Common use of Calculation of General Tax Indemnity Payments; Tax Savings Clause in Contracts

Calculation of General Tax Indemnity Payments; Tax Savings. Any payment or indemnity to or for the benefit of any Indemnified Person with respect to any Tax which is subject to indemnification under Section 6.2(a) hereof shall be made on an After-Tax Basis. If, by reason of any payment made on an "After-Tax Basis" to or for the account of an Indemnified Person by or on behalf of the Lessee pursuant to Section 6.1, this Section 6.2, Article VII, or any other Operative Document other than the Tax Indemnity Agreement (or the circumstances or event giving rise thereto) such Indemnified Person or any of its Affiliates realizes a net Tax benefit, refund, saving, deduction or credit that results in a reduction in Taxes for which the Lessee is not required to indemnify such Indemnified Person under this Agreement or the other Operative Documents and such reduction in Taxes was not previously taken into account in computing the amount of the payment to such Indemnified Person, such Indemnified Person shall pay to the Lessee on an After-Tax Basis an amount equal to the net reduction in Taxes, if any, as determined in good faith by the Indemnified Person, realized by such Indemnified Person or any of its Affiliates which is attributable to such net Tax benefit, refund, saving, deduction or credit. The Indemnified Person shall make such payment within 30 days after it or any of its Affiliates actually realizes such reduction in Taxes. Each of the Owner Participant, the Owner Trustee and the Trust Estate agrees to use its reasonable efforts and to cause its Affiliates (in a manner consistent with its overall financial and public relations interests) to seek and claim, and further agrees to take such actions as the Lessee may reasonably request, as long as such efforts or actions do not expose such Persons to a risk of material adverse consequences (determined in good faith judgment of the Indemnified Person), and such Indemnified Person is indemnified in a manner satisfactory to such Indemnified Party, determined in its sole discretion for any adverse consequences, to realize any refunds, deductions or other tax benefits that would reduce the Lessee's indemnity obligations hereunder. Any costs incurred by an Indemnified Person in pursuing the actions contemplated by the preceding sentence shall be for the account of the Lessee. Notwithstanding the foregoing provisions of this Section 6.2(c), (A) an Indemnified Person shall not be obligated to make any payment pursuant to this Section 6.2(c) if, and for so long as, a Material Default or an Event of Default shall have occurred and be continuing (but shall hold such amount for the benefit of the Lessee and pay such withheld amount to the Lessee promptly following the date on which the Material Default or Event of Default is no longer continuing) and (B) to the extent the amount of such payment by the Indemnified Person to the Lessee made pursuant to Section 6.2(c) (all determined without regard to any amount necessary to make such payments on an After-Tax Basis) would exceed the excess of all payments made on an After-Tax Basis by the Lessee to such Indemnified Person pursuant to Section 6.1, Section 6.2(a), Article VII or the other Operative Documents other than the Tax Indemnity Agreement (all determined without regard to any amount necessary to make such payments on an After-Tax Basis) over the amount of all prior payments by such Indemnified Person to the Lessee of tax benefits pursuant to this paragraph (c) (determined without regard to any amounts necessary to make such payments on an After-Tax Basis), such excess shall not be paid but shall be carried forward and shall reduce the Lessee's obligation to make subsequent payments on an After-Tax Basis to such Indemnified Person under Section 6.1, Section 6.2(a), Article VII or the other Operative Documents other than the Tax Indemnity Agreement. Any Taxes that are imposed on any Indemnified Person (or any of its Affiliates)as a result of the disallowance, unavailability, recapture or reduction of any tax benefit, savings, deduction or credit referred to in this Section 6.2(c) as to which an Indemnified Person has made a payment to the Lessee or which was otherwise taken into account under Section 6.1, Section 6.2, Article VII or the other Operative Documents other than the Tax Indemnity Agreement shall be treated as a Tax for which the Lessee must indemnify such Indemnified Person hereunder without regard to Section 6.2(b) or (d) hereof. Notwithstanding the preceding, the Lessee and the Owner Participant agree that the obligation of the Owner Participant to reimburse the Lessee in the case of payments made by the Lessee pursuant to Article VII which are made as a result of the Owner Participant being a Non-U.S. Person shall be governed by the provisions of Article VII.

