Common use of Determination of Taxability Clause in Contracts

Determination of Taxability. As provided in Section 5.02 hereof, the Company shall be obligated and agrees to accelerate the amount of Loan Payments payable hereunder as is determined by the Trustee to be sufficient to redeem the Bonds in whole or (if the redemption of part of the Bonds will preserve the federal income tax exemption of the interest on the remainder of the Bonds as determined by Bond Counsel) in part, upon the, making of a final determination by the Internal Revenue Service or a court of competent jurisdiction as a result of a proceeding in which the Company participates to the degree it deems sufficient, which determination the Company may not contest for any reason or, in discretion, does not contest in a timely manner by an appropriate proceeding, that the interest payable on the Bonds or any of them is includable for federal income tax purposes in the gross income of any Owner of a Bond, other than an Owner who is a "substantial user" of the Project or a "related person" within the meaning of Section 147 of the Code (a "Determination of Taxability"). Upon the occurrence of a Determination of Taxability, the Bonds shall be redeemed in whole unless, in the opinion of Bond Counsel, redemption of a portion of the Bonds Outstanding would have the result that interest payable on the Bonds remaining Outstanding after such redemption would not be includable in the gross income for federal tax purposes of an Owner of a Bond (other than an Owner who is a "substantial user" of the Project or a "related person" within the meaning of Section 147 of the Code). In such event, the Bonds to be redeemed (in the principal amount of $100,000 or any integral multiple of $5,000 in excess thereof) shall be selected by the Trustee as provided in the Indenture in such manner as the Trustee shall in its sole discretion deem fair and appropriate, in such amount as is deemed necessary in the opinion of Bond Counsel to accomplish that result. The redemption described above shall occur at any time not more than (180) days after receipt by the company of the notice of the final determination described above. All Loan Payments payable under this Article XII shall become due and payable on the date fixed for the redemption of such Bonds. The Company agrees that, immediately after receipt by it of notice of either a ruling or court decision to the effect mentioned above, it will inform in writing the Trustee, the Issuer and the Bank that it has received such notice.

Determination of Taxability. As provided in Section 5.02 hereof, the Company shall be obligated and agrees to accelerate the amount (a) If any Holder of Loan Payments payable hereunder as is determined by the Trustee to be sufficient to redeem the Tax-Exempt Series 2021 Bonds in whole or (if the redemption of part of the Bonds will preserve the federal income tax exemption of the interest on the remainder of the Bonds as determined by Bond Counsel) in part, upon the, making of a final determination by receives from the Internal Revenue Service a notice of assessment and demand for payment with respect to interest on any Tax-Exempt Series 2021 Bond, an appeal may be taken by such Holder at the option of either such Holder or a court the Institution. If such appeal is taken at the option of competent jurisdiction as a result of a proceeding the Institution (exercised in which accordance with the Company participates to the degree it deems sufficient, which determination the Company may not contest for any reason or, in discretion, does not contest in a timely manner by an appropriate proceeding, that the interest payable on the Bonds or any of them is includable for federal income tax purposes procedures set forth in the gross income definition of any Owner of a Bond, other than an Owner who is a "substantial user" of the Project or a "related person" within the meaning of Section 147 of the Code (a "“Determination of Taxability"”), all expenses of the appeal including reasonable counsel fees shall be paid by the Institution, and the Institution shall control the procedures and terms relating to such appeal, and such Holder and the Institution shall cooperate and consult with each other in all matters pertaining to any such appeal which the Institution has elected to take, except that no Holder of Bonds shall be required to disclose or furnish any non-publicly disclosed information, including without limitation, financial information and tax returns. Upon Before the occurrence taking of any appeal which the Institution has elected to take, however, the Bondholder shall have the right to require the Institution to pay the tax assessed and conduct the appeal as a contest for reimbursement. (b) In the event of a Determination of Taxability, the Bonds Gross-Up Rate shall be redeemed in