Common use of Exceptions from Indemnity Clause in Contracts

Exceptions from Indemnity. The provisions of Section ------------------------- 7.01 hereof shall not apply to: (i) any withholding Tax functioning as a final tax in respect of any Noteholder and (ii) any Tax on, based on, with respect to, or measured by net or gross income, capital or receipts of any Noteholder or which is in the nature of a franchise or conduct of business tax imposed on such Noteholder or which is in the nature of a minimum tax on tax preferences imposed on a Noteholder (in each case, other than a tax in the nature of a sales, use or rental tax; provided, however, that Lessee shall not be -------- ------- obligated to pay any tax in the nature of a sales, use or rental tax imposed on any Noteholder that results from or is attributable to the fact that such Noteholder is a commercial bank or other financial institution organized under the laws of a jurisdiction other than the United States of America, or a state or territory thereof); (b) any Tax imposed by the United States Federal government based upon or measured by net income and any Tax on, based on, with respect to, or measured by the net income or gross income, capital, or net receipts of any Indemnitee, or which is in the nature of a franchise or conduct of business tax imposed on any Indemnitee for the privilege of doing business, or which is in the nature of a minimum tax on tax preferences imposed on any Indemnitee in each case by any state of the United States or by the United States Virgin Islands (other than any state in which Lessee or any Affiliate thereof owns or operates equipment used in connection with the operation of the Satellites or the Transponders other than, in the case of the Transponders, use by Lessee or any Affiliate thereof for internal purposes, unless such state is also the principal place of business of such Indemnitee, it being agreed that for purposes of this parenthetical clause the United States Virgin Islands shall be treated as a state) (in each case set forth in this subparagraph (b) other than a tax in the nature of a sales, use, value added, property, excise or rental tax); provided, however, that the provisions of subparagraphs (a) and (b) -------- ------- shall not apply to any Taxes imposed upon any indemnity payment made pursuant to Section 7.01 hereof, Article VI hereof or the Tax Indemnification Agreement; (c) in the case of Owner Participant, Owner Trustee or Lessor's Estate, for so long as no Event of Default shall have occurred and be continuing, any Tax that is imposed with respect to any Transponder with respect to any period beginning after the earlier of (i) the expiration of the Lease Term or other termination of the Lease for such Transponder for any reason or, if later and if applicable, the return of the Transponders after such termination or expiration, or (ii) the discharge of Lessee's obligations to pay the Stipulated Loss Value or the Termination Value and all other amounts due under the Lease; provided, however, that this -------- ------- exception shall not apply to Taxes relating to events occurring, or Taxes relating to matters arising, prior to or contemporaneously with such time; (d) in the case of a Noteholder, for so long as no Event of Default shall have occurred and be continuing, any Tax imposed with respect to (i) any period which begins after the payment of all amounts owing to such Noteholder under the Indenture and (ii) the portion of any period which begins before such payment to the extent it occurs after such payment; provided, however, that this exception shall not apply to -------- ------- Taxes relating to events occurring, or Taxes relating to matters arising, prior to or contemporaneously with such payment; (e) any Tax which is being contested in accordance with the provisions of Section 7.04, during the pendency of such contest; provided, however, -------- ------- that Owner Trustee, as Lessor under the Lease with respect to each Transponder, shall be receiving all amounts of Rent when payable, and that each Noteholder shall be receiving all payments of principal and interest on the Notes and all other amounts payable under the Notes and the Indenture when payable, in either case without reduction by reason of such Tax or any other Tax; (f) any Tax (i) that is imposed on any Indemnitee or any Affiliate, or any successor, assign, officer, director, servant, employee or agent thereof, as a result of the willful misconduct or gross negligence, or a failure properly to file returns or statements, whether related or unrelated to the transactions contemplated by the Operative Documents or the Xxxxxx Agreements (unless such failure results from Lessee's failure to provide timely notice of the requirement of such filing or the failure of Lessee to provide information reasonably required in connection with such filing or Lessee's failure to comply with its obligations under Section 7.05), of such Indemnitee or such Affiliate thereof, or such successor, assign, officer, director, servant, employee or agent thereof (other than an act or failure to act required or contemplated under any of the Operative Documents or Xxxxxx Agreements), (ii) that is imposed on any Indemnitee to the extent that such Tax results from the breach of any representation, warranty or covenant in the Operative Documents or Xxxxxx Agreements by such Indemnitee, (iii) that is imposed on any Indemnitee as a result of a claim unrelated to the transaction contemplated herein, (iv) that is imposed on Owner Participant, Owner Trustee or Lessor's Estate because of or in connection with any Owner Participant Lien or Lessor Lien, respectively, (v) that is imposed on Indenture Trustee because of or in connection with any Indenture Trustee's Lien or (vi) that is imposed on any Noteholder because of or in connection with any Noteholder's Lien of such Noteholder;

