copies of such claim and all other writings received from the taxing authority to the extent relating to such claim. The Indemnitee shall not pay such claim until at least thirty (30) days after providing Lessee with such written notice, unless required to do so by law or regulation. Subject to the conditions set forth in the following paragraph, Lessee shall be entitled to contest (acting through counsel selected by Lessee and reasonably acceptable to the Indemnitee), and control the contest of, any such claim with respect to an Imposition (a “Tax Claim”) if (i) the contest of the Tax Claim may be pursued in the name of Lessee; (ii) the contest of the Tax Claim must be pursued in the name of the Indemnitee but can be pursued independently from any other proceeding involving a tax liability of such Indemnitee for which Lessee is not responsible or (iii) the Indemnitee requests that Lessee control such contest. In the case of all other Tax Claims, subject to the conditions set forth in the following paragraph, the Indemnitee shall contest the Tax Claim if Lessee shall request that the Imposition be contested, and the following rules shall apply with respect to such contest:
(1) the Indemnitee shall control the contest of such Tax Claim in good faith taking into account any and all tax consequences to the Indemnitee, including, without limitation, those associated with a recharacterization of the transaction contemplated by the Operative Documents by any taxing authority (acting through counsel selected by the Indemnitee and reasonably acceptable to Lessee),
(2) the Indemnitee shall not otherwise settle, compromise or abandon such contest without Lessee’s prior written consent except as provided in the concluding paragraph to this Section 7.4(b). In either case, the party conducting such contest shall consult with and keep reasonably informed the other party and its designated counsel with respect to such Tax Claim, shall provide the other party with copies of any reports or claims issued by the relevant auditing agents or taxing authority as well as related portions of tax returns, and shall consider and consult in good faith with the other party regarding any request, including but not limited to requests (a) Tenant mayto resist payment of Impositions if practical and (b) not to pay such Impositions except under protest if protest is necessary and proper (but the decisions regarding what actions are to be taken shall be made by the controlling party in its sole judgment). Notwithstanding the foregoing, at its expense no contest with respect to a Tax Claim shall be required or permitted and Lessee shall be required to pay the applicable Impositions without 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 thatunless:
(i1) Landlord within thirty (30) days after notice by the Indemnitee to Lessee of such Tax Claim, Lessee shall request in writing to the Indemnitee that such Tax Claim be contested; provided that if a shorter period is required for taking action with respect to such Tax Claim and the Indemnitee notifies Lessee of such requirement, Lessee shall use reasonable efforts to request such contest within such shorter period,
(2) no Lease Event of Default has occurred and is continuing,
(3) there is no risk of sale, forfeiture or loss of, or, except in the case of a Tax Claim involving only disputed state or local property or ad valorem taxes, the creation of a Lien on Lessee’s interest in, the Leased Property as a result of such Tax Claim (other than a Permitted Lien); provided that this clause (3) shall not be subject apply if the Lessee posts security satisfactory to the Indemnitee in its sole discretion, or the Imposition is fully paid in either manner specified in clause (5) below,
(4) there is no risk of imposition of any criminal 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 penalties,
(5) if such contest involves payment of such contestImposition, Lessee shall either advance to the Indemnitee on an interest-free basis, and with no after-tax cost to such Indemnitee, the amount of the Imposition (a “Tax Advance”) or pay such Indemnitee the amount payable by Lessee pursuant to this Section 7.4 with respect to such Imposition,
(6) Lessee agrees to pay (and pay on demand) and with no after-tax cost to such Indemnitee, all reasonable costs, losses and expenses incurred by the Indemnitee in connection with the contest of such claim (including all reasonable legal, accounting and investigatory fees and disbursements),
(7) except in the case of a Tax Claim involving only disputed state or local property or ad valorem taxes, (A) the Indemnitee has been provided at Lessee’s sole expense with an opinion, reasonably acceptable to such Indemnitee, of independent tax counsel of recognized standing selected by Lessee and reasonably acceptable to the Indemnitee to the effect that there is a reasonable basis for contesting such Tax Claim; and (B) the amount of the disputed federal Taxes in controversy, taking into account the amount of all similar and logically related Impositions with respect to the transactions contemplated by the Operative Documents that could be raised in any other year (including any future year) not barred by the statute of limitations, exceeds $50,000;
(ii) Tenant 8) Lessee shall defendacknowledge in writing its liability to indemnify the Indemnitee hereunder, indemnify on and hold harmless Landlord from subject to the terms and against any and all actionsconditions hereof, 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 in respect of such non-compliance or contest;
(iii) such non-compliance or claim if the contest shall is not constitute or result in any violation of any superior lease or superior mortgagesuccessful, 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
(iv9) Tenant shall keep Landlord advised as in the case of a judicial appeal, no appeal to the status U.S. Supreme Court shall be required of the Indemnitee or shall be permitted by Lessee. Notwithstanding anything to the contrary contained in this Section 7.4, the Indemnitee at any time may elect to decline to take any action or any further action with respect to a Tax Claim and may in its sole discretion settle or compromise any contest with respect to such Tax Claim without Lessee’s consent if the Indemnitee:
(1) waives its right to any indemnity payment by Lessee pursuant to this Section 7.4 in respect of such proceedings.Tax Claim (and any other claim for Impositions with respect to any other taxable year and/or with respect to any other claim, the contest of which is effectively precluded by the Indemnitee’s declination to take action with respect to the Tax Claim), and
(b2) Without limiting promptly repays to Lessee any Tax Advance and any amount paid to such Indemnitee under this Section 7.4 in respect of such Taxes, but not any costs or expenses with respect to any such contest. Except as provided in the application of subsection (a)(i) above theretopreceding sentence, Landlord any such waiver shall be deemed subject without prejudice to prosecution for a crime within the meaning rights of said subsection, if Landlord, or the Indemnitee with respect to 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 Tax Claim.
Appears in 1 contract
Contests. (ai) Tenant mayWith respect to any Pre-Closing Tax Return, Seller and its duly appointed representatives shall have the sole right, at its expense contestexpense, by appropriate proceedings prosecuted diligently to supervise or otherwise coordinate any examination process and in good faithto negotiate, resolve, settle or contest any asserted Tax deficiencies or assert and prosecute any claims for refund. The foregoing notwithstanding, without the validityexpress written consent of Buyer or any of the Companies, 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 unreasonably withheld or delayed, Seller shall not file any amended Tax Return, settle any Tax claim or assessment, or surrender any right to criminal penalty or to prosecution for claim a crime nor shall refund of Tax, if such action could have the Premises or any part thereof be subject to being condemned or vacated, by reason effect of non-compliance or otherwise by reason of such contest;increasing Buyer Tax Liabilities.
(ii) Tenant With respect to any other Tax Return of any of the Companies, Buyer, the Companies and their duly appointed representatives shall defendhave the sole right, indemnify at its expense, to supervise or otherwise coordinate any examination process and hold harmless Landlord from to negotiate, resolve, settle or contest any asserted Tax deficiencies or assert and against prosecute any and all actionsclaims for refund. The foregoing notwithstanding, proceedingswithout the express written consent of Seller, claimswhich consent shall not be unreasonably withheld or delayed, deficienciesneither Buyer nor any of the Companies shall file any amended Tax Return, judgmentssettle any Tax claim or assessment, suitsor surrender any right to claim a refund of Tax, losses, obligations, penalties, liabilities, damages, costs and expenses (including court costs and reasonable legal fees and disbursements) which Landlord shall suffer by reason if such action could have the effect of such non-compliance or contest;increasing Seller Tax Liabilities.
(iii) such non-compliance or contest shall not constitute or result in any violation Each party hereto shall, within thirty (30) days (unless action is required sooner, then as soon as practicable), notify the other of the assertion of any superior lease claim or superior mortgagethe commencement of any suit, action, proceeding, investigation or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition audit with respect to the operations of the taking Company that is the subject of action or furnishing of security by Landlordthis Section 3.06, such action and shall be taken and such security shall be furnished at provide the expense of Tenant; and
other party with copies (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 deletion of said subsection, if Landlord, or any officer, director, partner, member, principal or employee nonrelevant information) of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service of a summons or otherwise, unless all correspondence 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
Sources: Tax Agreement (Bedding Experts 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. 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. Buyers shall promptly notify the Equityholder Representative following receipt of any notice of audit or other proceeding relating to any Tax Return of any Group Company that includes a Pre-Closing Tax Period (athe “Prior Period Returns”). The Equityholder Representative shall control any and all audits or other proceedings and litigation (a “Tax Contest”) Tenant mayrelating to any Prior Period Return, at its expense contestincluding the filing of an amended Tax Return, by appropriate proceedings prosecuted diligently and in good faithother than Prior Period Returns relating to any Straddle Period. With respect to any Tax Contest that it controls, 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:
Equityholder Representative (i) Landlord shall give prompt notice to Buyers of any Tax adjustment proposed in writing pursuant to such Tax Contest, (ii) shall afford Buyers the opportunity to participate in the conduct of such Tax Contest, including without limitation the right to participate in conferences with Tax Authorities and submit pertinent material in support of Buyers’ position, and (iii) shall not settle such Tax Contest without Buyers’ consent, which shall not be subject to criminal penalty unreasonably withheld, conditioned or to prosecution for a crime nor delayed. MSO Buyers and the Equityholder Representative shall the Premises or any part thereof be subject to being condemned or vacated, by reason have joint control 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 actionsTax Contests relating to a Tax Return for a Straddle Period, proceedingsincluding the filing of an amended Tax Return for such Straddle Period; provided, claimsthat neither the Equityholder Representative nor Buyers shall settle or compromise any Tax Contest relating to a Tax Return for a Straddle Period without the consent of the other Party, 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, conditioned or result delayed. To the extent permitted under Applicable Law, the AHMS Equityholders shall make, or cause to be made, an election under Code section 6226 and Treasury Regulations thereunder with respect to any Tax Contest in any violation respect of AHMS in respect of any superior lease or superior mortgage, or if such superior lease and/or superior mortgage shall permit such nonPre-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
Closing Tax Period (iv) Tenant shall keep Landlord advised as a “Push-Out Election”). Notwithstanding anything to the status contrary contained in this Agreement, CFC IPA shall have sole and absolute control over any Tax Contest to the extent such Tax Contest relates to Taxes of CFC IPA or to the extent such proceedingsTax Contest relates to Seller 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: Asset and Equity Purchase Agreement (Apollo Medical Holdings, Inc.)