Calculation of General Tax Indemnity Payments; Tax Savings. Any payment or indemnity to or for the benefit of any Indemnified Person Tax Indemnitee with respect to any Tax which is subject to indemnification under Section 6.2(a) hereof shall be made (A) reflect the current combined net savings actually realized by such Tax Indemnitee thereof resulting from the current deduction of such indemnified Tax and (B) include, after taking into account the savings described in clause (A), the amount necessary to hold such Tax Indemnitee harmless on an After-Tax Basis. If, by reason of any Tax payment made on an "After-Tax Basis" to or for the account of an Indemnified Person a Tax Indemnitee by or on behalf of the Co-Lessee pursuant to Section 6.1, this Section 6.2, Article VII, or any other Operative Document other than the Tax Indemnity Agreement 6.2 (or the circumstances or event giving rise thereto) ), such Indemnified Person or any of its Affiliates Tax Indemnitee actually realizes a net Tax tax benefit, refund, saving, deduction or credit that results in a reduction in Taxes for which the Lessee is not required to indemnify such Indemnified Person under this Agreement or the other Operative Documents and such reduction in Taxes was not previously taken into account in computing the amount such Tax payment, provided no Termination Event or Lease Event of the payment to such Indemnified PersonDefault has occurred and is continuing, such Indemnified Person Tax Indemnitee shall pay to the Co-Lessee on an After-Tax Basis an amount equal to the sum of (I) the actual net reduction in Taxes, if any, as determined in good faith by the Indemnified Person, realized by such Indemnified Person or any of its Affiliates Tax Indemnitee which is attributable to such net Tax tax benefit, refund, saving, savin deduction or creditcredit and (II) the actual net reduction in any Taxes realized by such Tax Indemnitee as the result of any payment made by such Tax Indemnitee pursuant to this sentence. The Indemnified Person Tax Indemnitee shall make such payment within 30 days after it or any of its Affiliates actually realizes realizing such reduction in Taxes. Each Notwithstanding the foregoing, no Tax Indemnitee shall be required to make any payment to the Co-Lessee pursuant to this Section 6.2(c) to the extent such payment would exceed, in the aggregate at any time, the amount of all prior payments made by or on behalf of the Owner Participant, Co-Lessee to such Tax Indemnitee pursuant to this Section 6.2 or if the Owner Trustee and the Trust Estate amount of such payment is not readily ascertainable by such Tax Indemnitee. Each Tax Indemnitee (other than a Lender) agrees to use its reasonable efforts and to cause its Affiliates (in a manner consistent with its overall financial and public relations interests) to seek and claimefforts, and further agrees to take such actions as the Co-Lessee or Lessee may reasonably request, as long as such efforts or actions do action does not expose such Persons Tax Indemnitee or any Affiliate thereof to a risk of material adverse consequences (determined in good faith judgment of the Indemnified PersonTax Indemnitee), and such Indemnified Person is indemnified in a manner satisfactory to such Indemnified Party, determined in its sole discretion for any adverse consequences, to realize any refunds, deductions or other tax benefits that would reduce the Co-Lessee's indemnity obligations hereunder. Any costs incurred by an Indemnified Person a Tax Indemnitee in pursuing the actions contemplated by the preceding sentence shall be for the account of the Co-Lessee. Notwithstanding the foregoing provisions of this Section 6.2(c), (A) an Indemnified Person shall not be obligated to make any payment pursuant to this Section 6.2(c) if, and for so long as, a Material Default or an Event of Default shall have occurred and be continuing (but shall hold such amount for the benefit of the Lessee and pay such withheld amount to the Lessee promptly following the date on which the Material Default or Event of Default is no longer continuing) and (B) to the extent the amount of such payment by the Indemnified Person to the Lessee made pursuant to Section 6.2(c) (all determined without regard to any amount necessary to make such payments on an After-Tax Basis) would exceed the excess of all payments made on an After-Tax Basis by the Lessee to such Indemnified Person pursuant to Section 6.1, Section 6.2(a), Article VII or the other Operative Documents other than the Tax Indemnity Agreement (all determined without regard to any amount necessary to make such payments on an After-Tax Basis) over the amount of all prior payments by such Indemnified Person to the Lessee of tax benefits pursuant to this paragraph (c) (determined without regard to any amounts necessary to make such payments on an After-Tax Basis), such excess shall not be paid but shall be carried forward and shall reduce the Lessee's obligation to make subsequent payments on an After-Tax Basis to such Indemnified Person under Section 6.1, Section 6.2(a), Article VII or the other Operative Documents other than the Tax Indemnity Agreement. Any Taxes that are imposed on any Indemnified Person (or any of its Affiliates)as Tax Indemnitee as a result of the disallowance, unavailability, recapture or reduction of any a tax benefit, savings, deduction or credit referred to in this Section 6.2(c) as to which an Indemnified Person a Tax Indemnitee has made a payment to the Co- Lessee or which was otherwise taken into account under this Section 6.1, Section 6.2, Article VII or the other Operative Documents other than the Tax Indemnity Agreement 6.2 shall be treated as a Tax tax for which the Co-Lessee must indemnify such Indemnified Person Tax Indemnitee hereunder without regard to Section 6.2(b) or (d) hereof. Notwithstanding the preceding, the Lessee and the Owner Participant agree that the obligation of the Owner Participant to reimburse the Lessee in the case of payments made by the Lessee pursuant to Article VII which are made as a result of the Owner Participant being a Non-U.S. Person shall be governed by the provisions of Article VII.

