Common use of Special Indemnification Clause in Contracts

Special Indemnification. (a) eCom agrees to provide Services to Reseller pursuant to this Agreement based on an ACH debit sent by eCom on Reseller’s behalf to Reseller’s Customers to collect the funding for the ▇▇▇▇ payments initiated by Consumers of Reseller’s Customers. Any return of the debit sent to collect the cumulative amount for all daily payments is strictly prohibited. In the event of any such return, eCom shall immediately notify Reseller via telephone and email. Reseller shall make alternate arrangements with eCom for its immediate payment to eCom of the amount of the returned debit as set forth herein. Reseller acknowledges that it is responsible for ensuring through its own contractual relations with Reseller’s Customers, such Customers’ strict compliance with the collection of such cumulative amount through such debit sent by eCom, and such Customers’ adherence to the requirement that such debit may not be returned. Reseller guarantees payment to eCom, as described herein, of such correctly debited funds. As soon as notice is provided to Reseller that any debited funds have been returned, Reseller shall wire to eCom on that same day immediately available funds in the amount of any returned debit. Reseller acknowledges that time is of the essence in its obligation to cover immediately any such returned debited funds. Further, subject to the limitations as set forth in this Agreement, Reseller shall indemnify eCom from any and all actual direct loss suffered by eCom from any returned debit, except where returned due to identified errors in debiting by eCom (b) While the parties acknowledge that Reseller is responsible for promptly covering on the same day any unauthorized return of the debit by any Reseller Customer, and without modifying Reseller’s obligations set forth in subparagraph (a) above, the parties agree to work together to attempt initially to recover such funds promptly on the same day from the Reseller Customer involved so that Reseller will not actually have to cover the returned debit. In that regard, the parties agree to initiate reasonable corrective action promptly to recover the returned funds from the Reseller Customer by employing one or more of the following methods: jointly calling or communicating with the Reseller Customer involved to attempt to correct the situation; requiring the Reseller Customer to wire the funds immediately to eCom; limiting or restricting the availability of services to the Reseller Customer until such customer remits the funds to eCom; and such other means and methods that are reasonable given the nature of the circumstances and the amount of money involved. Should such means and methods not result in the remittance of such funds to eCom that day, and if Reseller has not already done so under its obligations set forth in subparagraph (a) above, at eCom’s request, Reseller will cover the returned debit immediately by wiring the funds to eCom.

Special Indemnification. A. Operating Partnership hereby indemnifies and holds harmless the Indemnitees for (ai) eCom agrees the present value of the loss of the deferral of their Federal and State income tax liabilities which they incur because of the substitution of property permitted under the loan documents executed in connection with the 1998 Transaction as a result of casualty, condemnation, or a non-monetary default under the GACC loan documents (an "Exchange Event") that causes the recognition of income (such as Exchange Event is called a "Payment Event"); and (ii) all of Indemnitees' fees and expenses, including without limitation reasonable legal fees in connection with the enforcement of this Agreement. Operating Partnership shall notify Beneficiaries immediately upon the occurrence of any Exchange Event. The parties have stipulated and agreed that the present value of the loss of the deferral of their amount of Federal and State tax liabilities referred to provide Services to Reseller pursuant to this Agreement based in Section 2A(i) are as set forth on an ACH debit sent by eCom on Reseller’s behalf to Reseller’s Customers to collect the funding Exhibit C attached hereto and hereby made a part hereof, for the ▇▇▇▇ payments initiated by Consumers applicable periods of Reseller’s Customerstime shown thereon. Any return The Exhibit C amounts shall be binding whether or not the actual Federal and State tax liabilities are higher or lower than the indicated amounts and shall be due and payable upon the occurrence of a Payment Event whether or not Operating Partnership claims there may be defenses or offsets to the tax liabilities. B. Upon the occurrence of an Exchange Event, Beneficiaries shall determine whether they believe that they will recognize income as a result thereof. If Beneficiaries believe that the applicable Limited Partnership is likely to recognize income or gain for federal income tax purposes as a result thereof ("Beneficiaries' Belief"), they shall so advise Operating Partnership. Unless Operating Partnership advises Beneficiaries in writing within fifteen (15) days after notice from Beneficiaries that Operating Partnership disagrees with Beneficiaries' Belief, there shall thereupon be deemed to be a "Payment Event." C. If Operating