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 and in good faithor compromise, the validity, or applicability to the Premises, of any Requirement with Claim for which Tenant indemnification is obligated to comply pursuant to the provisions of sought under this LeaseSection 12.1, and Landlord the Indemnitee shall cooperate cooperate, at the Lessee's expense, with Tenant all reasonable requests of the Lessee in such proceedingsconnection therewith, provided that:
that the Lessee shall not have the right without the consent of the Indemnitee to defend, contest or compromise any claim with respect to such Indemnitee (i) Landlord if a Lease Event of Default shall not have occurred and 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 vacatedcontinuing, by reason of non-compliance or otherwise by reason of such contest;
(ii) Tenant shall defendif such proceeding involves any material danger of the sale, indemnify and hold harmless Landlord from and against any and all actionsforfeiture or loss of the Undivided Interest, 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 a realistic possibility of criminal sanctions or criminal liability 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. The Lessee will not be required to acknowledge liability as a condition to exercising its contest rights hereunder unless the Lessee assumes control of such contest. With respect to any Claim, liability for which the Lessee shall have acknowledged to the relevant Indemnitee in writing, in the event that in the course of the investigation or defense of such Claim, the Lessee shall in good faith reasonably determine that it is not liable for indemnification with respect thereto, it may give notice to the applicable Indemnitee of such fact; and
, in such case, any acknowledgment therefore made by the Lessee of its liability with respect to such Claim shall be deemed revoked, and the Lessee may thereupon cease to defend such Claim, provided that (ivi) Tenant it shall have given the Indemnitee reasonable prior notice of its intention to renounce such acknowledgment, (ii) the Lessee's conduct regarding the defense of such Claim or any decision to withdraw from such defense shall not materially prejudice or have materially prejudiced the Indemnitee's ability to contest such Claim (taking into account, among other things, the time of the Lessee's withdrawal and the theory or theories upon which the Lessee shall have based its defense), and (iii) the Lessee shall have given such Indemnitee all materials, documents and records relating to its defense of such Claim as such Indemnitee shall have reasonably requested in connection with the assumption by such Indemnitee of the defense of such Claim at the cost and expense of such Indemnitee unless it is determined that the Lessee is required to indemnify such Indemnitee for such Claim, in which case at the cost and expense of the Lessee. In the event that the Lessee shall cease to defend any Claim pursuant to the preceding sentence, the Lessee shall indemnify each Indemnitee to the extent that the actions of the Lessee in defending such Claim or the manner or time of the Lessee's election to withdraw from the defense of such Claim shall have caused such Indemnitee to incur any loss, cost, liability or expense which such Indemnitee might not have incurred had the Lessee not ceased to defend such Claim in such manner or such time; provided, however, that the Lessee shall not be required to indemnify such Indemnitee to the extent that the Lessee shall have proven (in a judicial proceeding or otherwise) that neither its manner of defending such Claim nor the manner of time of its withdrawal from the defense of such Claim caused such loss, cost, liability or expense. 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 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 shall keep the Lessee fully apprised of the status of such proceeding and shall provide the Lessee with all information, including the receipt of all settlement offers, with respect to such proceeding as such Indemnitee shall reasonably request. Where 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 written opinion of counsel to such Indemnitee an actual or any officer, director, partner, member, principal potential material conflict of interest exists where it is advisable for such Indemnitee to be represented by separate counsel or employee of Landlord individually, is (ii) such Indemnitee has been indicted or otherwise charged in a criminal complaint 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 or otherwiseLease Event of Default, the Lessee shall not compromise any Claim without the consent of the applicable Indemnitee unless such charge Claim is withdrawn before Landlord simultaneously discharged, such consent not to be unreasonably withheld. Notwithstanding anything to the contrary contained in this Section 12.1, to the extent the defense or settlement of any Claim in respect of which an Indemnitee is entitled to indemnification hereunder is governed by the terms of the Operating Agreement, such officerdefense or settlement shall be governed by the 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 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
Sources: Participation Agreement (Lone Star Energy Plant Operations Inc)
Contests. (a) Tenant mayBuyer agrees to give written notice to Sellers of the receipt of any written notice by the Company, at its expense contesteach Subsidiary, by appropriate proceedings prosecuted diligently and in good faith, Buyer or any of Buyer’s Affiliates which involves the validityassertion of any claim, or applicability the commencement of any Action, in respect of which an indemnity may be sought by Buyer pursuant to this ARTICLE VII (a “Tax Claim”); provided, that failure to comply with this provision shall not affect Buyer’s right to indemnification hereunder except to the Premisesextent Sellers are materially prejudiced thereby. Except as provided in the following sentence, Buyer shall control the contest or resolution of any Requirement with Tax Claim; provided, however, that Buyer shall obtain the prior written consent of 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 unreasonably withheld or delayed) before entering into any settlement of a claim or ceasing to criminal penalty defend such claim; and, provided further, that Sellers shall be entitled to participate in the defense of such claim and to employ counsel of their choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Sellers. Sellers shall control the contest or resolution of any Tax Claim relating exclusively to prosecution for a crime nor shall Pre-Closing Tax Period of the Premises Company or any part thereof Subsidiary of the Company; provided, however, that if such Tax Claim could have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period, then Sellers shall obtain the prior written consent of Buyer (which consent shall not be subject to being condemned unreasonably withheld or vacated, by reason of non-compliance or otherwise by reason delayed) before entering into any settlement of such contest;
(ii) Tenant Tax Claim or ceasing to defend such Tax Claim and Buyer shall defendbe entitled to participate in the defense of such Tax Claim 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 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 the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsborne solely by Buyer.
(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: Unit Purchase Agreement (Twinlab Consolidated Holdings, Inc.)
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 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. (a) Tenant mayIf any Taxing Authority asserts a Tax Claim in respect of the Company or any of its Subsidiaries, 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 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 VII, 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 proceedingsTaxing Authority.
(b) Without limiting Seller shall have the application exclusive right to control, at its 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 of its Subsidiaries for any taxable period that ends on or before the Closing Date; provided, however, that with respect to any Tax Proceeding solely in respect of the Company or any of its Subsidiaries that would reasonably be expected to have an adverse impact that is material on Buyer and its Affiliates including the Company and its Subsidiaries after Closing, Seller shall consult with Buyer before taking any significant action in connection with such Tax Proceeding.
(a)(ic) above theretoIn the case of a Tax Proceeding for a Straddle Period of the Company or any of its Subsidiaries, Landlord Buyer shall have the right to control, at its own expense, such Tax Proceeding; provided, however, that (i) Buyer shall provide Seller with a timely and reasonably detailed account of each phase of such Tax Proceeding, (ii) Buyer shall consult with Seller before taking any significant action in connection with such Tax Proceeding, (iii) 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, (iv) Seller shall be deemed subject entitled to prosecution for a crime within participate in such Tax Proceeding, at its own expense, and (v) Buyer shall not settle, compromise or abandon any such Tax Proceeding without obtaining the meaning prior written consent of said subsectionSeller, if Landlordwhich consent shall not be unreasonably withheld, conditioned or delayed.
(d) Buyer shall have the exclusive right to control, at its own expense, any Tax Proceeding involving the Company or any officerof its Subsidiaries (other than any Tax Proceeding described in Section 7.6(b) or (c)); provided, directorhowever, partner, member, principal that if such Tax Proceeding would reasonably be expected to have an adverse effect on Seller or employee any of Landlord individually, its Affiliates that is charged material Buyer shall consult with a crime of Seller before taking any kind or degree whatever, whether by service of a summons or otherwise, unless significant action in connection with 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 Proceeding.
Appears in 1 contract
Sources: Stock Purchase Agreement (PNC Financial Services Group Inc)
Contests. Parent agrees to give prompt written notice to Shareholder Representative of the receipt of any written notice by the Company, PTC, Parent or any of Parent’s Affiliates which involves the assertion of any claim, the commencement of any Action, proposed adjustment, assessment, audit, examination or other administrative or court proceeding in respect of which an indemnity may be sought by Parent pursuant to Article VIII (a “Tax Claim”) and shall describe in reasonable detail (to the extent known by Parent) the facts constituting the basis for such Tax Claim, the nature of the relief sought, and the amount of the claimed Losses (including Taxes), if any (the “Tax Claim Notice”), provided, however, that the failure or delay to so notify Shareholder Representative shall not relieve Shareholders of any obligation or liability that Shareholders may have to Buyer except to the extent that Shareholders were prejudiced thereby. Solely with respect to Tax Claims for income Taxes for a Pre-Closing Tax Period payable by the Shareholders under applicable Tax laws, excluding, for the avoidance of doubt, any Tax Claims relating to entity level Taxes of the Company or PTC, the Shareholder Representative (a) Tenant mayshall assume and control the defense of such Tax Claim, (b) shall bear its own costs and expenses, (c) shall be entitled to engage its own counsel, and (e) may (i) pursue or forego any and all administrative appeals, Proceedings, hearings and conferences with any Governmental Authority, (ii) either cause payment of the Tax claimed or sue for refund where applicable Law permits such refund suit, or (iii) contest, settle or compromise the Tax Claim in any permissible manner, provided, however, that the Shareholder Representative shall not settle or compromise (or take other actions described herein with respect to) any Tax Claim without the prior written consent of Parent (such consent not to be unreasonably withheld, delayed or conditioned) if such settlement or compromise would reasonably be expected to adversely affect the Tax liability of the Surviving Corporation, Parent or any of Parent’s Affiliates for any Tax period ending after the Closing Date. With respect to a Tax Claim controlled by the Shareholder Representative, the Shareholder Representative shall (a) keep Parent reasonably informed of all material developments and events relating to such Tax Claim (including promptly forwarding copies to Parent of any related correspondence, and shall provide Parent with an opportunity to review and comment on any material correspondence before Shareholder Representative sends such correspondence to any taxing authority), (b) consult with Parent in connection with the defense or prosecution of any such Tax Claim, and (c) provide such cooperation and information as Parent shall reasonably request, and Parent shall have the right to participate, at its expense contestown expense, by appropriate proceedings prosecuted diligently and in good faith, (but not control) the validity, defense of such Tax Claim (including participating in any discussions with the applicable taxing authorities regarding such Tax Claim). Parent shall control the contest or applicability to the Premises, resolution of any Requirement with which Tenant is obligated to comply Tax Claim not controlled by the Shareholder Representative pursuant to the provisions preceding two sentences; provided, however, that Parent shall obtain the prior written consent of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
Shareholder Representative (i) Landlord which consent shall not be subject unreasonably conditioned, withheld or delayed) before entering into any settlement of a claim or ceasing to criminal penalty or defend such claim; and, provided further, that Shareholder Representative shall be entitled to prosecution for a crime nor shall participate in (including participating in any discussions with the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason applicable taxing authorities regarding such Tax Claim) the 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 by Shareholder Representative and not Parent and in connection therewith Parent shall provide such cooperation and information as Shareholder Representative shall reasonably request and in addition Parent shall keep Shareholder Representative reasonably informed of all material developments and events relating to such Tax Claim (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 promptly forwarding copies to Shareholder Representative of any superior lease related correspondence, and shall provide Shareholder Representative with an opportunity to review and comment on any material correspondence before ▇▇▇▇▇▇ sends such correspondence to any taxing authority), and consult with Shareholder Representative in connection with the defense 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 theretoTax Claim.