Calculation of General Tax Indemnity Payments; Tax Savings. Any payment or indemnity to or for the benefit of any Indemnified Person a Tax Indemnitee with respect to any Tax which is subject to indemnification under Section 6.2(a9(a) hereof shall (A) be made reduced to reflect the combined net savings then actually realized by such Tax Indemnitee and any Affiliate(s) thereof resulting therefrom or from the event giving rise to such tax and (B) include, after taking into account the savings described in clause (A), the amount necessary to hold such Tax Indemnitee harmless on an After-Tax Basis; provided, however, that each Tax Indemnitee and each Affiliate thereof shall provide in writing such certifications, information and documentation within their control as shall be reasonably requested by the Lessee to minimize any payment pursuant to this Section 9, as long as the provision of such certification, information, or documentation does not expose a Tax Indemnitee or an Affiliate thereof to a material risk of material adverse consequences (determined in the reasonable good faith judgment of such Tax Indemnitee). If, by reason of any Tax payment made on an "After-Tax Basis" to or for the account of an Indemnified Person a Tax Indemnitee by or on behalf of the Lessee pursuant to Section 6.1, this Section 6.2, Article VII, or any other Operative Document other than the Tax Indemnity Agreement 9 (or the circumstances or event giving rise thereto,) such Indemnified Person Tax Indemnitee or any of its Affiliates Affiliate thereof realizes a net Tax benefit, refund, saving, deduction or credit that results in a reduction in Taxes for which the Lessee is not required to indemnify such Indemnified Person under this Agreement or the other Operative Documents and such reduction in Taxes was not previously taken into account in computing the amount of the payment to such Indemnified Personpayment, such Indemnified Person Tax Indemnitee shall within 30 days pay to the Lessee on an After-Tax Basis an amount equal to the sum of (I) the actual net reduction in Taxes, if any, as determined in good faith by the Indemnified Person, realized by such Indemnified Person or any of Tax Indemnitee and its Affiliates which is attributable to such net Tax benefit, refund, saving, deduction or creditcredit and (II) the actual net reduction in any Taxes realized by such Tax Indemnitee and its Affiliates as the result of any payment made by such Tax Indemnitee. The Indemnified Person Notwithstanding the foregoing, no Tax Indemnitee shall be required to make any payment to the Lessee pursuant to this Section 9(d) to the extent such payment within 30 days after it would exceed, in the aggregate at any time, the amount of all prior payments made by or on behalf of the Lessee to such Tax Indemnitee (including its successors, assigns and Affiliates) pursuant to this Section 9. If any amount otherwise payable to the Lessee is not payable by reason of the occurrence and continuation of a Default, such amount shall be payable when such Default is no longer continuing. Any Taxes that are imposed on any Tax Indemnitee as a result of the disallowance, unavailability, recapture or reduction of any Tax benefit, savings, deduction, credit or refund referred to in this paragraph or taken into account in computing the amount payable by Lessee hereunder as to which a Tax Indemnitee has made a payment to Lessee, shall be treated as a Tax for which Lessee must indemnify such Tax Indemnitee hereunder without regard to any of its Affiliates actually realizes such reduction the exclusions set forth in TaxesSection 9(b) hereof other than