Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i) shall not apply to: (1) Taxes on, based on, measured by or with respect to the gross or net income, gross or net receipts, minimum or alternative taxes, tax preferences, capital, net worth, franchise or conduct of business (but not excluding sales, use, license, rental, ad valorem, value added tax (to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) imposed by the United States or by any state or local government or taxing authority or (b) imposed by any foreign government or taxing authority except where such Tax is imposed by reason of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee in such jurisdiction and exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee; (2) Taxes that would not have been imposed but for a Lessor's Lien; (3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraft, the Trust Estate, or the Operative Documents, or any interest therein, or a transfer relating to bankruptcy or similar proceedings involving the Owner Participant; (4) Taxes resulting from the willful misconduct or negligence of the Indemnitees; (5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value; (6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee; (7) Taxes which have been included in the Lessor's Cost; (8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents; (9) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv); (10) Taxes imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it; (11) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity Agreement; (12) Interest, penalties and additions to Tax to the extent imposed as a result of the failure of the Owner Participant to timely and properly file any return, unless such failure is caused by Lessee's failure to timely provide information required to be provided under the Operative Documents; (13) Taxes that would not have been imposed but for an Indemnitee's breach of any covenant or the inaccuracy of any representation or warranty of such Indemnitee in any of the Operative Documents; (14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes; (15) U.S. withholding taxes imposed on payments to a foreign person; and (16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliates.
Appears in 3 contracts
Samples: Participation Agreement (Us Airways Inc), Leased Aircraft Participation Agreement (Us Airways Inc), Participation Agreement (Us Airways Inc)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i------------------------------------- 13.2
(a) shall not apply to, and the Charterer shall have no liability to a Tax Indemnitee under Section 13.2(a) with respect to:
(1) Taxes (other than such Taxes that are sales, use, rental, property or ad valorem Taxes) imposed on, based onon or measured by, measured by or with respect to the gross or net -- ------- income, gross or net receipts, minimum or alternative taxes, tax preferences, capital, net worth, franchise excess profits or conduct of business (but not excluding sales, use, license, rental, ad valorem, value added tax (to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) which are imposed by the United States federal, or by any state or local government therein, or any foreign or international taxing authority authority, including any franchise or privilege Taxes, minimum Taxes, value added Taxes imposed in lieu of net income Taxes, withholding Taxes (b) imposed other than withholding Taxes resulting from either the Owner Trust or Owner Participant not being a United States person for United States federal income tax purposes), and any Taxes on or measured by any foreign government or taxing authority except where such Tax is imposed by reason items of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee in such jurisdiction and exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lesseetax preference;
(2) Taxes, including, without limitation, sales and transfer Taxes, that result from any voluntary or involuntary transfer by such Tax Indemnitee of any interest in the Owner Participant, the Vessel Interest, the Trust Estate or any portion of any of the foregoing, or any interest arising out of the Operative Documents or Pass Through Trust Agreement or the Secured Note or Pass Through Certificate; provided, however, that this -------- ------- Section 13.2(b)(2) shall not apply to any transfer that (A) relates to the exercise of remedies in connection with a Charter Event of Default; (B) results from a Event of Default or from an Event of Loss; or (C) results from the replacement, removal or substitution of all or any part of the Vessel Interest;
(3) Taxes imposed by any jurisdiction that would not have been imposed on a Tax Indemnitee but for a Lessor's Lien;
(3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraft, the Trust Estate, or the Operative Documents, or any interest therein, or a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for its activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents or Pass Through Trust Agreement;
(4) Taxes that result from (A) the willful misconduct or gross negligence of such Tax Indemnitee, (B) the breach or inaccuracy by such Tax Indemnitee of any of its representations, covenants and obligations under the Operative Documents, (C) the failure of a Tax Indemnitee to file tax returns properly and on a timely basis or to claim a deduction or credit to which it is entitled (provided that such Tax Indemnitee shall not be obligated to claim a deduction or credit if it requests but fails to receive an opinion of Xxxxx Xxxxxxxxxx or other independent counsel selected by such Tax Indemnitee and reasonably acceptable to the Charterer that it is entitled to claim such deduction or credit), or (D) the failure of a Tax Indemnitee to comply with certification, reporting or other similar requirements of the jurisdiction imposing such Tax; provided, -------- however, that the exclusions set forth in subclauses (C) and (D) shall not ------- apply if any such failure is the result of the failure of the Charterer to (I) perform its obligations under Section 13.2(c), or to perform its duties and responsibilities pursuant to any of the Operative Documents, (II) timely and properly notify such Tax Indemnitee of the applicable filing, certification, reporting or other similar requirements, or (III) provide reasonable assistance in complying with any such requirement;