Appears in 1 contract
Sources: Merger Agreement (Northwest Pipe Co)
Contests. (a) Tenant mayEach Party 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, at examination or proceeding by a Governmental Authority in respect of which an indemnity may be sought pursuant to this Article VI (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 expense contest, by appropriate proceedings prosecuted diligently and in good faith, the validity, or applicability obligations under this Article VI except to the Premises, of any Requirement with which Tenant is obligated to comply pursuant to extent 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 other party can demonstrate actual prejudice 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 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 Seller (or Affiliate thereof) shall control any Tax Claim related to Consolidated Returns and Taxes of the application Company Group to be reported on or related to a Consolidated Return. Seller shall keep Buyer fully and timely informed with respect to the commencement, status and nature of subsection any such Tax Claim related to Taxes of the Company Group. Seller shall, in good faith, allow Buyer to make comments to Seller regarding the conduct of or positions taken in any such proceeding. Buyer shall have the right to consent prior to any settlement with respect to (a)(ior abandonment of) above theretoany such Tax Claim related to Taxes of the Company Group (provided such consent cannot be unreasonably withheld, Landlord conditioned or delayed).
(c) Buyer (or Affiliate thereof) shall be deemed control any Tax Claim related to Taxes of the Company Group with respect to a Pre-Closing Tax Period and Straddle Period other than Tax Claims subject to prosecution for a crime within Section 6.07(b). Buyer shall keep Seller fully and timely informed with respect to the meaning commencement, status and nature of said subsectionany such Tax Claim. Buyer shall, if Landlordin good faith, allow Seller to make comments to Buyer regarding the conduct of or positions taken in any such proceeding. Seller shall have the right to consent prior to any settlement with respect to (or abandonment of) any such Tax Claim (provided such consent cannot 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 1 contract
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. (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, inquiry or applicability administrative or judicial proceeding or of any demand or claim on the Purchaser, its Affiliates, the ▇▇▇▇▇▇ Group which, if determined adversely to the Premisestaxpayer or after the lapse of time, could be grounds for indemnification by the Seller under Section 7.02 (a “Contest”). Such notice shall contain factual information (to the extent known to the Purchaser, its Affiliates, the Company) describing the asserted Tax Liability in reasonable detail and shall include copies of any Requirement with which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant notice or other document 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 respect 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 proceedingsasserted Tax Liability.
(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 case of any kind Contest that relates solely to any Pre-Closing Tax Period, the Seller shall have the right (but not the duty), at their expense, to control the conduct of such Contest, through counsel of their own choosing. If the Seller elect to direct a Contest that relates solely to any Pre-Closing Tax Period, the Seller shall within 10 days of receipt of the notice of any such Contest notify the Purchaser in writing of its intent to do so, and the Purchaser shall cooperate and shall cause the ▇▇▇▇▇▇ Group to fully cooperate, at the Seller’s expense, in each phase of such Contest; provided, however, (i) the Seller shall not enter into any settlement or degree whateverotherwise compromise any such Contest without the prior written consent of the Purchaser, whether which consent shall not be unreasonably conditioned, withheld or delayed, (ii) the Purchaser shall have the right (but not the duty) to participate in the defense of such Contest and to employ counsel, at its own expense, separate from counsel employed by service the Seller, and (iii) the Seller shall keep the Purchaser informed with respect to the commencement, status and nature of a summons any such Contest, and shall reasonably cooperate with the Purchaser and consult with it regarding the conduct of or otherwise, unless positions taken in any such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee Contest.
(as c) In the case may beof any Contest that does not relate solely to any Pre-Closing Tax Period, the Purchaser shall have the right, at its expense, to control the conduct of such Contest, through counsel of its own choosing; provided, however, (i) is required the Purchaser shall not enter into any settlement or otherwise compromise any such Contest that could affect the indemnification by the Seller under Section 7.02 without the prior written consent of the Seller, which consent shall not be unreasonably conditioned, withheld or delayed, (ii) the Seller shall have the right (but not the duty) to plead participate in the defense of such Contest and to employ counsel, at their own expense, separate from counsel employed by the Purchaser, and (iii) the Purchaser shall keep the Seller informed with respect to the commencement, status and nature of any such Contest, and shall reasonably cooperate with the Seller and consult with them regarding the conduct of or answer theretopositions taken in any such Contest.
Appears in 1 contract
Contests. (a) Tenant mayBuyer agrees to give written notice to Sellers of the receipt by an Acquired Company, at its expense contestBuyer or any of Buyer’s Affiliates of any written notice which involves the assertion of any claim, or the commencement of any Action, by appropriate proceedings prosecuted diligently and a Governmental Authority or other Person who is not a party to this Agreement (or an Affiliate of a party to this Agreement or a Representative of any of the foregoing) in good faithrespect of which an indemnity claim may be sought by Buyer pursuant to Section 6.03(a) (a “Tax Claim”); provided, the validitythat failure to comply with this provision shall not affect Buyer’s right to indemnification hereunder, except as provided in Section 6.09 or applicability otherwise 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 extent that Sellers forfeit substantive 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 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 Sellers shall control the application contest or resolution of subsection (a)(i) above theretoany Tax Claim; provided, Landlord however, that if such Tax Claim could reasonably be expected to adversely affect the Company, Buyer or their Affiliates for any Post-Closing Tax Period, Sellers shall not settle any Tax liabilities arising out of such Tax Claim without the written consent of Buyer, which consent shall not be unreasonably conditioned, withheld or delayed; and provided further, that Buyer and the Company, at their expense, shall have the right to participate with Sellers in the defense of such Tax Claim and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel shall be deemed subject borne solely by Buyer. If Sellers so request, Buyer shall take all reasonable actions requested by Sellers to prosecution for a crime within permit Sellers, at their expense, to control the meaning defense of said subsectionsuch Tax Claim. Notwithstanding the foregoing, if Landlord, or any officer, director, partner, member, principal or employee Sellers do not promptly notify Buyer in writing of Landlord individually, is charged with a crime of any kind or degree whatever, whether by service their election to assume the defense of a summons Tax Claim following notice thereof, Buyer shall control the contest or otherwiseresolution of such Tax Claim; provided, unless however, that Buyer shall obtain the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such charge is withdrawn Tax Claim or ceasing to defend such Tax Claim; and, provided further, that Sellers shall be entitled to participate in the defense of such Tax Claim and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel shall be borne solely by Sellers. Cooperation and Exchange of Information . Sellers and Buyer shall provide each other with such cooperation and information as either of them reasonably may request of the other in filing any Tax Return pursuant to this Article VI or in connection with any audit or other proceeding in respect of Taxes of the Companies. Such cooperation and information shall include providing copies of relevant Tax Returns or portions thereof, together with accompanying schedules, related work papers and documents relating to rulings or other determinations by tax authorities. Each of Sellers and Buyer shall retain all Tax Returns, schedules and work papers, records and other documents in its possession relating to Tax matters of the Companies for any taxable period beginning before Landlord the Closing Date until the expiration of the statute of limitations of the taxable periods to which such Tax Returns and other documents relate, without regard to extensions except to the extent notified by the other party in writing of such extensions for the respective Tax periods. Prior to transferring, destroying or such officerdiscarding any Tax Returns, directorschedules and work papers, partnerrecords and other documents in its possession relating to Tax matters of the Company for any taxable period beginning before the Closing Date, member, principal Sellers or employee Buyer (as the case may be) is shall provide the other party with reasonable written notice and offer the other party the opportunity to take custody of such materials. Tax Treatment of Indemnification Payments . Any indemnification payments pursuant to this Article VI shall be treated as an adjustment to the Purchase Price by the parties for Tax purposes, unless otherwise required to plead or answer theretoby Law.
Appears in 1 contract
Contests. (a) Tenant maySubject to Section 9.7(c), the Shareholders’ Representative shall, at its expense contesthis election, by appropriate proceedings prosecuted diligently have the right to represent, settle and dispose of the Company’s or any of the Subsidiaries’, as the case may be, interests in good faith, the validity, any Contest relating to any Tax matter with respect to any Tax period (or applicability portion thereof) ending on or prior to the Premises, Year End Date (including the “S short year” (within the meaning of Treasury Regulation Section 1.1362-3) or with respect to any Requirement with which Tenant is obligated to comply pursuant contest pertaining to the provisions subject matter of this LeaseSection 3.7(m) in respect of the transactions contemplated hereby, and Landlord shall cooperate with Tenant in such proceedingsemploy counsel of his choice at the Shareholders’ expense and to control the conduct, provided that:
(i) Landlord shall not be subject to criminal penalty settlement 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 disposition 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 proceedingsContest.