Exceptions from Indemnity. The Except to the extent necessary to make any payment on an “After-Tax Basis,” the provisions of Section ------------------------- 7.01 hereof shall not apply to: (a) (i) any withholding United States Federal Tax functioning as a final tax in respect of required to be withheld from amounts payable to any Noteholder and (ii) any Tax on, based on, with respect to, or measured by net or gross income, capital or receipts in the case of any Noteholder and its Related Indemnitees, any income, franchise, doing business or which is in the nature of a franchise or conduct of business tax similar Tax imposed on such Noteholder Indemnitee by any taxing jurisdiction by reason of such Indemnitee or which is in the nature of a minimum tax on tax preferences imposed on a Noteholder (in each case, other than a tax in the nature of a sales, use or rental tax; provided, however, that Lessee shall not be -------- ------- obligated to pay any tax in the nature of a sales, use or rental tax imposed on any Noteholder that results from or is attributable to the fact that such Noteholder is a commercial bank or other financial institution Related Indemnitee being organized under the laws law of a such jurisdiction, conducting activities unrelated to the transactions contemplated by the Operative Documents in such jurisdiction other than or otherwise having any nexus with such jurisdiction unrelated to the United States of America, or a state or territory thereof)transactions contemplated by the Operative Documents; (b) in the case of Lessor, Owner Participant and their respective Related Indemnitees, any Tax imposed by the United States Federal government based upon or measured by net income and any Tax onstate or local Governmental Authority within the United States that is an income, based onfranchise, with respect todoing business or similar tax to the extent imposed on such Indemnitee by reason of the Indemnitee being organized under the law of, or measured by the net income or gross income, capital, or net receipts of any Indemnitee, or which is in the nature of a franchise or conduct of business tax imposed on any Indemnitee for the privilege of doing businessbusiness in, or which is in the nature of a minimum tax on tax preferences imposed on any Indemnitee in each case by any state of the United States or by the United States Virgin Islands (other than any state in which Lessee or any Affiliate thereof owns or operates equipment used in connection with the operation of the Satellites or the Transponders other than, in the case of the Transponders, use by Lessee or any Affiliate thereof for internal purposes, unless jurisdiction imposing such state is also the principal place of business of such Indemnitee, it being agreed that for purposes of this parenthetical clause the United States Virgin Islands shall be treated as a state) (in each case set forth in this subparagraph (b) other than a tax in the nature of a sales, use, value added, property, excise or rental tax); provided, however, that the provisions of subparagraphs (a) and (b) -------- ------- shall not apply to any Taxes imposed upon any indemnity payment made pursuant to Section 7.01 hereof, Article VI hereof or the Tax Indemnification AgreementTax; (c) in the case of Owner Participant, Owner Trustee or Lessor's Estate, for so long as no Event of Default shall have occurred Participant and be continuingits Related Indemnitees, any Tax that is imposed with respect to any Transponder Buyer’s Transponders with respect to any period beginning after the earlier of (i) the expiration of the Lease Term or other termination of the Lease for such Transponder for any reason or, if later and if applicable, the return of the Buyer’s Transponders after such termination or expiration, or (ii) the discharge of Lessee's ’s obligations to pay the Stipulated Loss Value or the Termination Value and all other amounts due under the Lease; provided, however, that this -------- ------- exception shall not apply to Taxes relating to events occurring, or Taxes relating to matters arising, prior to or contemporaneously with such time; (d) in the case of a Noteholder, for so long as no Event of Default shall have occurred Noteholder and be continuingits Related Indemnitees, any Tax imposed with respect to (i) any period which begins after the following payment in full of all amounts owing to such Noteholder under the Indenture and (ii) the portion of any period which begins before such payment to the extent it occurs after such payment; provided, however, that this exception shall not apply to -------- ------- Taxes relating to events occurring, or Taxes relating to matters arising, prior to or contemporaneously with such payment; XM-4 Participation Agreement (e) any Tax which is being contested in accordance with the provisions of Section 7.04, during the pendency of such contest; provided, however, -------- ------- that Owner Trustee, as Lessor under the Lease with respect to each TransponderBuyer’s Transponders, shall be receiving all amounts of Rent when payable, and that each Noteholder shall be receiving all payments of principal and interest on the Notes and all other amounts payable under the Notes and the Indenture when payable, in either case without reduction by reason of such Tax or any other Tax; ; (f) any Tax (i) that is imposed on any Indemnitee or any Affiliate, or any successor, assign, officer, director, servant, employee or agent thereof, as a result of the willful misconduct or gross negligence, or a failure