SLAB » Topics » provided further

These excerpts taken from the SLAB 8-K filed Apr 5, 2006.
provided further that Lessee shall not assign or sublease any portion of the Leased Property to, or permit the assignment or the sublease of any portion of the Leased Property by, any Person who at the time of such sublease or assignment shall then be the subject of any proceeding for relief under any bankruptcy or insolvency law or laws relating to the relief of debtors.

 

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Lessee shall give Lessor prompt written notice of any assignment or sublease permitted under this Article VI, and shall promptly provide Lessor with a fully executed copy of each document evidencing such assignment or sublease.

 

provided further that this clause (i) shall not apply to Taxes and Impositions imposed on a Tax Indemnitee as a result of Lessee’s activities or the location of the Subject Property in the jurisdiction imposing such Taxes or Impositions;

 

(ii)        any Tax or imposition to the extent, but only to such extent, it relates to any act, event or omission that occurs, or relates to a period, after the termination of the Lease (but not any Tax or imposition to the extent, but only to such extent, that it relates to any period prior to the termination of the Lease with respect to the Subject Property to which such Tax or Imposition relates);

 

(iii)       any Tax or imposition for so long as, but only for so long as, it is being contested in accordance with the provisions of Section 13.4(b) of the Participation Agreement, provided that the foregoing shall not limit the Lessee’s obligation under Section 13.4(b) of the Participation Agreement to advance to such Tax Indemnitee amounts with respect to Taxes or impositions that are being contested in accordance with Section 13.4(b) of the Participation Agreement or any expenses incurred by such Tax Indemnitee in connection with such contest;

 

(iv)       any Taxes or impositions imposed upon a Tax Indemnitee with respect to any transfer, sale, financing or other disposition of any interest in the Subject Property or any part thereof, or any interest therein or any interest or obligation under the Operative Documents or any Note or Lessor’s Interest, or from any sale, assignment, transfer or other disposition of any interest in a Tax Indemnitee or any Affiliate thereof, (other than any transfer in connection with (1) the exercise by the Lessee of its Early Termination Option or any termination option or other purchase of the Subject Property by the Lessee or the exercise by Lessee of the Sale Option, (2) the occurrence of an Event of Default,

 

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(3) a Casualty or Condemnation affecting the Leased Property or (4) any assignment, sublease, modification or addition of or to the Leased Property by the Lessee);

 

(v)           any Taxes or impositions imposed on a Tax Indemnitee to the extent such Tax Indemnitee actually receives a credit (or otherwise has a reduction in a liability for Taxes) in respect thereof against Taxes that are not indemnified under the Participation Agreement (but only to the extent such credit is not taken into account in calculating the indemnity payment on an After Tax Basis);

 

(vi)          any Taxes imposed against or payable by a Tax Indemnitee resulting from, or that would not have been imposed but for, the gross negligence or willful misconduct of such Tax Indemnitee or its Affiliates, provided that a default under, or the failure of Lessor to perform any obligation, covenant or agreement in, any Related Agreement or otherwise required by Applicable Law, Governmental Action or third parties with respect to the Subject Property shall not be deemed gross negligence or willful misconduct;

 

(vii)         Taxes imposed on or payable by a Tax Indemnitee to the extent such Taxes would not have been imposed but for a breach by such Tax Indemnitee or any Affiliate thereof of any representations, warranties contained in Section 8.1 or 8.4 of the Participation Agreement or covenants set forth in the Participation Agreement or the Lease (unless such breach is caused by the Lessee’s breach of its representations, warranties or covenants set forth in the Operative Documents);

 

(viii)        Taxes to the extent resulting from a Tax Indemnitee’s failure to comply with the provisions of Section 13.4(b) of the Participation Agreement, which failure precludes the ability to conduct a contest pursuant to Section 13.4(b) of the Participation Agreement (unless such failure is caused by the Lessee’s breach of its obligations);

 

(ix)           [Intentionally Omitted];

 

(x)            Taxes imposed on or with respect to or payable as a result of activities of a Tax Indemnitee unrelated to the Overall Transaction;

 

(xi)           any interest, additions to tax or penalties imposed on an Indemnitee as a result of such Indemnitee’s or an Affiliate’s failure to file any return or other documents provided to it pursuant to Section 13.4(d) of the Participation Agreement on a timely basis; provided that this clause (xi) shall not apply if such interest or penalties arise as a result of a position taken (or requested to be taken) by the Lessee in a contest controlled by the Lessee under Section 13.4(b) of the Participation Agreement;

 

(xii)          Taxes imposed on or with respect to or payable by an Indemnitee resulting directly from, or that would not have been imposed but for the existence of, any Lessor Lien created by or through such Indemnitee or an Affiliate thereof, unless caused by acts or omissions of Lessee;

 

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(xiii)         any Tax imposed against or payable by an Indemnitee that is a transferee from another Indemnitee to the extent that, under the law in effect on the date of transfer, the amount of such Tax exceeds the amount of such Tax that would have been imposed against or payable by the transferor; provided, however, that this exclusion (xiii) shall not apply to any transferee that acquires its interest while an Event of Default is continuing; and

 

(xiv)        Taxes imposed on or with respect to or payable by an Indemnitee that would not have been imposed but for an amendment, supplement, modification, consent or waiver to any Operative Document not initiated, requested or consented to by Lessee unless such amendment, supplement, modification, consent or waiver (1) arises due to, or in connection with there having occurred, an Event of Default or (2) is required by the terms of the Operative Documents or is executed in connection with any amendment to the Operative Documents required by law.

 

Notwithstanding the foregoing, the exclusions from the definition of “Impositions” set forth in clauses (i), (ii), (iv) and (x) shall not apply (but the other exclusions shall apply) to any Taxes or any increase in Taxes imposed on a Tax Indemnitee net of any decrease in Taxes realized by such Tax Indemnitee, to the extent that such tax increase or decrease would not have occurred if on the Closing Date the Participants had advanced funds to the Lessee in the form of a loan secured by the Subject Property in an amount equal to the amount Funded on the Closing Date, with debt service for such loan equal to the Basic Rent payable on each Payment Date and a principal balance at the maturity of such loan in an amount equal to the then outstanding amount of the Loans and Lessor Amount at the end of the Term of the Lease.

 

This excerpt taken from the SLAB 8-K filed Aug 22, 2005.
provided, further, that Target Shareholders may disclose any documents previously filed by Acquiror with the SEC and available publicly on the SEC website.

 

 5.4     Further Assurances.  The Target Shareholders will take all reasonable actions necessary to facilitate the consummation of the transactions contemplated by this Agreement and will promptly cooperate with and furnish to Acquiror and the Surviving Corporation any information necessary in connection therewith.  The Target Shareholders will take all

 

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reasonable actions necessary to obtain (and will cooperate with the Acquiror and the Surviving Corporation in obtaining) any consent, approval, order or authorization of, or any registration, declaration or filing with, any Governmental Entity or other person, required to be obtained or made in connection with the taking of any action contemplated by this Agreement.

 

 5.5     Expenses.  All costs and expenses (including attorney’s fees) incurred in connection with the Letter Agreement dated June 17, 2005 (the “

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