(b) Without limiting Unless the application Purchaser or the Surviving Corporation has previously received written notice from the Shareholders’ Representative of subsection (a)(i) above theretothe existence of such a Contest, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsectionPurchaser or the Surviving Corporation, 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 give written notice to the Shareholders’ Representative of the existence of any Contest relating to a Tax matter described in Section 9.7(a) is required within ten days from the receipt by the Purchaser or the Surviving Corporation after the Closing Date of any written notice of such Contest, but no failure to plead give such notice shall relieve the Shareholders of any liability hereunder except to the extent, if any, that the rights of the Shareholders with respect to such claim are materially prejudiced. Unless the Shareholders’ Representative has previously received written notice from the Surviving Corporation of the existence of such Contest, the Shareholders’ Representative shall give written notice to the Surviving Corporation of the existence of any Contest within ten days from the receipt by the Shareholders’ Representative of any written notice of such Contest.
(c) The Purchaser, the Company and the Subsidiaries, 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 as reasonably requested and in a prompt and timely manner in connection with any Contest. Such cooperation shall include, but not be limited to, making available on a reasonable basis 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 answer thereto.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 Shareholders’ Representative shall consult with the Surviving Corporation regarding any such Contest and shall allow the Purchaser and the Surviving Corporation to participate in any such Contest concerning a Tax matter described in
Appears in 1 contract
Sources: Stock Purchase Agreement and Plan of Merger (Equinox Group Inc)
Contests. (aA) Tenant mayIf a written claim shall be made against and received by any Indemnitee for any Tax for which Borrower is obligated to indemnify pursuant to this Section 6(b), such Indemnitee 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 shall not release Borrower from any of its obligations to indemnify under Section 6 hereof unless, and only to the extent that, such failure effectively precludes Borrower’s contest rights. To the extent permitted under applicable law, such Indemnitee will not make any payments with respect to such claim for at least 30 days after giving notice of such claim to Borrower.
(B) If requested by Borrower in writing within 30 days after its receipt of such notice or such shorter period as may be required by applicable law, such Indemnitee shall, at the expense of Borrower and subject to subparagraph (C) below, contest the validity, applicability or amount of such Taxes by, in the case of an Indemnitee-Controlled Contest, in such Indemnitee’s sole discretion or, in the case of a Borrower-Controlled Contest, in Borrower’s sole discretion, (1) resisting payment thereof if practicable, (2) not paying such Tax except under protest, (3) if protest is necessary and proper, and if payment of such Tax is made, using reasonable efforts to obtain a refund thereof, in appropriate administrative and judicial proceedings, and (4) in the case of an Indemnitee-Controlled Contest, considering in good faith any other reasonable action as Borrower may reasonably request. Each Indemnitee shall consult in good faith with Borrower and Borrower’s counsel, and Borrower shall consult in good faith with such Indemnitee and its expense contestcounsel in the case of a Borrower-Controlled Contest. 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.
(C) In no event shall an Indemnitee be required, or Borrower permitted, to contest the imposition of any Tax for which Borrower is obligated pursuant to this Section 6(b) unless (1) Borrower shall have agreed to pay and shall promptly be paying on request all reasonable costs and expenses that such Indemnitee incurs in contesting such claim or arising out of or relating to such contest (including legal fees, accounting fees, and disbursements, including those on appeal, if any); (2) 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 (i) either not yet due or being contested in good faith by appropriate proceedings prosecuted diligently and (ii) for which such reserves, if any, as are required to be provided under generally accepted accounting principles have been provided by Borrower, and there is no risk of criminal penalties; (3) 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 Indemnitee against any additional net after-Tax cost to such Indemnitee of such advance; (4) if requested by the Indemnitee in writing, such Indemnitee shall have received an opinion of independent Tax counsel selected by Borrower and reasonably acceptable to such Indemnitee and furnished at Borrower’s sole expense to the effect that a Realistic Possibility of Success exists for contesting such claim (or, in the case of an appeal of an adverse judicial determination, a written opinion from such independent Tax counsel to the effect that it is more likely than not that such adverse judicial determination will be reversed or substantially modified); (5) Borrower shall have delivered to such Indemnitee a written acknowledgment of Borrower’s obligation to indemnify such Indemnitee 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 6(b) with respect to such Tax; (6) if a Specified Default or Event of Default shall have occurred and be continuing, Borrower shall have provided security for its obligation hereunder satisfactory to the Indemnitee 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 provisions for payment of such amounts determined by the Indemnitee in its sole discretion; (7) the aggregate amount of all indemnity payments that Borrower may be required to make to such Indemnitee with respect to such claim (or similar or related claims) is at least $60,000; and (8) the claim is not for a Tax the imposition of which has been previously contested by, or at the request of, 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 PremisesIndemnitee 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.
(D) If any Indemnitee shall obtain a refund of all or any part of any Requirement with Tax paid by Borrower, such Indemnitee shall pay Borrower, but not before Borrower shall have made all payments theretofore due to such Indemnitee pursuant to this Section 6(b) and any other payments theretofore due such Indemnitee under any of the Operative Documents, an amount equal to the amount of such refund (net of any Taxes imposed thereon), including interest received and attributable thereto (net of any Taxes imposed thereon) plus, if Borrower has paid an amount pursuant to the first sentence of Section 6(b)(iii)(A), any net Tax benefit (or minus any net Tax detriment) realized by such Indemnitee as a result of any refund received, and payment made, by such Indemnitee pursuant to this sentence; provided that the Indemnitee shall not be obligated to pay an amount under the preceding sentence to the extent that such amount would exceed the amount of such Taxes paid, reimbursed or advanced by Borrower to such Indemnitee (other than the cost of the contest thereof); 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 Indemnitee pursuant to this Section 6(b). If any Indemnitee shall have paid Borrower any refund of all or part of any Tax paid by Borrower and it is subsequently determined that such Indemnitee was not entitled to the refund, such determination shall be treated as the imposition of a Tax for which Tenant Borrower is obligated to comply indemnify such Indemnitee pursuant to the provisions of this LeaseSection 6(b) without regard to the exclusions set forth in Section 6(b)(ii) (other than subparagraphs (4), (11) and Landlord (12) thereof). Provided no Specified Default or Event of Default has occurred and is continuing, an Indemnitee shall cooperate with Tenant in not settle any such proceedingsclaim or contest pursuant to this provision without the written consent of Borrower, provided that:
(i) Landlord which consent shall not be subject unreasonably withheld, conditioned or delayed; provided, that an Indemnitee may settle at any time without the consent of Borrower if the Indemnitee waives (by written notice to criminal penalty Borrower) the payment by Borrower of an indemnity in respect of such issue and any related issue the contest of which is effectively foreclosed by the settlement of such issue, including any payment arising from such issue in subsequent years or to prosecution for a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, which by reason of nonthe fact that such issue is of a continuing nature, and promptly pays to Borrower any Tax previously paid or any interest-compliance or otherwise free loan advanced by reason Borrower (other than expenses of such contest;
(iicontests) 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 with respect to 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 proceedingsissue.
(bE) Without limiting the application of subsection (a)(iNothing contained in this Section 6(b)(iv) above thereto, Landlord shall be deemed subject require any Indemnitee to prosecution for a crime within the meaning of said subsection, if Landlordcontest, or any officerpermit Borrower to contest in the name of such Indemnitee, director, partner, member, principal or employee of Landlord individually, is charged with a crime claim that such Indemnitee would otherwise be required to contest pursuant to this Section 6(b)(iv) if such Indemnitee shall waive payment by Borrower of any kind or degree whateveramount that might otherwise be payable by Borrower under this Section 6(b) in connection with such claim (other than the costs of contest previously incurred), 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 nor shall any Indemnitee be required to plead or answer theretopursue any appeal to the United States Supreme Court.
Appears in 1 contract
Sources: Loan Agreement (Skywest Inc)
Contests. (a) Tenant mayEffective upon the consummation of the Closing, at its expense contest, by appropriate proceedings prosecuted diligently and in good faithBuyer, the validityCompany and its Subsidiaries, on the one hand, and Seller and its Affiliates, on the other hand, shall promptly notify each other upon receipt by such party of written notice of the assertion of any claim, or applicability the commencement of any audit, suit, action or proceeding with respect to Taxes in respect of which indemnity may be sought under Section 7.4(a) (collectively, a “Tax Claim”); provided, however, that the failure on the part of the Buyer to so notify Seller shall not limit any indemnification obligations of Seller under Section 7.4 (except to the Premises, of any Requirement with which Tenant is obligated to comply pursuant to extent such failure actually and materially prejudices 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 defense 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 Seller may, at its own expense, assume control of the application defense of subsection any Tax Claim with respect to Taxes relating to a Pre-Closing Tax Period (a)(i) above theretoexcluding any Tax Claim with respect to a Straddle Tax Period); provided, Landlord however, that Seller shall be deemed subject have first notified Buyer in writing of Seller's intention to prosecution for a crime within do so and of the meaning identity of said subsectioncounsel, if Landlordany, chosen by Seller in connection therewith; provided, further, that Buyer shall have the right, at its own expense, to participate in such Tax Claim and to employ counsel of its choice for purposes of such participation. In no case shall Seller settle or any officerotherwise compromise such Tax Claim without Buyer’s prior written consent, directorwhich shall not be unreasonably withheld, partner, member, principal conditioned or employee of Landlord individually, is charged with a crime delayed.