Sections 9(b)(iii) and 9(b)(v). Each of the Owner Participant, the Owner Trustee and the Trust Estate Tax Indemnitee agrees to use its reasonable efforts and to cause its Affiliates (in a manner consistent with its overall financial and public relations interests) to seek and claimbest efforts, and further agrees to take consider in good faith such actions as the Lessee may reasonably request, as long as such efforts or actions do not expose such Persons to a risk of material adverse consequences (determined in good faith judgment of the Indemnified Person), and such Indemnified Person is indemnified in a manner satisfactory to such Indemnified Party, determined in its sole discretion for any adverse consequences, to realize any Tax refunds, deductions deductions, benefits or other tax benefits savings that would reduce the Lessee's indemnity obligations hereunderobligation or would be required to be paid by such Tax Indemnitee to the Lessee as soon as they are available. Any reasonable costs incurred by an Indemnified Person a Tax Indemnitee in pursuing the actions contemplated by the preceding sentence shall be for the account of the Lessee. Notwithstanding the foregoing provisions of this Section 6.2(c), (A) an Indemnified Person shall not be obligated to make any payment pursuant to this Section 6.2(c) if, and for so long as, a Material Default or an Event of Default shall have occurred and be continuing (but shall hold such amount for the benefit of the Lessee and pay such withheld amount to the Lessee promptly following the date on which the Material Default or Event of Default is no longer continuing) and (B) to the extent the amount of such payment by the Indemnified Person to the Lessee made pursuant to Section 6.2(c) (all determined without regard to any amount necessary to make such payments on an After-Tax Basis) would exceed the excess of all payments made on an After-Tax Basis by the Lessee to such Indemnified Person pursuant to Section 6.1, Section 6.2(a), Article VII or the other Operative Documents other than the Tax Indemnity Agreement (all determined without regard to any amount necessary to make such payments on an After-Tax Basis) over the amount of all prior payments by such Indemnified Person to the Lessee of tax benefits pursuant to this paragraph (c) (determined without regard to any amounts necessary to make such payments on an After-Tax Basis), such excess shall not be paid but shall be carried forward and shall reduce the Lessee's obligation to make subsequent payments on an After-Tax Basis to such Indemnified Person under Section 6.1, Section 6.2(a), Article VII or the other Operative Documents other than the Tax Indemnity Agreement. Any Taxes that are imposed on any Indemnified Person (or any of its Affiliates)as a result of the disallowance, unavailability, recapture or reduction of any tax benefit, savings, deduction or credit referred to in this Section 6.2(c) as to which an Indemnified Person has made a payment to the Lessee or which was otherwise taken into account under Section 6.1, Section 6.2, Article VII or the other Operative Documents other than the Tax Indemnity Agreement shall be treated as a Tax for which the Lessee must indemnify such Indemnified Person hereunder without regard to Section 6.2(b) or (d) hereof. Notwithstanding the preceding, the Lessee and the Owner Participant agree that the obligation of the Owner Participant to reimburse the Lessee in the case of payments made by the Lessee pursuant to Article VII which are made as a result of the Owner Participant being a Non-U.S. Person shall be governed by the provisions of Article VII.