properly to file returns or statements, whether related or unrelated to the transactions contemplated by the Operative Documents or the Xxxxxx Agreements (unless such failure results from Lessee's failure to provide timely notice of the requirement of such filing or the failure of Lessee to provide information reasonably required in connection with such filing or Lessee's failure to comply with its obligations under Section 7.05), negligence of such Indemnitee or such Affiliate thereof, or such successor, assign, officer, director, servant, employee or agent thereof (other than an act or failure to act required or contemplated under any of the Operative Documents or Xxxxxx Agreements)Related Indemnitee, (ii) that is imposed on any Indemnitee to the extent that such Tax results from the breach of any representation, warranty or covenant in the Operative Documents or Xxxxxx XM Agreements by such Indemnitee or any Related Indemnitee, (iii) that is imposed on any Indemnitee as a result of a claim unrelated to the transaction contemplated herein, (iv) that is imposed on Owner Participant, Owner Trustee Trustee, Lessor’s Estate or Lessor's Estate any Related Indemnitee of Owner Participant because of or in connection with any Owner Participant Lien or Lessor Lien, respectively, (v) that is imposed on Indenture Trustee because of or in connection with any Indenture Trustee's ’s Lien or (vi) that is imposed on any Noteholder or any Related Indemnitee because of or in connection with any Noteholder's ’s Lien of such Noteholder; (g) any Tax imposed on Lessor, Owner Participant or a Related Indemnitee of either with respect to a voluntary sale, transfer, assignment or other voluntary disposition by Owner Participant or any Related Indemnitee, or an involuntary disposition by Owner Trustee or Owner Participant resulting from a default under the Operative Documents or the XM Agreements (other than such a default that results from a default by Lessee) by Owner Participant or Lessor, of Buyer’s Transponders or any part thereof or any interest therein, in any Indemnitee or in Lessor’s Estate; provided, however that this exception shall not apply in the event that such sale, transfer, assignment or other disposition shall occur as the result of any acts pursuant to Sections 7, 8, 12, 16 or 19 of the Lease; (h) any Tax to the extent such Tax (i) would have been imposed on an Indemnitee had it or a Related Indemnitee not engaged in the transaction contemplated herein or (ii) arises as a result of activities conducted by such Indemnitee or a Related Indemnitee in the jurisdiction imposing such Taxes that are unrelated to the transactions contemplated herein; (i) any penalties, fines, additions to Tax and interest to the extent not directly attributable to a Tax indemnified against hereunder; (j) any estate, inheritance or succession Tax imposed on any Indemnitee; (k) any Tax on, with respect to or measured by any trustee fees received by Lessor, Owner Trustee or Indenture Trustee for services rendered under the Trust Agreement or the Indenture; (l) any Taxes imposed on an Indemnitee resulting from the failure of such Indemnitee or a Related Indemnitee, after timely written request of Lessee, to file when due any applicable report or return required of such Indemnitee by a taxing authority or remit any Tax timely and in the form prescribed by law, unless such failure results from or relates to a failure of Lessee to satisfy its obligations under this Article VII; XM-4 Participation Agreement (m) Taxes imposed on an Indemnitee that would not have been imposed but for any failure of the Indemnitee or a Related Indemnitee, after written notification by Lessee of such requirement within a reasonable period prior to the required date of compliance, to comply with any applicable certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes, if such compliance is required by statute or regulation of the jurisdiction imposing such Tax as a precondition to any available relief or exemption from or reduction in such Taxes; (n) Taxes payable by a successor, assignee or transferee (including any transfer by merger, consolidation, liquidation, reorganization or otherwise by operation of law) of any Indemnitee, or a Related Indemnitee of such successor, assignee or transferee, to the extent of the excess (measured on the date of such succession, transfer or assignment) of the amount of Taxes that would have been indemnified by Lessee under Section 7.01 but for this clause (n) over the amount of Taxes that would have been imposed on the predecessor, transferor or assignor Indemnitee and indemnified by Lessee under this Article VII had there not been such succession, transfer or assignment; provided, that this clause (n) shall not apply (i) with respect to any transfer made at the request of Lessee or occurring in connection with the exercise of remedies while an Event of Default is continuing, and (ii) to any amounts necessary to make any payment required to be made under the Operative Documents on an After-Tax Basis; and (o) any Tax imposed on any Noteholder or a Related Indemnitee with respect to a voluntary sale, transfer, assignment or other voluntary disposition by such Noteholder or any Related Indemnitee, or an involuntary disposition by such Noteholder or any Related Indemnitee (other than such an involuntary disposition that results from a default by Lessee, Owner Participant or Lessor), of any interest in a Note, any other Operative Document or any any other Indemnitee; provided, however that this exception shall not apply in the event that such sale, transfer, assignment or other disposition shall occur as the result of any acts pursuant to Sections 7, 8, 12, 16 or 19 of the Lease.