(c) Buyer shall control the defense of any kind Tax Claim not controlled by Seller pursuant to Section 7.5(b) (including any Tax Claim with respect to a Straddle Tax Period); provided, however, that Seller shall have the right to participate in such Tax Claim and, at its own expense, to employ counsel of its choice for purposes of such participation. In no case shall Buyer settle or degree whateverotherwise compromise such Tax Claim without Seller's prior written consent, whether by service of a summons which shall not be unreasonably withheld, conditioned 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 1 contract
Sources: Stock Purchase Agreement (Republic Airways Holdings Inc)
Contests. Buyer and Seller will each promptly notify the other in writing upon its receipt of any written notice of any pending or threatened audit or other examination by any Governmental Authority, or any judicial or administrative proceedings, relating to Taxes of the Company (aeach, a “Tax Contest”); provided, however, that no failure or delay in delivering such notice shall relieve any party of its obligations hereunder except to the extent that such party is actually and materially prejudiced by such failure or delay. If such Tax Contest relates solely to any Pre-Closing Tax Period (other than a Straddle Period), Seller shall have the right (but not the obligation), to be exercised within ten (10) Tenant mayBusiness Days following its receipt of the written notice of such Tax Contest by delivering written notice to Buyer, to assume and thereafter conduct and control the defense of such Tax Contest (with counsel of Seller’s choice) and, for so long as Seller is conducting and controlling such defense, Buyer shall have the right, but not the obligation, to participate in such defense with separate counsel of its choosing at its expense contestsole cost and expense; provided, by appropriate proceedings prosecuted diligently and in good faithhowever, that Seller shall not be permitted to consent to the entry of any judgment or enter into any settlement of such Tax Contest which may adversely impact Buyer, the validityCompany, or applicability the Tax attributes of the Company without the prior written consent of Buyer (not to be unreasonably withheld, conditioned, or delayed). Unless and until Seller assumes the Premisesdefense of such Tax Contest, Buyer may defend against such Tax Contest in any manner it may reasonably deem appropriate (with counsel of any Requirement with Buyer’s choice), in which Tenant is obligated to comply pursuant to the provisions of this Lease, and Landlord case Seller (i) shall cooperate with Tenant Buyer in such proceedingsdefense and make available to Buyer and its Representatives all witnesses, provided that:
pertinent records, materials, and information in or under their possession or control relating thereto as may be reasonably requested by Buyer, and (iii) Landlord shall have the right, but not the obligation, to participate in such defense with separate counsel of its choosing at its sole cost and expense. The conduct of such defense by Buyer shall not be subject construed to criminal penalty or be a waiver of Buyer’s right to prosecution for a crime nor shall the Premises or any part thereof be subject indemnification with respect 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 proceedingsTax Contest.
(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 (Andover National Corp)
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 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 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. 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. Tenant shall have the right, after ten (a10) Tenant maydays' prior written notice to the City, at its expense contest, to contest by appropriate legal proceedings prosecuted diligently and conducted in good faith, in the validityname of Tenant, without cost or applicability expense to the PremisesCity, the validity or application of any Legal Requirement with which Tenant is obligated referred to comply pursuant in Section 9.6 hereof, subject 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 the City 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 the City to criminal liability or otherwise fine, and provided that Tenant (i) furnishes to the City security, reasonably satisfactory to the City, 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) The City, without cost to it, shall execute and deliver any appropriate papers which may be necessary to obtain or maintain any such proceeding and shall further cooperate with and support Tenant in any such contest (including without limitation in appearances before government bodies), as Tenant may from time to time reasonably request, provided that the City shall keep Landlord advised as not be required to the status of such proceedings.
(b) Without limiting the application of subsection (a)(i) above theretojoin in or become a party, 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 nominal or otherwise, unless to any proceeding in which it will oppose the City of Portsmouth or the State of New Hampshire or the United States of America, any agency, City, branch, commission, division, office or subdivision of or for the City of Portsmouth or the State of New Hampshire or the United States of America, nor shall the City be required in connection with any such charge is withdrawn before Landlord proceeding or such officer, director, partner, member, principal or employee (as otherwise to oppose in any way any policy previously established by the case may be) is required City nor to plead or answer theretotake a position inconsistent with a position previously taken and made public by the City.
Appears in 1 contract
Sources: Ground Lease
Contests. (ai) Tenant mayThe Charterer 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 and in good faithor compromise, the validity, or applicability to the Premises, of any Requirement with Claim for which Tenant indemnification is obligated to comply pursuant to the provisions of sought under this LeaseSection 12.1, and Landlord each Indemnitee and each member of a Related Indemnitee Group shall cooperate cooperate, at the Charterer's expense, with Tenant all reasonable requests of the Charterer in such proceedingsconnection therewith, provided thatthat the Charterer shall not have the right without the consent of the -------- Indemnitee to defend, contest or compromise any Claim with respect to any Indemnitee or any member of its Related Indemnitee Group:
(iA) Landlord if a Specified Charter Event of Default shall not have occurred and be subject continuing; or
(B) if such Claim involves a realistic possibility of criminal sanctions or criminal liability to criminal penalty or to prosecution for a crime nor shall the Premises such Indemnitee or any part thereof be subject to being condemned or vacatedmember of its Related Indemnitee Group, by reason in which event the Indemnitee (or, in the case of non-compliance or otherwise by reason of such contest;
clause (iiB) Tenant shall defendonly, indemnify and hold harmless Landlord from and against any and all actionsthe Owner Participant and/or the Lenders, 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 be entitled to control and assume responsibility for the defense of such Claim at the expense of the Charterer but shall consult in good faith with the Charterer regarding such defense. The Charterer agrees that it will not settle a Claim against an Indemnitee without the consent of such Indemnitee if the settlement requires the admission by such Indemnitee that it has engaged in illegal conduct. During the continuance of a Charter Event of Default, the Charterer shall not compromise any claim without the consent of the relevant Indemnitee unless such claim is required simultaneously released or discharged, such consent not to plead or answer theretobe unreasonably withheld.
Appears in 1 contract
Sources: Participation Agreement (Mobil Corp)
Contests. (a) Tenant mayAfter the Closing, 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 LeaseParent shall, and Landlord shall cooperate with Tenant cause its Affiliates to, promptly notify Holders’ Representative in such proceedingswriting and the Equityholders shall or shall cause Holders’ Representative to promptly notify Parent in writing, provided that:
as the case may be, regarding (i) Landlord shall not be subject the proposed assessment or the commencement of any Tax audit or administrative or judicial proceeding or of any demand or claim with respect to criminal penalty or to prosecution for a crime nor shall the Premises any Covered Taxes, Non-Resident Capital Gains Taxes or any part thereof Covered Withholding Taxes, which, if determined adversely to the taxpayer or after the lapse of time, could be subject to being condemned grounds for indemnification under Section 8.2.1(a)(iii) or vacated, by reason of non-compliance or otherwise by reason of such contest;
Section 8.2.1(b)(iii) and (ii) Tenant any communications from the PRC Taxing Authorities relating to the Public Notice 7 Submission, provided, however, that no delay on the part of either party in giving any such notice 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 relieve an Indemnifying Person of any superior lease or superior mortgageindemnification obligations unless, or if such superior lease and/or superior mortgage shall permit such non-compliance or contest on condition of and only to the taking of action or furnishing of security by Landlordextent that, such action Indemnifying Person is actually prejudiced by such delay. Such notice shall be taken and include copies of any notice or other document received from any Taxing Authority in respect of any 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 case of subsection any audit, examination, contest, litigation, appeal, settlement discussion or other proceeding against any Taxing Authority (a)(ia “Contest”) above theretothat relates to either the Taxes of the Company or any of its Subsidiaries solely for any Tax period ending on or before the Closing Date or any Covered Withholding Taxes, Landlord which, if determined adversely to the taxpayer or after the lapse of time, could be grounds for indemnification under Section 8.2.1(b)(iii) (excluding, for the avoidance of doubt with respect to Non-Resident Capital Gains Taxes and any discussions with the PRC Taxing Authorities with respect to the Public Notice 7 Submission), Holders’ Representative shall have the right, at the Holders’ sole cost and expense, to assume the control the conduct of such Contest by delivering a written notice to Parent no later than twenty (20) days after receipt of written notice regarding the commencement of such Contests, provided that (i) the Holders’ Representative shall diligently defend such Contest and shall keep Parent reasonably informed regarding the progress and substantive aspects of such Contest (including promptly forwarding copies to Parent of any related correspondence, and providing Parent with an opportunity to review and comment on any material correspondence before Holders’ Representative sends such correspondence to any Taxing Authority), (ii) Holders’ Representative consult with Parent in connection with the defense or prosecution of any such Contest, (iii) Parent shall have the right (at Parent’s cost and expense) to participate in (but not control) the defense of such Contest (including participating in any discussions with the applicable Taxing Authorities regarding such Contest), and (iv) Holders’ Representative shall not settle or compromise any such Contest without first obtaining the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed). If Holders’ Representative does not elect to control any such Contest, Parent shall, and shall cause its Affiliates (including the Company and its Subsidiaries) to (i) diligently defend the Company and its Subsidiaries in connection with such Contest, (ii) keep Holders’ Representative reasonably informed regarding the progress and substantive aspects of such Contest (including promptly forwarding copies to Holders’ Representative of any related correspondence, and providing Holders’ Representative with an opportunity to review and comment on any material correspondence before Parent sends such correspondence to any Taxing Authority), (iii) consult with Holders’ Representative in connection with the defense or prosecution of any such Contest, (iv) provide Holders’ Representative the right (at the Holders’ cost and expense) to participate in (but not control) the defense of such Contest (including participating in any discussions with the applicable Taxing Authorities regarding such Contest), and (v) not settle or compromise any such Contest without first obtaining the prior written consent of Holders’ Representative (not to be unreasonably withheld, conditioned or delayed) provided, that Parent agrees that it shall be deemed subject unreasonable for Parent to prosecution for object a crime within settlement or a compromise of such Contest if such settlement or compromise will not increase the meaning amount of said subsection, if Landlord, Taxes payable by Parent or any officer, director, partner, member, principal of its Affiliates (including the Company or employee any of Landlord individually, is charged with its Subsidiaries) in a crime Post-Closing Tax Period or impose any restrictions or limits on the activities of Parent or of any kind its Affiliates (including the Company or degree whateverany of its Subsidiaries) in a Post-Closing Tax Period. For the avoidance of doubt, whether to the extent that it is ultimately determined that Covered Taxes or Covered Withholding Taxes are due in connection with any Contest that is controlled by service Parent or any of its Affiliates pursuant to the immediately preceding sentence, any reasonable costs and out-of-pocket expenses incurred by Parent or any of its Affiliates (including the Company and its Subsidiaries) in connection with any such Contest shall constitute Losses caused by, as a summons result of or otherwisearising out of, unless such charge is withdrawn before Landlord Covered Taxes or such officerCovered Withholding Taxes, director, partner, member, principal or employee (as the case may be.