whole unless, in the opinion of Bond Counsel, redemption of a portion of the Bonds Outstanding would have the result that interest become payable on the Bonds remaining Outstanding after such redemption would not be includable in Tax-Exempt Series 2021 Bonds, and the gross income for federal tax purposes of Institution shall make an Owner of additional loan payment on each Interest Payment Date so that the total payment to each Initial Purchaser on each Interest Payment Date is at a Bond rate equal to the Gross-Up Rate. (other than an Owner who is a "substantial user" c) The obligation of the Project or a "related person" within Institution to make the meaning of payments provided for in this Section 147 shall be absolute and unconditional, and the failure of the Code). In such eventIssuer, the Bonds Trustee or any other Person to execute or deliver or cause to be redeemed (in the principal amount of $100,000 delivered any documents or to take any integral multiple of $5,000 in excess thereof) shall be selected by the Trustee as provided in the Indenture in such manner as the Trustee shall in its sole discretion deem fair and appropriate, in such amount as is deemed necessary in the opinion of Bond Counsel to accomplish that result. The redemption described above shall occur at any time not more than (180) days after receipt by the company of the notice of the final determination described above. All Loan Payments payable action required under this Article XII Agreement or otherwise shall become due and payable on not relieve the date fixed for the redemption Institution of such Bonds. The Company agrees that, immediately after receipt by it of notice of either a ruling or court decision to the effect mentioned above, it will inform in writing the Trustee, the Issuer and the Bank that it has received such noticeits obligation under this Section.

Determination of Taxability. As provided in Section 5.02 hereofThe Company is obligated, under the Company Sublease, to give prompt notice to the Trustee of any Determination of Taxability (as defined below) of which it is aware. The Trustee shall be obligated and agrees to accelerate cause the amount of Loan Payments payable hereunder as is determined by the Trustee Bonds to be sufficient redeemed within one hundred eighty (180) days after a Determination of Taxability shall have occurred at a redemption price equal to redeem 100% of the Bonds in whole or (if principal amount thereof plus accrued interest to the redemption date. A " Determination of part of the Bonds will preserve the federal income tax exemption of the interest on the remainder of the Bonds as determined by Bond Counsel) in part, upon the, making of Taxability" shall be deemed to occur if a final determination by decree or judgment of any federal court or a final action of the Internal Revenue Service determines that interest paid or a court of competent jurisdiction as a result of a proceeding in which the Company participates to the degree it deems sufficient, which determination the Company may not contest for any reason or, in discretion, does not contest in a timely manner by an appropriate proceeding, that the interest payable on any Bond is or was includable in the gross income of an Owner of the Bonds or any of them is includable for federal income tax purposes in the gross income of any Owner of a Bond, other than an Owner who is a "substantial user" of the Project or a "related person" within the meaning of Section 147 of under the Code (a "Determination of Taxability"). Upon the occurrence of a Determination of Taxability, the Bonds shall be redeemed in whole unless, in the opinion of Bond Counsel, redemption of a portion of the Bonds Outstanding would have the result that interest payable on the Bonds remaining Outstanding after such redemption would not be includable in the gross income for federal tax purposes of an Owner of a Bond (other than an Owner who is a "substantial user" of the Project user or a "related person" person within the meaning of Section 147 103(b) of the Code). In No such eventdecree, judgment, or action will be considered final for this purpose, however, unless the Bonds Company has been given written notice and, if it is so desired and is legally allowed, has been afforded the opportunity to be redeemed (contest the same, either directly or in the principal amount name of $100,000 any Owner of a Bond, and until conclusion of any appellate review, if sought. If the Trustee receives written notice from any Owner of Bonds stating that (i) the Owner of Bonds has been notified in writing by the Internal Revenue Service that it proposes to include the interest on any Bond in the gross income of such Owner of Bonds for the reasons described herein or any integral multiple other proceeding has been instituted against such Owner of $5,000 in excess thereofBonds