Exceptions from Indemnity. The provisions of Section ------------------------- 7.01 hereof shall not apply to: (i) any withholding Tax functioning as a final tax in respect of any Noteholder Noteholder; and (ii) any Tax on, based on, with respect to, or measured by net or gross income, capital or receipts of any Noteholder or which is in the nature of a franchise or conduct of business tax imposed on such Noteholder or which is in the nature of a minimum tax on tax preferences imposed on a Noteholder (in each case, other than a tax in the nature of a sales, use or rental tax; provided, however, that Lessee Lessees shall not be -------- ------- obligated to pay any tax in the nature of a sales, use or rental tax imposed on any Noteholder that results from or is attributable to the fact that such Noteholder is a commercial bank or other financial institution organized under the laws of a jurisdiction other than the United States of America, or a state State or territory thereof); (b) any Tax imposed by the United States Federal government based upon or measured by net income and any Tax on, based on, with respect to, or measured by the net income or homestate gross income, capital, or net receipts of any Indemnitee, or which is in the nature of a franchise or conduct of business tax imposed on any Indemnitee Indemnitee, for the privilege of doing business, or which is in the nature of a minimum tax on tax preferences imposed on any Indemnitee in each case by any state of the United States or by the United States Virgin Islands (other than any state in which Lessee or any Affiliate thereof owns or operates equipment used in connection with the operation of the Satellites or the Transponders other than, in the case of the Transponders, use by Lessee or any Affiliate thereof for internal purposes, unless such state is also the principal place of business of such Indemnitee, it being agreed that for purposes of this parenthetical clause the United States Virgin Islands shall be treated as a state) (in each case set forth in this subparagraph (b) other than a tax in the nature of a sales, use, value added, property, excise property or rental tax); provided, however, that the provisions of subparagraphs (a) and (b) -------- ------- shall not apply to any Taxes imposed upon any indemnity payment made pursuant to Section 7.01 hereof, Article VI hereof or the Tax Indemnification Agreement; (c) in the case of Owner Participant, Owner Trustee or Lessor's Estate, for so long as no Event of Default shall have occurred and be continuing, any Tax that is imposed with respect to any Transponder with respect to any period beginning after the earlier of (i) the expiration of the Lease Term or other termination of the Lease for such Transponder for any reason or, if later and if applicablelater, the return of the Transponders after such termination or expiration, or (ii) the discharge by payment in full of Lessee's Lessees' obligations to pay the Stipulated Loss Value Value, the EBO Amount or the Termination Termina tion Value and all other amounts due under the Leasein connection therewith with respect to such Transponder; provided, however, that this exception -------- ------- exception shall not apply to Taxes relating to events occurring, or Taxes relating to matters arising, prior to or contemporaneously with such time; (d) in the case of a Noteholder, for so long as no Event of Default shall have occurred and be continuing, any Tax imposed with respect to (i) any period which begins after the payment of all amounts owing to such Noteholder under the Indenture and (ii) the portion of any period which begins before such payment to the extent it occurs after such payment; provided, however, that this exception shall not apply to -------- ------- Taxes relating to -------- ------- events occurring, or Taxes relating to matters arising, prior to or contemporaneously with such payment; ; (e) any Tax which is being contested in accordance with the provisions of Section 7.04, during the pendency of such contest; provided, ------------ -------- however, -------- ------- that Owner Trustee, as Lessor under the Lease with respect to each ------- Transponder, shall be receiving all amounts of Rent when payable, and that each Noteholder shall be receiving all payments of principal and interest on the Notes and all other amounts payable under the Notes and the Indenture when payable, in either case without reduction by reason of such Tax or any other Tax; ; (f) any Tax (i) that is imposed on any Indemnitee or any Affiliate, or any successor, assign, officer, director, servant, employee or agent thereof, thereof as a result of the willful misconduct or gross negligence, or a failure properly to file returns or statements, whether related or unrelated to the transactions contemplated by the Operative