(c) In the case of any Contest that relates to a Straddle Period, Parent shall have the right, at its own cost and expense, to direct and control, through counsel of its own choosing, any such Contest; provided, (i) Parent shall keep Holders’ Representative reasonably informed regarding the progress and substantive aspects of such Contest (including promptly forwarding copies to Holders’ Representative of any related correspondence, and providing Holders’ Representative with an opportunity to review and comment on any material correspondence before Parent sends such correspondence to any Taxing Authority), (ii) Parent shall consult with Holders’ Representative in connection with the defense or prosecution of any such Contest, (iii) Holders’ Representative shall have the right (at the Holders’ cost and expense) to participate in (but not control) the defense of such Contest (including participating in any discussions with the applicable Taxing Authorities regarding such Contest), and (iv) Parent shall not settle or compromise any such Contest without first obtaining the prior written consent of Holders’ Representative (not to be unreasonably withheld, conditioned or delayed).
(d) As long as the Special Tax Escrow Funds have not been substantially depleted or otherwise released (other than in the case of a Contingent Release but only to the extent Holders are still liable for the related Losses in accordance with the provisions of Section 8.2.4(d)(z)), Parent and Holders’ Representative shall jointly control (with each party bearing its respective cost and expense) any Contest that relates to Non-Resident Capital Gains Taxes (including any discussions with the PRC Taxing Authorities with respect to the Public Notice 7 Submission). As part of such joint control, Parent and the Holders’ Representative shall (i) keep each other reasonably informed regarding the progress and substantive aspects of such Contest, (ii) promptly forwarding copies to each other of any related correspondence, (iii) provide each other with an opportunity to review and comment on any material correspondence before sending any correspondence to the PRC Taxing Authorities, (iv) consult with each other in connection with the defense or prosecution of any such Contest, (iii) allow each other to participate and jointly control in the defense of such Contest (including participating in any discussions with the PRC Taxing Authorities regarding such Contest), and (iv) shall not settle or compromise any such Contest without first obtaining the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). For the avoidance of doubt, Parent agrees that it shall be unreasonable for Parent to object a settlement or a compromise of such Contest that does not result in any other obligations or limitations on Parent, or any of its Affiliates, if the amount of Non-Resident Capital Gains Taxes that would be due by Parent or any of its Affiliates as a result settlement of comprise of any such Contest would not exceed the remaining Special Tax Escrow Funds. Once the Special Tax Escrow Funds have been substantially depleted or otherwise released (other than in the case of a Contingent Release but only to the extent Holders are still liable for the related Losses in accordance with the provisions of Section 8.2.4(d)(z)), Parent shall have the sole right to control Contest that relates to Non-Resident Capital Gains Taxes to which Parent or any of its Affiliates is required a party to.
(e) Notwithstanding anything to plead the contrary in this Agreement, (i) this Section 5.8.6 shall control with respect to any Contest, and (ii) Parent shall have no obligation to disclose to Holders’ Representative any Tax information or answer theretoallow Holders’ Representative to participate in any discussion relating to Tax, in each case to the extent attributable to an affiliated, consolidated, unitary, combined or similar group for Tax purposes of which the Company is a member following the Closing.
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 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 Lessee give written notice thereof to Lessee. So long as no Lease Event of Default is continuing, 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 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 Lessee notice thereof. If 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 and with no further obligation to inform Lessee of the status of the Claim and no right of Lessee to approve or disapprove any actions taken in connection therewith by the Indemnitee. If 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 such Claim, then upon the request of Lessee, the Indemnitee requesting payment of indemnity under Section 7.1(a) shall promptly furnish Lessee with copies of any records or superior mortgagedocuments pertaining to the matter to be indemnified and, or if to the extent known by such superior lease and/or superior mortgage shall permit such nonIndemnitee, a reasonably LSI Trust No. 2001-compliance or contest on condition A Participation Agreement detailed explanation of the taking circumstances giving rise to the claim of action or furnishing indemnification and the determination of security by Landlordthe amount of the requested indemnity payment. Upon payment in full to Indemnitee of any indemnity pursuant to Section 7.1(a), such action Lessee shall be taken subrogated to any right of Indemnitee in respect of the matter against which such indemnity has been paid. If 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 Lessee, Indemnitee shall, at the expense of Tenant; and
(iv) Tenant shall keep Landlord advised Lessee, take such reasonable actions and execute such documents as are necessary or reasonably appropriate to assist Lessee in the status preservation and enforcement against third parties of 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 shall have been advised by its counsel that a conflict of interest exists in Lessee's counsel's representations of the Indemnitee and Lessee, in which case the fees and expenses of such Indemnitee's counsel shall be for the account of Lessee. All fees and expenses shall be paid periodically as incurred. So long as no Lease Event of Default shall have occurred and be continuing, Lessee shall not be liable for any settlement of any such Claim effected without its consent unless 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 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. (ai) Tenant mayEach of Buyer and the Company shall promptly notify the other in writing upon receipt of written notice of any pending or threatened audit, at notice of deficiency, examination, assessment or any other administrative or judicial proceeding (“Audit”) which may affect any Tax liability for which the other may be liable pursuant to this Section 4.11.
(ii) The Company shall have the sole and absolute right to (i) conduct any Audit that relates to (A) any PHH Group Tax Return or (B) any Buyer Tax Return for a complete taxable period ending on or before the Closing Date, (ii) employ counsel of its expense contestchoice in connection therewith and (iii) settle any such Audit on such terms as it may determine; provided that the Company shall not settle any such Audit without the prior written consent of Buyer, by appropriate proceedings prosecuted which consent shall not be unreasonably withheld, delayed or conditioned, if such settlement would reasonably be expected to adversely affect Buyer. If the Company elects not to conduct any such Audit, then (i) Buyer (A) shall diligently and prosecute such Audit in good faith, (B) shall, upon reasonable request, keep the validity, Company reasonably informed of the status of developments with respect to such Audit and (C) shall not settle or applicability to concede any such Audit without the Premises, prior written consent of any Requirement with the Company (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, delayed 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;
conditioned) 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, reasonable third-party costs and expenses (including court incurred by Buyer shall be reimbursed by the Company. For the avoidance of doubt, reasonable third-party costs and reasonable legal expenses shall include the fees and disbursements) which Landlord shall suffer of outside counsel and/or accountants engaged by reason of such non-compliance or contest;
(iii) such non-compliance or contest shall not constitute or result Buyer 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 connection 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.an Audit described under this
Appears in 1 contract
Sources: Stock Purchase Agreement (PHH Corp)
Contests. Buyer shall promptly notify Seller Parties in writing upon receipt by the Acquired Entities, Buyer or any of Buyer’s Affiliates of notice of any Tax Proceeding in respect of any of the Acquired Entities relating to any (ai) Tenant mayPre-Closing Tax Period or (ii) Straddle Period, at provided that the failure of Buyer to give notice of a Tax Proceeding as provided in this Section 6.2(h) shall not relieve Seller of its expense contest, by appropriate proceedings prosecuted diligently and in good faith, the validity, or applicability obligations under Section 6.2 except to the Premises, extent Seller is materially prejudiced thereby. Such notification shall specify in reasonable detail the basis for such Tax Proceeding 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:Taxing Authority.
(i) Landlord Seller shall have the right to control any Tax Proceeding relating to income Taxes in respect of an Acquired Entity for any Pre-Closing Tax Period; provided, however, that (i) Buyer shall have the right, at its sole cost and expense, to participate in any such Tax Proceeding, (ii) Seller shall provide Buyer with a timely and reasonably detailed account of each stage of such Tax Proceeding, (iii) Seller shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of Buyer, which consent shall not be subject unreasonably withheld, conditioned or delayed; provided, further, that Buyer, at its own cost and expense, may control and contest any Tax Proceeding for which Seller would otherwise have the right to criminal penalty control under this Section 6.2(h)(i) if Seller declines or fails to prosecution for control such Tax Proceeding; provided, further, however, that if Buyer exercises its right to control any Tax Proceeding under the preceding clause, Buyer shall (A) provide Seller with a crime nor shall the Premises or any part thereof be subject to being condemned or vacated, by reason timely and reasonably detailed account of non-compliance or otherwise by reason each stage of such contest;Tax Proceeding, (B) not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of Seller, which consent shall not be unreasonably withheld or delayed, and (C) consult with Seller in good faith concerning the appropriate strategy for contesting such Tax Proceeding.
(ii) Tenant Buyer shall defendhave the right to control, indemnify at its own expense, any Tax Proceeding in respect of an Acquired Entity for any Pre-Closing Tax Period other than related to income Taxes and hold harmless Landlord from for any Straddle Period; provided, however, that (i) Seller shall have the right to participate in any such Tax Proceeding, (ii) Buyer shall provide Seller with a timely 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 reasonably detailed account of each stage of such non-compliance or contest;
Tax Proceeding and consult in good faith concerning the appropriate strategy for contesting the Tax Proceeding, and (iii) such non-compliance or contest Buyer shall not constitute settle, compromise or result in abandon any violation such Tax Proceeding without obtaining the prior written consent of any superior lease Seller, which consent shall not be unreasonably withheld or superior mortgagedelayed, or if such superior lease and/or superior mortgage shall permit such non-compliance settlement, compromise 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, abandonment could affect Seller’s 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 theretoits owners’ liability for Taxes.
Appears in 1 contract
Sources: Equity Securities Purchase Agreement (Meridian Waste Solutions, Inc.)