which may lead to a final decree, judgment, or action as described herein, and (ii) shall be selected by such Owner of Bonds will afford the Trustee as provided Company the opportunity to contest the same, either directly or in the Indenture in such manner as name of the owner of Bonds, until a conclusion of any appellate review, if sought, then the Trustee shall in its sole discretion deem fair promptly give notice thereof to the Company, the Authority, the Bank and appropriate, in such amount as is deemed necessary in the opinion Owner of each Bond Counsel to accomplish that resultOutstanding. The redemption described above Trustee shall occur at thereafter coordinate any time not more than (180) days after receipt by the company similar requests or notices it may have received from other Owners of Bonds and shall keep them informed of the progress of any administrative proceedings or litigation. If a Determination of Taxability is made, the Trustee shall give notice of the final determination described above. All Loan Payments payable under this Article XII shall become due and payable on redemption of the Bonds at the earliest practicable date, but not later than the date fixed for specified in this Section, and in the redemption manner provided by Section 8.05 of such Bonds. The Company agrees that, immediately after receipt by it of notice of either a ruling or court decision to the effect mentioned above, it will inform in writing the Trustee, the Issuer and the Bank that it has received such noticethis Indenture.

Determination of Taxability. As provided in Section 5.02 hereof, the The Company shall be obligated to prepay the amounts payable hereunder, and agrees to accelerate the amount of Loan Payments payable hereunder as is determined by the Trustee to be sufficient to redeem the Bonds in whole or (if the accordingly cause redemption of part of the Bonds will preserve pursuant to Section 3.01(a)(ii) of the Indenture, within one hundred eighty (180) days after a Determination of Taxability (as defined below) shall have occurred by prepaying an amount equal to, when added to other funds on deposit in the Bond Fund, (a) 100% of the aggregate principal amount of Bonds Outstanding at the time of a Determination of Taxability plus accrued interest to the redemption date, plus (b) an amount of money equal to the Trustee’s and Paying Agent’s fees and expenses under the Indenture accrued and to accrue until such prepayment and redemption of the Bonds, plus (c) an amount of money equal to all sums due to the Authority under this Agreement. A “Determination of Taxability” shall have been deemed to occur if, as a result of an Event of Taxability, a final decree or judgment of any federal court or a final action of the Internal Revenue Service determines that interest paid or payable on any Bond is or was includable in the gross income of a holder, Beneficial Owner, former holder or former Beneficial Owner of the Bonds for federal income tax exemption purposes under Section 103 (or a successor provision to Section 103) of the interest on Code (other than a holder who is or was a substantial user or related person within the remainder meaning of Section 147(a) of the Bonds as determined by Bond Counsel) Code). However, no such decree or action will be considered final for this purpose unless the Company has been given written notice and, if it is so desired and is legally allowed, has been afforded the opportunity to contest the same, either directly or in partthe name of any holder, upon theBeneficial Owner, making former holder or former Beneficial Owner of a final determination Bond, provided that in the event the Company contests such decree or action in the name of a holder, Beneficial Owner, former holder or former Beneficial Owner of a Bond, the Company agrees to pay all expenses of such contest and offers such holder, Beneficial Owner, former holder or former Beneficial Owner indemnity with respect to such expenses, and until conclusion of any appellate review, if sought. If the Trustee receives written notice from any such holder, Beneficial Owner, former holder or former Beneficial Owner stating that (a) the holder, Beneficial Owner, former holder or former Beneficial Owner has been notified in writing by the Internal Revenue Service or a court of competent jurisdiction as a result of a proceeding in which the Company participates that it proposes to the degree it deems sufficient, which determination the Company may not contest for any reason or, in discretion, does not contest in a timely manner by an appropriate proceeding, that include the interest payable on the Bonds or any of them is includable for federal income tax purposes Bond in the gross income of such holder, Beneficial Owner, former holder or former Beneficial Owner for the reasons described herein or any other