Documents or the Xxxxxx Agreements (unless such failure results from a Lessee's failure to provide timely notice of the requirement of such filing or the failure of by a Lessee to provide information reasonably required in connection with such filing or Lessee's failure to comply with its obligations under Section 7.05filing), of such any Indemnitee or such any Affiliate thereof, or such any successor, assign, officer, director, servant, employee or agent thereof (other than an act or failure to act required or contemplated under any of the Operative Documents or Xxxxxx Agreements), ; (ii) that is imposed on any Indemnitee to the extent that such Tax results from the breach of any representation, warranty or covenant in the Operative Documents or Xxxxxx Agreements by such Indemnitee, ; (iii) that is imposed on any Indemnitee as a result of a claim unrelated to the transaction contemplated herein, ; (iv) that is imposed on Owner Participant, Owner Trustee or Lessor's Estate because of or in connection with any Owner Participant Lien or Lessor Lien, respectively, ; (v) that is imposed on Indenture Trustee because of or in connection with any Indenture Trustee's Lien Lien; or (vi) that is imposed on any Noteholder because of or in connection with any Noteholder's Lien of such Noteholder; (g) any Tax in connection with or as a direct result of a voluntary sale, transfer, assignment or other voluntary disposition by Owner Participant or Owner Trustee, or an involuntary transfer resulting from the bankruptcy of Owner Participant, of a Transponder or any part thereof or any interest therein or Lessor's Estate (other than any sale, transfer, assignment or other disposition of such Transponder, or any part thereof or interest therein or Lessor's Estate, under Section 8, 12, 16, 19 or 20 of the Lease); (h) any Tax imposed on a transferee of an Indemnitee to the extent of the excess of such Tax over the amount of such Tax which would have been imposed and otherwise indemnified against under this Article VII by Lessees ----------- had there not been a voluntary sale, transfer, assignment or other voluntary disposition by Owner Participant, including, without limitation, the revocation of the trust created by the Trust Agreement, or an involuntary transfer resulting from the bankruptcy of Owner Participant, of a Transponder or any interest therein or part thereof or Lessor's Estate; provided, however, that this exception shall not apply if any such -------- ------- sale, transfer, assignment or other disposition shall occur as the result of any actions re quired pursuant to Section 8, 12, 16, 19 or 20 of the Lease; (i) any penalties, fines, additions to Tax and interest (I) resulting from matters contemplated by the Operative Documents or the Xxxxxx Agreements in the case where an Indemnitee has notified Lessees that it intends to file a return in accordance with Section 7.05 and files a return ------------ in a manner materially inconsistent with such notice and as a result of such filing Lessees' ability to contest is materially impaired (such impairment to include, for purposes of this Section 7.02(i), the fact, if applicable, that Lessees elected to waive their contest rights in respect of such filing on the basis of the information provided by Indemnitee to Lessees in such notice), or (II) to the extent not attributable to a Tax indemnified against hereunder; (j) any Tax for which Lessees pay or reimburse Owner Trustee or any Noteholder pursuant to the Indenture but only to the extent that Owner Trustee or such Noteholder has been made whole on an After-Tax Basis; and (k) any Tax to the extent such Tax (i) would have been imposed on an Indemnitee had it not engaged in activities related to the transaction contemplated herein, or (ii) is imposed by any United States jurisdiction that would not have imposed such Tax on the Indemnitee but for activities conducted by such Indemnitee (or Affiliates controlled by Owner Participant) in such jurisdiction unrelated to the transactions contemplated herein; provided, however, that if and to the extent any Tax referred to in any of the -------- ------- foregoing clauses would otherwise be indemnified against pursuant to the terms of both the Tax Indemnification Agreement and this Article VII, the terms of the ----------- Tax Indemnification Agreement shall control and no payments shall be made under this Article VII. Notwithstanding anything to the contrary contained in this ----------- Section 7.02, the exceptions set forth in this Section 7.02 shall not apply, ------------ ------------ with respect to the Owner Trustee, the Owner Participant or the Lessor's Estate, to any Taxes imposed by way of withholding on payments of principal, interest or premium on the Notes or imposed by reason of any failure to withhold with respect to such payments.