Calculation of General Tax Indemnity Payments; Tax Savings. Any payment or indemnity to or for the benefit of any Indemnified Person an Indemnitee with respect to any Tax which is subject to indemnification under Section 6.2(a9(a) hereof shall be made (A) reflect the combined net savings realized by such Indemnitee and any Affiliate(s) thereof resulting from the current deduction of such indemnified Tax and (B) include, after taking into account the savings described in clause (A), the amount necessary to hold such Indemnitee harmless on an After-Tax Basis; provided, however, that each Indemnitee and each Affiliate thereof shall provide such certifications, information and documentation within their control as shall be reasonably requested by the Lessee to minimize any payment pursuant to this Section 9. If, by reason of any Tax payment made on an "After-Tax Basis" to or for the account of an Indemnified Person Indemnitee by or on behalf of the Lessee pursuant to Section 6.1, this Section 6.2, Article VII, or any other Operative Document other than the Tax Indemnity Agreement 9 (or the circumstances or event giving rise thereto,) such Indemnified Person Indemnitee or any of its Affiliates Affiliate thereof realizes a net Tax benefit, refund, saving, deduction or credit that results in a reduction in Taxes for which the Lessee is not required to indemnify such Indemnified Person under this Agreement or the other Operative Documents and such reduction in Taxes was not previously taken into account in computing the amount of the payment to such Indemnified Personpayment, such Indemnified Person Indemnitee shall promptly pay to the Lessee on an After-Tax Basis an amount equal to the sum of (I) the net reduction in Taxes, if any, as determined in good faith by the Indemnified Person, realized by such Indemnified Person or any of Indemnitee and its Affiliates which is attributable to such net Tax benefit, refund, saving, deduction or credit. The Indemnified Person shall make credit and (II) the net reduction in any Taxes realized by such payment within 30 days after it or any of Indemnitee and its Affiliates actually realizes as the result of any payment made by such reduction in TaxesIndemnitee. Each For purposes of the Owner Participant, the Owner Trustee and the Trust Estate agrees to use its reasonable efforts preceding sentence and to cause its Affiliates (the extent permitted by Applicable Laws, such Indemnitee shall be deemed to realize, first, all items of deduction, credit or carryover other than those referred to in a manner consistent with its overall financial and public relations interests) the next clause, and, then, pro rata all such items attributable to seek and claim, and further any leasing transaction entered into by such Indemnitee for which such Indemnitee is entitled to indemnification. Such Indemnitee agrees to take such actions as the Lessee may reasonably request, as long as such efforts or actions do not expose such Persons to a risk of material adverse consequences (determined in good faith judgment of the Indemnified Person), and such Indemnified Person is indemnified in a manner satisfactory to such Indemnified Party, determined in its sole discretion for any adverse consequences, to realize pursue diligently any refunds, deductions deductions, Tax benefits or other tax benefits savings that would reduce the Lessee's ’s indemnity obligations hereunder. Any costs incurred obligation or would be required to be paid by an Indemnified Person in pursuing the actions contemplated by the preceding sentence shall be for the account of the Lessee. Notwithstanding the foregoing provisions of this Section 6.2(c), (A) an Indemnified Person shall not be obligated to make any payment pursuant to this Section 6.2(c) if, and for so long as, a Material Default or an Event of Default shall have occurred and be continuing (but shall hold such amount for the benefit of the Lessee and pay such withheld amount Indemnitee to the Lessee promptly following the date on which the Material Default or Event of Default is no longer continuing) and (B) to the extent the amount of such payment by the Indemnified Person to the Lessee made pursuant to Section 6.2(c) (all determined without regard to any amount necessary to make such payments on an After-Tax Basis) would exceed the excess of all payments made on an After-Tax Basis by the Lessee to such Indemnified Person pursuant to Section 6.1, Section 6.2(a), Article VII or the other Operative Documents other than the Tax Indemnity Agreement (all determined without regard to any amount necessary to make such payments on an After-Tax Basis) over the amount of all prior payments by such Indemnified Person to the Lessee of tax benefits pursuant to this paragraph (c) (determined without regard to any amounts necessary to make such payments on an After-Tax Basis), such excess shall not be paid but shall be carried forward and shall reduce the Lessee's obligation to make subsequent payments on an After-Tax Basis to such Indemnified Person under Section 6.1, Section 6.2(a), Article VII or the other Operative Documents other than the Tax Indemnity Agreement. Any Taxes that as soon as they are imposed on any Indemnified Person (or any of its Affiliates)as a result of the disallowance, unavailability, recapture or reduction of any tax benefit, savings, deduction or credit referred to in this Section 6.2(c) as to which an Indemnified Person has made a payment to the Lessee or which was otherwise taken into account under Section 6.1, Section 6.2, Article VII or the other Operative Documents other than the Tax Indemnity Agreement shall be treated as a Tax for which the Lessee must indemnify such Indemnified Person hereunder without regard to Section 6.2(b) or (d) hereof. Notwithstanding the preceding, the Lessee and the Owner Participant agree that the obligation of the Owner Participant to reimburse the Lessee in the case of payments made by the Lessee pursuant to Article VII which are made as a result of the Owner Participant being a Non-U.S. Person shall be governed by the provisions of Article VIIavailable.