Partnership advises Beneficiaries in writing within fifteen (15) days after notice from Beneficiaries that Operating Partnership disagrees with Beneficiaries' Belief, Beneficiaries shall engage a nationally recognized accounting firm or a law firm to render an opinion as to whether the applicable Limited Partnership is more likely than not to recognize income or gain for federal income tax purposes as a result of the debit sent Exchange Event. If the firm is not a "Big 5" accounting firm (or a successor thereto), Beneficiaries shall so notify Operating Partnership, and Operating Partnership shall be entitled to collect consent to the cumulative amount selection of such firm, and such consent shall not be unreasonably withheld or delayed and shall be deemed given if Operating Partnership does not notify Beneficiaries to the contrary within fifteen (15) days of the notice from Beneficiaries. Operating Partnership shall pay the fees of the firm. D. In the event such firm renders an opinion that it is more likely than not that the applicable Limited Partnership will not recognize income or gain for all daily payments is strictly prohibitedfederal income tax purposes, Beneficiaries shall file tax returns that do not recognize income. In the event of any such return, eCom shall immediately notify Reseller via telephone and email. Reseller shall make alternate arrangements with eCom for its immediate payment to eCom of the amount of the returned debit as set forth herein. Reseller acknowledges that it is responsible later determined by the Internal Revenue Service or a court of competent jurisdiction that Beneficiaries' should have recognized income as a result of the Exchange Event, there shall be deemed to be a Payment Event. Operating Partnership shall also be liable for ensuring through its own contractual relations with Reseller’s Customersall interest and penalties imposed on Beneficiaries as a result of a Payment Event. E. In the event such firm renders an opinion that it is more likely than not that the applicable Limited Partnership will recognize income or gain for federal income tax purposes, such Customers’ strict compliance with the collection of such cumulative amount through such debit sent by eComBeneficiaries shall file tax returns that recognizes income, and such Customers’ adherence a Payment Event shall be deemed to have occurred. F. Operating Partnership shall be entitled to engage counsel and accountants, who must be approved by Beneficiaries, which approval shall not be unreasonably withheld or delayed, at the expense of Operating Partnership, to defend the position that the occurrence of an Exchange Event is not a Payment Event. G. Notwithstanding anything to the requirement contrary contained herein, if a Payment Event occurs with respect to one or more, but not all, of the Loans so that such debit may not fewer than all of the Facilities are affected thereby, the amount due by Operating Partnership pursuant to Section 2(a) shall be returned. Reseller guarantees payment to eComdetermined by multiplying the Cash Amount for the applicable period, as described hereinshown on Exhibit C, by the sum of such correctly debited funds. As soon the decimal equivalents of the percentages shown for the Facilities affected, as notice is provided shown on Exhibit C. H. Any amount paid pursuant to Reseller that any debited funds have been returned, Reseller Exhibit C shall wire to eCom on that same day immediately available funds in reduce the amount of any returned debit. Reseller acknowledges that time is of the essence in its obligation to cover immediately any such returned debited funds. Further, subject to the limitations as set forth in this Agreement, Reseller shall indemnify eCom from any and all actual direct loss suffered by eCom from any returned debit, except where returned due to identified errors in debiting by eCom (b) While the parties acknowledge that Reseller is responsible payable under Exhibit A on a dollar for promptly covering on the same day any unauthorized return of the debit by any Reseller Customer, and without modifying Reseller’s obligations set forth in subparagraph (a) above, the parties agree to work together to attempt initially to recover such funds promptly on the same day from the Reseller Customer involved so that Reseller will not actually have to cover the returned debit. In that regard, the parties agree to initiate reasonable corrective action promptly to recover the returned funds from the Reseller Customer by employing one or more of the following methods: jointly calling or communicating with the Reseller Customer involved to attempt to correct the situation; requiring the Reseller Customer to wire the funds immediately to eCom; limiting or restricting the availability of services to the Reseller Customer until such customer remits the funds to eCom; and such other means and methods that are reasonable given the nature of the circumstances and the amount of money involved. Should such means and methods not result in the remittance of such funds to eCom that day, and if Reseller has not already done so under its obligations set forth in subparagraph (a) above, at eCom’s request, Reseller will cover the returned debit immediately by wiring the funds to eComdollar basis.