Exceptions from Indemnity. The provisions of Section ------------------------- 7.01 hereof shall not apply to: (i) any withholding Tax functioning as a final tax in respect of any Noteholder that has not provided a current Internal Revenue Form 1001 or Form 4224, to the extent applicable, and in any case a Form W-8 or W-9, to the extent applicable and (ii) any Tax on, based on, with respect to, or measured by net or gross income, capital or receipts of any Noteholder or which is in the nature of a franchise or conduct of business tax imposed on such Noteholder or which is in the nature of a minimum tax on tax preferences imposed on a Noteholder (in each case, other than a tax in the nature of a sales, use or rental tax); provided, however, that this clause -------- ------- (ii) of subparagraph (a) shall not apply to any Taxes imposed by any state or local tax jurisdiction to the extent such Taxes arise in the applicable jurisdiction (other than with respect to net or gross income taxes, franchise taxes, conduct of business taxes or minimum taxes on tax preferences in the Noteholder's state or jurisdiction of incorporation or domicile or, with respect to a foreign Noteholder, the state in which the office used by such Noteholder to make or maintain the Loans is located) solely as a result of the Noteholder having executed, delivered or performed its obligations under the Operative Documents or having received a payment under the Operative Documents; provided, further, that with -------- ------- respect to a foreign Noteholder that is otherwise not a United States taxpayer, this clause (ii) of subparagraph (a) shall not apply to any Taxes to the extent such Taxes are United States federal Taxes and are imposed solely as a result of the Noteholder having executed, delivered or performed its obligations under the Operative Documents or having received a payment under the Operative Documents; and provided, still further, that -------- ----- ------- Lessee shall not be -------- ------- obligated to pay any tax in the nature of a sales, use or rental tax in the nature of or imposed in lieu of a net income tax imposed on any Noteholder Noteholder, that results from or is attributable to the fact that such Noteholder is a commercial bank or other financial institution organized under the laws of a jurisdiction other than the United States of America, or a state or territory thereof); (b) any Tax imposed by the United States Federal government based upon or measured by net income and any Tax on, based on, with respect to, or measured by the net income or gross income, capital, or net receipts of any IndemniteeIndemnitee (other than a Noteholder or the Agent), or which is in the nature of a franchise or conduct of business tax imposed on any Indemnitee (other than a Noteholder or the Agent) for the privilege of doing business, or which is in the nature of a minimum tax on tax preferences imposed on any Indemnitee (other than a Noteholder or the Agent) in each case by any state of the United States or by the United States Virgin Islands (other than any state in which Lessee or any Affiliate thereof owns or operates equipment used in connection with the operation of the Satellites Satellite or the Transponders other than, in the case of the Transponders, use by Lessee or any Affiliate thereof for internal purposes, unless such state is also the principal place of business of such Indemnitee, it being agreed that for purposes of this parenthetical clause the United States Virgin Islands shall be treated as a state) (in each case set forth in this subparagraph (b) other than a tax in the nature of a sales, use, value added, property, excise or rental tax); provided, however, that the provisions of -------- ------- subparagraphs (a) and (b) -------- ------- shall not apply to any Taxes imposed upon any indemnity payment made pursuant to Section 7.01 hereof, Article VI hereof or the Tax Indemnification Agreement, if any; (c) in the case of Owner Participant, Owner Trustee or Lessor's Estate, for so long as no Event of Default shall have occurred and be continuing, any Tax that is imposed with respect to any Transponder with respect to any period beginning after the earlier of (i) the expiration of the Lease Term or other termination of the Lease for such Transponder for any reason or, if later and if applicable, the return of the Transponders after such termination or expiration, or (ii) the discharge of Lessee's obligations to pay the Stipulated Loss Value or the Termination Value and all other amounts due under the Lease; provided, however, that this -------- ------- exception shall not apply to Taxes relating to events occurring, or Taxes relating to matters arising, prior to or contemporaneously with such time; (d) in the case of a Noteholder, for so long as no Event of Default shall have occurred and be continuing, any Tax imposed with respect to (i) any period which begins after the payment of all amounts owing to such Noteholder under the Indenture Loan Agreement and (ii) the portion of any period which begins before such payment to the extent it occurs after such payment; provided, however, that this exception shall not apply to Taxes -------- ------- Taxes relating to events occurring, or Taxes relating to matters arising, prior to or contemporaneously with such payment; ; (e) any Tax which is being contested in accordance with the provisions of Section 7.04, during the pendency of such contest; provided, however, -------- ------- that Owner Trustee, as Lessor under the Lease with respect to each Transponder, shall be receiving all amounts of Rent when payable, and that each Noteholder shall be receiving all payments of principal and interest on the Notes and all other amounts payable under the Notes and the Indenture Loan