proceeding has been instituted against such holder, Beneficial Owner, former holder or former Beneficial Owner which may lead to a final decree or action as described herein and (b) such holder, Beneficial Owner, former holder or former Beneficial Owner will afford the Company the opportunity to contest the same, either directly or in the name of such holder, Beneficial Owner, former holder or former Beneficial Owner, provided that in the event the Company contests such decree or action in the name of a holder, Beneficial Owner, former holder or former Beneficial Owner of a Bond, the Company agrees to pay all expenses of such contest and offers such holder, Beneficial Owner, former holder or former Beneficial Owner indemnity with respect to such expenses, and until a conclusion of any appellate review, if sought, and the Trustee is satisfied that such information is accurate, then the Trustee shall promptly give written notice thereof to the Company and the Authority and to each such holder, Beneficial Owner, former holder or former Beneficial Owner and to all other than an Owner who is a "substantial user" registered owners of the Project Bonds. The Trustee shall thereafter coordinate any similar requests or a "related person" within the meaning of Section 147 notices it may have received from other holders, Beneficial Owners, former holders or former Beneficial Owners and shall keep them informed of the Code (progress of any administrative proceedings or litigation. If a "Determination of Taxability"). Upon the occurrence of a Determination of Taxabilityfinal decree or action as described above thereafter occurs, the Bonds Trustee shall be redeemed in whole unless, in make the opinion required demand for prepayment of Bond Counsel, the amounts payable hereunder and redemption of a portion of the Bonds Outstanding would have the result that interest payable on the Bonds remaining Outstanding after such redemption would not be includable in the gross income for federal tax purposes of an Owner of a Bond (other than an Owner who is a "substantial user" of the Project or a "related person" within the meaning of Section 147 of the Code). In such event, the Bonds to be redeemed (in the principal amount of $100,000 or any integral multiple of $5,000 in excess thereof) shall be selected by the Trustee as provided in the Indenture in such manner as the Trustee shall in its sole discretion deem fair and appropriate, in such amount as is deemed necessary in the opinion of Bond Counsel to accomplish that result. The redemption described above shall occur at any time not more than (180) days after receipt by the company of the give notice of the final determination described above. All Loan Payments payable under this Article XII shall become due and payable on redemption of the Bonds at the earliest practical date, but not later than the date fixed for specified in this Article, and in the redemption manner provided by Section 3.02 of such Bonds. The Company agrees that, immediately after receipt by it of notice of either a ruling or court decision to the effect mentioned above, it will inform in writing the Trustee, the Issuer and the Bank that it has received such noticeIndenture.

Determination of Taxability. As provided in Section 5.02 hereof, the The Company shall be obligated to prepay the amounts payable hereunder, and agrees to accelerate the amount of Loan Payments payable hereunder as is determined by the Trustee to be sufficient to redeem the Bonds in whole or (if the accordingly cause redemption of part of the Bonds will preserve pursuant to Section 3.01(a)(ii) of the Indenture, within 180 days after a Determination of Taxability (as defined below) shall have occurred by prepaying an amount equal to, when added to other funds on deposit in the Bond Fund, (a) 100% of the aggregate principal amount of Bonds Outstanding at the time of a Determination of Taxability plus accrued interest to the redemption date, plus (b) an amount of money equal to the Trustee’s and Paying Agent’s fees and expenses under the Indenture accrued and to accrue until such prepayment and redemption of the Bonds, plus (c) an amount of money equal to all sums due to the Authority under this Agreement. A “Determination of Taxability” shall have been deemed to occur if, as a result of an Event of Taxability, a final decree or judgment of any federal court or a final action of the Internal Revenue Service determines that interest paid or payable on any Bond is or was includable in the gross income of a holder, Beneficial Owner, former holder or former Beneficial Owner of the Bonds for federal income tax exemption purposes under Section 103 (or a successor provision to Section 103) of the interest on Code (other than a holder who is or was a substantial user or related person within the remainder meaning of Section 147(a) of the