Contests. (a) Tenant mayBuyer agrees to give written notice to Seller of the receipt of any written notice by a Company, at its expense contest, by appropriate proceedings prosecuted diligently and in good faith, the validityBuyer, or applicability any Affiliates of Buyer that 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 6 (a “Tax Claim”); provided, that failure to comply with this provision shall not affect Buyer’s right to indemnification except and only to the Premises, extent that the such failure results in the forfeit of rights or defenses of Seller. Buyer shall control the contest or resolution of any Requirement with Tax Claim; provided, however, that Buyer shall obtain the prior written consent of Seller (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 Seller shall be entitled to prosecution participate in the defense of such claim and to employ counsel of its choice for a crime nor such purpose, the fees and expenses of which separate counsel shall be borne solely by Seller. Seller agrees to give written notice to Buyer of the Premises receipt of any written notice by Seller or any part thereof Affiliates of Seller that involves the assertion of any claim, or the commencement of any Action, in respect of which indemnity be subject sought by Seller pursuant to being condemned this Article 6 (a “Seller Claim”); provided, that failure to comply with this provision shall not affect Seller’s right to indemnification except and only to the extent that the such failure results in the forfeit of rights or vacateddefenses of Buyer. Seller shall control the contest or resolution of any Seller Claim; provided, by reason however, that Seller shall obtain the prior written consent of non-compliance Buyer (which consent shall not be unreasonably withheld or otherwise by reason delayed) before entering into any settlement of a claim or ceasing to defend such claim; and, provided further, that Buyer shall be entitled to participate in the 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 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 the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsborne solely by Buyer.
(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 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. (a) Tenant mayParent agrees to give written notice to the Representative of the receipt of any written notice by a Group Company or the Surviving Company, at its expense contestParent, by appropriate proceedings prosecuted diligently or any of Parent’s Affiliates which involves the assertion of any claim, or the commencement of any Legal Proceeding, in each case relating to Taxes and in good faithrespect of which an indemnity may be sought by Parent pursuant to Section 8.10 (a “Tax Claim”); provided that failure to comply with this provision shall not affect Parent’s right to indemnification hereunder, the validity, or applicability except to the Premises, extent that the Sellers are materially prejudiced thereby. The Representative shall control the contest or resolution of any Requirement with Tax Claim that relates solely to a Pre-Closing Tax Period (a “Seller Tax Claim”); provided, however, that the Representative shall obtain the prior written consent of 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, conditioned, or delayed) before entering into any settlement of a Seller Tax Claim or ceasing to criminal penalty or defend such Seller Tax Claim; and, provided, further, that 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 defendSeller Tax Claim 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 Parent. Parent shall control the contest or resolution of any Tax Claim that relates to a Straddle Period (including court costs a “Parent Tax Claim”); provided, however, that Parent shall obtain the prior written consent of Representative (which consent shall not be unreasonably withheld, conditioned, or delayed) before entering into any settlement of a Parent Tax Claim or ceasing to defend such Parent Tax Claim; and, provided, further, that Representative shall be entitled to participate in the defense of such Parent 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 of such non-compliance or contest;
Representative (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 behalf 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).
(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 Purchaser shall promptly notify Seller in writing of the proposed assessment or the commencement of any Tax audit or administrative or judicial proceeding or Action or of any demand or claim on Purchaser, its expense contest, by appropriate proceedings prosecuted diligently and in good faithAffiliates, the validityCompanies or any Company Subsidiary which, if determined adversely to the taxpayer or after the lapse of time, could result in a Tax liability to Seller or an indemnification obligation of Seller under this Agreement. Such notice shall contain factual information (to the extent known to Purchaser, its Affiliates, or applicability to the Premises, Company Group) 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 Purchaser fails to comply give Seller prompt notice of an asserted Tax liability as required by this Section 6.3, the Seller’s obligations pursuant to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord Agreement 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 relieved except to the status of extent, and only to such proceedingsextent, that failure to give such notice results in a material detriment to Seller.
(b) Without limiting In the application case of subsection a Tax audit or administrative or judicial Action that relates to taxable periods (a)(ior portions thereof) above theretoending on or before the date of the Closing (a “Contest”), Landlord Seller shall have the sole right to control the conduct of such Contest so long as such Contest could not reasonably be deemed subject expected to prosecution for have an impact in a crime within tax period (or portion thereof) beginning after the meaning Closing Date. Purchaser shall have the sole right to control the conduct of said subsectionany Contest not controlled by Seller.
(c) The non-controlling party shall have the right to participate in any such Contest, if Landlordat its own expense, and the controlling party shall keep the non-controlling party reasonably apprised of any materially developments during such Contest. The controlling party may not settle or compromise any Contest without prior written consent of the non-controlling party, such consent not to be unreasonably withheld, conditioned, or delayed.
(d) Purchaser and Seller agree to cooperate, and ▇▇▇▇▇▇▇▇▇ agrees to cause the Companies (or any officerCompany Subsidiary) 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 Contest.
Appears in 1 contract
Sources: Equity Purchase Agreement (FiscalNote Holdings, Inc.)
Contests. If any claim shall be made against any Indemnitee or if any proceeding shall be commenced against any Indemnitee (aincluding a written notice of such proceeding) Tenant mayfor any Taxes as to which Lessee may have an indemnity obligation pursuant to SECTION 8.1, or if any Indemnitee shall determine that any Taxes as to which Lessee may have an indemnity obligation pursuant to SECTION 8.1 may be payable, such Indemnitee shall promptly notify Lessee. Lessee shall be entitled, at its expense contestexpense, by appropriate proceedings prosecuted diligently and in good faithacting through counsel reasonably acceptable to such Indemnitee, the validityto participate in, or applicability and, to the Premisesextent that Lessee desires to, of any Requirement with which Tenant is obligated to comply pursuant to assume and control the provisions of this Leasedefense thereof; PROVIDED, and Landlord shall cooperate with Tenant in such proceedingsHOWEVER, provided that:
(i) Landlord that Lessee shall not be subject entitled to assume and control the defense of any such action, suit or proceeding if and to the extent that (A) Lessee is not able to provide such Indemnitee with a legal opinion of counsel reasonably acceptable to such Indemnitee that such action, suit or proceeding does not involve (x) a risk of imposition of criminal penalty liability or to prosecution for (y) any material risk of material civil liability on such Indemnitee and will not involve a crime nor shall material risk of the Premises sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Encumbrance) on the Equipment, the Trust Estate or any part thereof be subject thereof, unless, in the case of this CLAUSE (y), Lessee contemporaneously with such opinion shall have posted a bond or other security satisfactory to being condemned or vacatedthe relevant Indemnitee in respect to such risk, by reason of non-compliance or otherwise by reason (B) the control of such contest;
action, suit or proceeding would involve a bona fide conflict of interest, (iiC) Tenant shall defendsuch proceeding involves Claims not fully indemnified by Lessee which Lessee and the Indemnitee have been unable to sever from the indemnified claim(s), indemnify (D) a Default or Lease Event of Default has occurred and hold harmless Landlord from is continuing, (E) such action, suit or proceeding involves matters which extend beyond or are unrelated to the transaction contemplated by the Operative Documents 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 if determined adversely could be materially detrimental to the interests of such non-compliance Indemnitee notwithstanding indemnification by Lessee or contest;
(iiiF) such non-compliance or contest Lessee shall not constitute have acknowledged in writing its obligation to indemnify fully such Indemnitee in respect of such action, suit or result proceeding. The Indemnitee may participate in a reasonable manner at its own expense and with its own counsel 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 proceeding conducted by Lessee in accordance with 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 proceedingsforegoing.
(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 to the provisions of this Lease, and Landlord shall cooperate with Tenant in such proceedings, provided that:
(i) Landlord Seller (at Seller’s own expense) shall be entitled to control the defense (including as to settlement, except as provided below) of any audit, litigation, proceeding, or other action with respect to Taxes (a “Tax Proceeding”) with respect to a Pre-Closing Tax Period (other than a Straddle Period, Straddle Periods being governed by Section 8.02(i)(iii) below) to the extent such audit, litigation, proceeding or other action relates to the Company or any of its Subsidiaries (“Pre-Closing Audits”), provided, however, that Seller shall not be subject cause the Company or any of its Subsidiaries to criminal penalty enter into a settlement that by its terms, and without Buyer’s prior written consent, binds the Company or to prosecution any of its Subsidiaries for a crime nor shall Post-Closing Tax Period as a result of the Premises or any part thereof be subject to being condemned or vacated, by reason of non-compliance or otherwise by reason settlement of such contest;Pre-Closing Audit. The Company shall be entitled to control such Tax Proceeding (at Seller’s expense) to the extent Seller does not exercise its right to control a Tax Proceeding pursuant to this Section 8.02(i)(i). The Parties agree that neither the Company nor any Subsidiary shall be permitted to settle, compromise, or discharge any Pre-Closing Audit, or admit any liability with respect thereto, without the prior written consent of Seller.
(ii) Tenant Notwithstanding Section 8.02(i)(i), Buyer (at Buyer’s own expense) 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 be entitled to control the defense (including court costs as to settlement, except as provided below) of any Tax Proceeding with respect to a Pre-Closing Tax Period (other than a Straddle Period, Straddle Periods being governed by Section 8.02(i)(iv) below) to the extent such Tax Proceeding relates to the Comfort Products Contributed Assets (“Pre-Closing Comfort Products Audit”), provided, however, that Buyer shall not cause the Company or any of its Subsidiaries to enter into a settlement that by its terms, and reasonable legal fees and disbursements) which Landlord shall suffer by reason without Seller’s prior written consent, binds the Company or any its Subsidiaries for a Post-Closing Tax Period as a result of the settlement of such nonPre-compliance or contest;Closing Comfort Products Audit. The Company shall be entitled to control such Tax Proceeding (at Buyer’s expense) to the extent Buyer does not exercise its right to control a Tax Proceeding pursuant to this Section 8.02(i)(ii).