Agreement when payable, in either case without reduction by reason of such Tax or any other Tax; ; (f) any Tax (i) that is imposed on any Indemnitee or any Affiliate, or any successor, assign, officer, director, servant, employee or agent thereof, as a result of the willful misconduct or gross negligence, or a failure properly to file returns or statements, whether related or unrelated to the transactions contemplated by the Operative Documents or the Xxxxxx Agreements (unless such failure results from Lessee's failure to provide timely notice of the requirement of such filing or the failure of Lessee to provide information reasonably required in connection with such filing or Lessee's failure to comply with its obligations under Section 7.05), of such Indemnitee or such Affiliate thereof, or such successor, assign, officer, director, servant, employee or agent thereof (other than an act or failure to act required or contemplated under any of the Operative Documents or Xxxxxx Agreements), (ii) that is imposed on any Indemnitee to the extent that such Tax results from the breach of any representation, warranty or covenant in the Operative Documents or Xxxxxx Agreements by such Indemnitee, (iii) that is imposed on any Indemnitee as a result of a claim unrelated to the transaction contemplated herein, (iv) that is imposed on Owner Participant, Owner Trustee or Lessor's Estate because of or in connection with any Owner Participant Lien or Lessor Lien, respectively, (v) that is imposed on Indenture Trustee Agent because of or in connection with any Indenture Trustee's Agent Lien (disregarding for such purpose the parenthetical language in clause (b) of the definition of Agent Lien) or (vi) that is imposed on any Noteholder because of or in connection with any Noteholder's Noteholder Lien of such NoteholderNoteholder (disregarding for such purpose the parenthetical language in clause (b) of the definition of Noteholder Lien); (g) any Tax imposed with respect to a voluntary sale, transfer, assignment or other voluntary disposition by Owner Participant or Owner Trustee, or an involuntary disposition by Lessor or Owner Participant resulting from a default under the Operative Documents or the Xxxxxx Agreements (other than such a default that results from an Event of Default) by Owner Participant or Lessor, of any Transponder or any part thereof or any interest therein or Lessor's Estate; provided, however that -------- ------- this exception shall not apply (i) to the transfer of the Transponders by Initial Owner Participant to Owner Trustee pursuant to the GMAC Xxxx of Sale or (ii) in the event that such sale, transfer, assignment or other disposition shall occur as the result of any acts pursuant to Section 7, 8, 12, 16 or 19 of the Lease or at any time while an Event of Default, Payment Default or Bankruptcy Default shall have occurred and be continuing; (h) any Tax to the extent such Tax (i) would have been imposed on an Indemnitee had it not engaged in activities related to the transaction contemplated herein or (ii) is imposed by any jurisdiction that would not have imposed such Tax on the Indemnitee but for activities conducted by such indemnitee in such jurisdiction which activities are unrelated to the transactions contemplated herein (it being understood, however, for purposes of clause (ii) of this subparagraph (h), that, to the extent such tax is caused both by such activities of Indemnitee and by activities of a Lessee Person, such tax will be equitably apportioned between such Indemnitee and Lessee) or (iii) is a Tax referred to in Section 2.14 of the Loan Agreement; (i) any penalties, fines, additions to Tax and interest to the extent not attributable to a Tax indemnified against hereunder; (j) any estate, inheritance or succession Tax imposed on any Indemnitee; and (k) any Tax on, with respect to or measured by any trustee or agent fees received by Lessor, Owner Trustee or Agent for services rendered under the Trust Agreement or the Loan Agreement; provided, however, that (i) if and to the extent any Tax referred to in any of -------- ------- the foregoing clauses would otherwise be indemnified against pursuant to the terms of both the Tax Indemnification Agreement, if any, and this Article VII, the terms of the Tax Indemnification Agreement, if any, shall control and no payments shall be made under this Article VII, and (ii) the exclusions set forth in subparagraphs (a) through (k) shall in no way apply to any Taxes imposed upon the trust under the Trust Agreement or the Owner Trustee, as the case may be, to the extent the trust under the Trust Agreement or the Owner Trustee, as the case may be, as a result of the imposition of such Taxes, would not have sufficient funds to make full payment on the Notes as and when due and payable. Notwithstanding anything to the contrary herein or in any other Operative Document, Lessee acknowledges and agrees to indemnify and hold harmless Owner Participant and Owner Trustee against any and all withholding Taxes (inclusive of any interest and penalties imposed for any failure to timely withhold such Taxes) imposed on or with respect to any amounts paid to any Loan Participant or any Noteholder or any successor, assign or Affiliate thereof as to which Owner Trustee must indemnify pursuant to Section 2.17 of the Loan Agreement, as an indemnified Tax for purposes of this Section 7. Notwithstanding anything to the contrary contained in this Section 7.02, the exceptions set forth in this Section 7.02 shall not apply, with respect to Owner Trustee, Owner Participant or the Lessor's Estate, to any Taxes imposed by way of withholding on payments of principal, interest or Break Funding Costs on the Notes or imposed by reason of any failure to withhold with respect to such payments.