Bonds as determined by Bond Counsel) Code). However, no such decree or action will be considered final for this purpose unless the Company has been given written notice and, if it is so desired and is legally allowed, has been afforded the opportunity to contest the same, either directly or in partthe name of any holder, upon theBeneficial Owner, making former holder or former Beneficial Owner of a final determination Bond, provided that in the event the Company contests such decree or action in the name of a holder, Beneficial Owner, former holder or former Beneficial Owner of a Bond, the Company agrees to pay all expenses of such contest and offers such holder, Beneficial Owner, former holder or former Beneficial Owner indemnity with respect to such expenses, and until conclusion of any appellate review, if sought. If the Trustee receives written notice from any such holder, Beneficial Owner, former holder or former Beneficial Owner stating that (a) the holder, Beneficial Owner, former holder or former Beneficial Owner has been notified in writing by the Internal Revenue Service or a court of competent jurisdiction as a result of a proceeding in which the Company participates that it proposes to the degree it deems sufficient, which determination the Company may not contest for any reason or, in discretion, does not contest in a timely manner by an appropriate proceeding, that include the interest payable on the Bonds or any of them is includable for federal income tax purposes Bond in the gross income of such holder, Beneficial Owner, former holder or former Beneficial Owner for the reasons described herein or any other proceeding has been instituted against such holder, Beneficial Owner, former holder or former Beneficial Owner which may lead to a final decree or action as described herein and (b) such holder, Beneficial Owner, former holder or former Beneficial Owner will afford the Company the opportunity to contest the same, either directly or in the name of such holder, Beneficial Owner, former holder or former Beneficial Owner, provided that in the event the Company contests such decree or action in the name of a holder, Beneficial Owner, former holder or former Beneficial Owner of a Bond, the Company agrees to pay all expenses of such contest and offers such holder, Beneficial Owner, former holder or former Beneficial Owner indemnity with respect to such expenses, and until a conclusion of any appellate review, if sought, and the Trustee is satisfied that such information is accurate, then the Trustee shall promptly give written notice thereof to the Company and the Authority and to each such holder, Beneficial Owner, former holder or former Beneficial Owner and to all other than an Owner who is a "substantial user" registered owners of the Project Bonds. The Trustee shall thereafter coordinate any similar requests or a "related person" within the meaning of Section 147 notices it may have received from other holders, Beneficial Owners, former holders or former Beneficial Owners and shall keep them informed of the Code (progress of any administrative proceedings or litigation. If a "Determination of Taxability"). Upon the occurrence of a Determination of Taxabilityfinal decree or action as described above thereafter occurs, the Bonds Trustee shall be redeemed in whole unless, in make the opinion required demand for prepayment of Bond Counsel, the amounts payable hereunder and redemption of a portion of the Bonds Outstanding would have the result that interest payable on the Bonds remaining Outstanding after such redemption would not be includable in the gross income for federal tax purposes of an Owner of a Bond (other than an Owner who is a "substantial user" of the Project or a "related person" within the meaning of Section 147 of the Code). In such event, the Bonds to be redeemed (in the principal amount of $100,000 or any integral multiple of $5,000 in excess thereof) shall be selected by the Trustee as provided in the Indenture in such manner as the Trustee shall in its sole discretion deem fair and appropriate, in such amount as is deemed necessary in the opinion of Bond Counsel to accomplish that result. The redemption described above shall occur at any time not more than (180) days after receipt by the company of the give notice of the final determination described above. All Loan Payments payable under this Article XII shall become due and payable on redemption of the Bonds at the earliest practical date, but not later than the date fixed for specified in this Article, and in the redemption manner provided by Section 3.02 of such Bonds. The Company agrees that, immediately after receipt by it of notice of either a ruling or court decision to the effect mentioned above, it will inform in writing the Trustee, the Issuer and the Bank that it has received such noticeIndenture.