(iii) such non-compliance or contest shall not constitute or result in any violation In the case of any superior lease or superior mortgagea Tax Proceeding for a Straddle Period, or if such superior lease and/or superior mortgage shall permit such nonTax Proceeding relates or could reasonably be expected to relate to both a claim for Company Taxes for a Pre-compliance or contest on condition of the taking of action or furnishing of security by LandlordClosing Tax Period and a claim for Company Taxes for a Post-Closing Tax Period, 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 claim for Company Taxes for a crime within Pre-Closing Tax Period is not separable from such claim for Company Taxes for a Post-Closing Tax Period, the meaning of said subsectionCompany (if the claim for Company Taxes that are for a Post-Closing Tax Period exceeds or reasonably could be expected to exceed in amount the claim for Company Taxes for a Pre-Closing Tax Period) or otherwise Seller (Seller or the Company, 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, the “Tax Contest Controlling Party”), shall be entitled to control the defense of such Tax Proceeding. In such case, the other Party (the “Tax Contest Non-Controlling Party”) shall be entitled to participate fully (at the Tax Contest Non-Controlling Party’s sole expense) in the conduct of such Tax Proceeding and the Tax Contest Controlling Party shall not settle, compromise, or discharge such Tax Proceeding without the consent of such Tax Contest Non-Controlling Party (which consent shall not be unreasonably withheld or delayed). The costs and expenses of conducting the defense of such Tax Proceeding shall be reasonably apportioned based on the relative amounts of the claim for Company Taxes for a Pre-Closing Tax Period and the claim for Company Taxes for a Post-Closing Tax Period.
(iv) Notwithstanding Section 8.02(i)(iii), in the case of a Tax Proceeding for a Straddle Period with respect to the Comfort Products Contributed Assets, if such Tax Proceeding relates or could reasonably be expected to relate to both a claim for Taxes with respect to the Comfort Products Contributed Assets (“Comfort Products Taxes”) for a Pre-Closing Tax Period and a claim for Comfort Products Taxes for a Post-Closing Tax Period, and such claim for Comfort Products Taxes for a Pre-Closing Tax Period is required not separable from such claim for Comfort Products Taxes for a Post-Closing Tax Period, the Company (if the claim for Comfort Products Taxes that are for a Post-Closing Tax Period exceeds or reasonably could be expected to plead exceed in amount the claim for Comfort Products Taxes for a Pre-Closing Tax Period) or answer theretootherwise Buyer (Buyer or the Company, as the case may be, the “Comfort Products Tax Contest Controlling Party”), shall be entitled to control the defense of such Tax Proceeding. In such case, the other Party (the “Comfort Products Tax Contest Non-Controlling Party”) shall be entitled to participate fully (at the Comfort Products Tax Contest Non-Controlling Party’s sole expense) in the conduct of such Tax Proceeding and the Comfort Products Tax Contest Controlling Party shall not settle, compromise, or discharge such Tax Proceeding without the consent of such Comfort Products Tax Contest Non-Controlling Party (which consent shall not be unreasonably withheld or delayed). The costs and expenses of conducting the defense of such Tax Proceeding shall be reasonably apportioned based on the relative amounts of the claim for Comfort Products Taxes for a Pre-Closing Tax Period and the claim for Comfort Products Taxes for a Post-Closing Tax Period.
Appears in 1 contract
Contests. After the Closing Date, the Buyer shall promptly notify the Representative of the receipt of any written notice by the Company, the Buyer or any of the 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 the Buyer pursuant to Article 8 (aa “Tax Claim”); provided, that failure to comply with this provision shall not affect the Buyer’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 the Buyer reasonably informed of all material developments relating to such Tax Claim, or applicability and shall allow the Buyer 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 the Buyer (or the Company or any Subsidiary) may be liable. Neither the Buyer 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 the Buyer 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 7.2, 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 the Buyer pursuant to plead or answer theretoArticle 8, and to permit, to the greatest extent possible, the Buyer to control the contest of any such item.
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 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 any of the Companies 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 date of Closing, provided that, and only to the extent that, the Sellers acknowledges in writing their liability under this Agreement to hold the Purchaser, the Companies and their Affiliates harmless against the full amount of any adjustment which may be made as a result of such audit or proceeding, the Sellers shall have the right at their expense to participate in and control the conduct of such audit or proceeding; the Purchaser also may participate in any such audit or proceeding and, if the Sellers 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 settling such audit or proceeding after 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 its 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.
(a)(ic) above thereto, Landlord shall be deemed subject With respect to prosecution issues relating to a potential adjustment for a crime within Straddle Period the meaning of said subsectionSellers may participate in the audit or proceeding at their expense, if Landlordprovided that, or any officerand only to the extent that, directorthe Sellers acknowledges in writing their liability under this Agreement to hold the Purchaser, partner, member, principal or employee of Landlord individually, is charged with a crime the Companies and their Affiliates harmless against the amount of any kind adjustment which may be made as a result of such audit or degree whateverproceeding and that is allocable, whether by service pursuant to Section 6.01(b) to the portion of the Straddle Period ending on the date of Closing.
(d) With respect to any Tax audit or proceeding for a summons taxable period that begins before the date of the Closing, neither the Purchaser nor the Sellers shall enter into any compromise or otherwiseagree 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, unless which consent may not be unreasonably withheld. The Purchaser and the Sellers agree to cooperate, and the Purchaser agrees to cause the Companies to cooperate, in the defense against or compromise of any claim in any such charge is withdrawn before Landlord audit 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. (i) The ▇▇▇▇▇ Representative and its duly appointed representatives shall have the authority to control any audit or examination by any taxing authority, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to any liability of ▇▇▇▇▇ and its subsidiaries for all ▇▇▇▇▇ Pre-Closing Periods; PROVIDED, HOWEVER, that neither the ▇▇▇▇▇ Representative nor any duly appointed representative of the ▇▇▇▇▇ Representative shall, without the prior consent of UbiquiTel Parent, which consent shall not be unreasonably withheld, enter into any settlement of any contest or otherwise compromise any issue that would have a material adverse effect on the Tax benefits of UbiquiTel Parent or ▇▇▇▇▇ or any subsidiary for taxable years ending after the Closing Date. UbiquiTel Parent and its duly appointed Representatives shall have the exclusive authority to control any audit or examination by any taxing authority, initiate any claim for refund, amend any Tax Return and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to any liability of ▇▇▇▇▇ and its subsidiaries for Taxes for any taxable year or other taxable period ending after the Closing Date (the "POST-CLOSING PERIODS"); PROVIDED, HOWEVER, that (a) Tenant maynone of UbiquiTel Parent, at ▇▇▇▇▇, its expense contestsubsidiaries nor any of their duly appointed representatives shall, by appropriate proceedings prosecuted diligently and in good faithwithout the prior written consent of the ▇▇▇▇▇ Representative, the validity, or applicability to the Premises, enter into any settlement of any Requirement with which Tenant is obligated to comply pursuant to contest or otherwise compromise any issue that adversely affects the provisions liability of this Leasethe ▇▇▇▇▇ Stockholders for any ▇▇▇▇▇ Pre-Closing Period Taxes, 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 none of UbiquiTel Parent, ▇▇▇▇▇, its subsidiaries nor any of their duly appointed representatives shall, without the application prior consent of subsection (a)(i) above theretothe ▇▇▇▇▇ Representative, Landlord shall be deemed subject to prosecution for a crime within the meaning of said subsection, if Landlord, or enter into any officer, director, partner, member, principal or employee of Landlord individually, is charged with a crime settlement of any kind contest or degree whatever, whether otherwise compromise any issue that would require payment by service of a summons or otherwise, unless such charge is withdrawn before Landlord or such officer, director, partner, member, principal or employee the Controlling ▇▇▇▇▇ Stockholders (as defined herein) of any amount under this Agreement unless UbiquiTel Parent shall have waived or caused to be waived for itself and ▇▇▇▇▇ and its subsidiaries any right to indemnification for Taxes from the case may be) is required to plead or answer theretoControlling ▇▇▇▇▇ Stockholders.
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’ Representative in writing of the proposed assessment or the commencement of any Tax audit or administrative or judicial proceeding or of any written demand or claim against the Purchasers, their Affiliates, any Company or applicability any Subsidiary which, if determined adversely to the Premisestaxpayer or after the lapse of time, may give rise to a claim by the Purchasers for indemnification by the Sellers under Section 7.01. Such notice shall contain factual information (to the extent known to the Purchasers, their Affiliates, any Company or any Subsidiary) 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 Purchasers fail to comply pursuant give the Seller Representative notice within a reasonable time following an asserted Tax liability as required by this Section 7.05, then the Sellers 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 material detriment to the status of such proceedingsSellers.
(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 Closing, Landlord the Sellers shall be deemed subject have the sole right, at their expense, to prosecution control the conduct of such Contest, provided that Seller acknowledges in writing that it has sole liability for any Taxes that might arise in such proceeding. Notwithstanding the preceding sentence, the Sellers shall not settle any Contest on a crime within basis that would adversely affect the meaning liability for Taxes of said subsection, if Landlord, the Purchasers or any officerCompany or Subsidiary without first obtaining such party’s written consent, 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 theretowhich shall not be unreasonably withheld.
Appears in 1 contract
Sources: Stock Purchase Agreement (Claxson Interactive Group Inc)
Contests. (a) Tenant mayBuyer agrees to give written notice to Seller of the receipt of any written notice to Company, at its expense contestSub, by appropriate proceedings prosecuted diligently and in good faith, the validityBuyer, or applicability 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 VII (a “Tax Claim”); provided, that failure to comply with this provision shall not affect Buyer’s right to indemnification hereunder, except and only 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 extent that Seller forfeits 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;
failure. Except with respect to Tax Claims relating exclusively to Pre-Closing Tax Periods, Buyer shall control the contest or resolution of any Tax Claim; provided, however, that Buyer shall obtain the prior written consent of Seller (iiwhich consent shall not be unreasonably withheld or delayed) Tenant before entering into any settlement of a claim relating to a Pre-Closing Tax Period or ceasing to defend any such claim; and, provided further, that Seller shall defendbe entitled to participate in the defense of a claim relating to a Pre-Closing Tax Period 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 Seller. With respect to any Tax Claim relating exclusively to one or more Pre-Closing Tax Periods, Seller shall control the contest or resolution of such Tax Claim; provided, however, that Seller shall obtain the prior written consent of Buyer (including court costs which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of a claim or ceasing to defend such claim; and, provided further, that Buyer 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 the expense of Tenant; and
(iv) Tenant shall keep Landlord advised as to the status of such proceedingsborne solely by Buyer.
(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 (Innospec Inc.)