Exceptions from Indemnity. The provisions of Section ------------------------- 7.01 hereof shall not apply to: (i) any withholding Tax functioning as a final tax in respect of any Noteholder Noteholder; and (ii) any Tax on, based on, with respect to, or measured by net or gross income, capital or receipts of any Noteholder or which is in the nature of a franchise or conduct of business tax imposed on such Noteholder or which is in the nature of a minimum tax on tax preferences imposed on a Noteholder (in each case, other than a tax in the nature of a sales, use or rental tax; provided, however, that Lessee Lessees shall not be -------- ------- obligated to pay any tax in the nature of a sales, use or rental tax imposed on any Noteholder that results from or is attributable to the fact that such Noteholder is a commercial bank or other financial institution organized under the laws of a jurisdiction other than the United States of America, or a state State or territory thereof); (b) any Tax imposed by the United States Federal government based upon or measured by net income and any Tax on, based on, with respect to, or measured by the net income or gross income, capital, capital or net receipts of any Indemnitee, or which is in the nature of a franchise or conduct of business tax imposed on any Indemnitee Indemnitee, for the privilege of doing business, or which is in the nature of a minimum tax on tax preferences imposed on any Indemnitee in each case by any state of the United States or by the United States Virgin Islands (other than any state in which Lessee or any Affiliate thereof owns or operates equipment used in connection with the operation of the Satellites or the Transponders other than, in the case of the Transponders, use by Lessee or any Affiliate thereof for internal purposes, unless such state is also the principal place of business of such Indemnitee, it being agreed that for purposes of this parenthetical clause the United States Virgin Islands shall be treated as a state) (in each case set forth in this subparagraph (b) other than (i) a tax in the nature of a sales, use, value added, property, excise property or rental tax); provided, howeveror (ii) an income tax that is imposed, by any taxing jurisdiction other than the United States federal government or the state jurisdiction in which Owner Participant is incorporated, as a result of a relation or an asserted relation between the taxing jurisdiction and the Satellite, the Transponders, any earth-bound or other equipment employed in connection with any Transponder (but, in the case of any such income tax, (x) only to the extent that such tax is attributable to income derived from the provisions of subparagraphs (a) transactions contemplated under the Operative Documents and the Xxxxxx Agreements, and (by) -------- ------- shall not apply to any Taxes only if such Tax would have been imposed upon any indemnity payment made pursuant to Section 7.01 hereof, Article VI hereof or if such transactions were the Tax Indemnification Agreementonly nexus between Owner Participant and that taxing jurisdiction)); (c) in the case of Owner Participant, Owner Trustee or Lessor's Estate, for so long as no Event of Default shall have occurred and be continuing, any Tax that is imposed with respect to any Transponder with respect to any period beginning after the earlier of (i) the expiration of the Lease Term or other termination of the Lease for such Transponder for any reason or, if later and if applicablelater, the return of the Transponders after such termination or expirationexpiration in accordance with the Lease, or (ii) the discharge in full of Lessee's Lessees' obligations to pay the Stipulated Loss Value Value, the EBO Amount or the Termination Value and all other amounts due under the Leasein connection therewith; provided, however, that this -------- ------- exception shall not -------- ------- apply to Taxes relating to events occurring, or Taxes relating to matters arising, prior to or contemporaneously with such time; (d) in the case of a Noteholder, for so long lonq as no Event of Default shall have occurred and be continuing, any Tax imposed with respect to (i) any period which begins after the payment of all amounts owing to such Noteholder under the Indenture and (ii) the portion of any period which begins before such payment to the extent it occurs after such payment; provided, however, that this exception shall not apply to -------- ------- Taxes relating to -------- ------- events occurring, or Taxes relating to matters arising, prior to or contemporaneously with such payment; (e) any Tax which is being contested in accordance with the provisions of Section 7.04, during the pendency of such contest; provided, however, ------------ -------- ------- that Owner Trustee, as Lessor under the Lease with respect to each Transponder, shall sha1l be receiving all amounts of Rent when payable, and that each Noteholder shall be receiving all payments of principal and interest on the Notes and all other amounts payable under the Notes and the Indenture when payable, in either case without reduction by reason of such Tax or any other Tax; (f) any Tax (i) that is imposed on any Indemnitee or any Affiliate, or any successor, assign, officer, director, servant, employee or agent thereof, as a result of the willful misconduct or gross negligence, or a failure properly to file returns or statements, whether related or unrelated to the transactions contemplated by the Operative Documents or the Xxxxxx Agreements (unless such failure results from Lessee's failure to provide timely notice of the requirement of such filing or the failure of Lessee to provide information reasonably required in connection with such filing or Lessee's failure to comply with its obligations under Section 7.05), of such Indemnitee or such Affiliate thereof, or such successor, assign, officer, director, servant, employee or agent thereof (other than an act or failure to act required or contemplated under any of the Operative Documents or Xxxxxx Agreements), (ii) that is imposed on any Indemnitee to the extent that such Tax results from the breach of any representation, warranty or covenant in the Operative Documents or Xxxxxx Agreements by such Indemnitee, (iii) that is imposed on any Indemnitee as a result of a claim unrelated to the transaction contemplated herein, (iv) that is imposed on Owner Participant, Owner Trustee or Lessor's Estate because of or in connection with any Owner Participant Lien or Lessor Lien, respectively, (v) that is imposed on Indenture Trustee because of or in connection with any Indenture Trustee's Lien or (vi) that is imposed on any Noteholder because of or in connection with any Noteholder's Lien of such Noteholder;