(5) Taxes which are attributable to any period or circumstance occurring after the expiration or earlier termination of the Charter, except to the extent attributable to (A) a failure of the Charterer to fully discharge its obligations under the Charter, (B) Taxes imposed on or with respect to any payments that are due after the expiration or earlier termination of the Charter and which are attributable to a period or circumstance occurring 57 prior to such expiration or earlier termination or (C) Taxes that relate to events, matters or circumstances occurring prior to such expiration or earlier termination;
(6) Taxes which are based on or measured by fees or compensation received by the Owner Trustee for acting as Owner Trustee under the Trust Agreement, the Indenture Trustee for acting as Indenture Trustee under the Indenture or Pass Through Trustee for acting as Pass Through Trustee under the Pass Through Trust Agreement;
(7) other than with respect to Owner Participants and the Shareholders therein, Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States person for United States federal income tax purposes;
(8) any Tax that is being contested in accordance with the provisions of Section 13.2(e) during the pendency of such contest, but only for so long as such contest is continuing in accordance with such Section and payment is not otherwise required pursuant to such Section;
(9) Taxes being contested pursuant as to which any Tax Indemnitee fails to comply with its contest obligations under Section 13.2(e) in any material respect, but only to the extent such failure materially impairs the Charterer's contest provisions contained in rights with respect to the Taxes that are the subject of the contest and is not due to any act or failure to act by the Charterer; provided, however, -------- ------- that this Section 6(b)(iv)13.2(b)(9) shall not constitute a waiver by the Charterer of its rights, if any, to assert and xxx upon any claims it may have against the Tax Indemnitee by reason of its failure to comply with its obligations under Section 13.2(e) of this Agreement;
(10) Taxes imposed on as a result of the Owner Trustee trust described in the Trust Agreement or the Owner Participant based onPass Through Trust not being treated as a grantor trust or other conduit entity for federal, measured by state or imposed with respect to any fees, commissions or compensation received by itlocal tax purposes;
(11) any Taxes with respect to a transferee or subsequent transferee to the extent of the excess of such Taxes over the amount of the Taxes that would have been imposed had there not been a transfer by the initial Tax Indemnitee after the Closing Date of (i) an interest in the Owner Participant, the Vessel Interest, or of a beneficial interest in the Trust Estate or any portion of any of the foregoing, or (ii) any interest arising under any Operative Document or Pass Through Trust Agreement or any Secured Note or Pass Through Certificate;
(12) Taxes which have been included in Owner's Cost;
(13) any Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 or ERISA or any comparable laws of any governmental authority, engaged in by any Tax Indemnitee other than, in the case of the Owner Participant, the making and holding of its investment in the Interest or the taking of any action at the request or direction of the Charterer;
(14) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity AgreementTrust resulting from a Lessor's Lien;
(1215) Interest, penalties and additions Taxes resulting from an amendment to an Operative Document which is not consented to by the Charterer in writing; or
(16) any Tax in the nature of an intangible tax or similar tax upon or with respect to the extent value of the interest of the Indenture Estate or a Certificateholder, as the case may be, in any of the Secured Note or Certificate imposed by any government or taxing authority. Notwithstanding anything contained herein or any other Operative Document to the contrary, the Charterer acknowledges and agrees to indemnify and hold harmless the Owner Participant and Owner Trust 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 Loan Participant as an indemnified Tax for purposes of this Section 13.2, unless such withholding is due to (i) the Owner Trust not being a United States person for United States federal income tax purposes, (ii) a failure of the Owner Participant or the Owner Trustee to comply with any provision of the Operative Documents (including Section 13.2(b)(4)) except if such failure is the result of the failure of the Owner Participant Charterer to timely and properly file any return, unless such failure is caused by Lessee's failure to timely provide information required to be provided perform its obligations under Section 13.2(c) or (iii) the Operative Documents;
(13) Taxes that would not have been imposed but for an Indemnitee's breach of any covenant or the inaccuracy of any representation representations, covenants or warranty of such Indemnitee in any of the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed obligations by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliates.or Owner Trust under the
Appears in 2 contracts
Samples: Participation Agreement (Mobil Corp), Participation Agreement (Mobil Corp)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i------------------------------------- 13.2
(a) shall not apply to, and the Charterer shall have no liability to a Tax Indemnitee under Section 13.2(a) with respect to:
(1) Taxes (other than such Taxes that are sales, use, rental, property or ad valorem Taxes) imposed on, based onon or measured by, measured by or with respect to the gross or net -- ------- income, gross or net receipts, minimum or alternative taxes, tax preferences, capital, net worth, franchise excess profits or conduct of business (but not excluding sales, use, license, rental, ad valorem, value added tax (to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) which are imposed by the United States federal, or by any state or local government therein, or any foreign or international taxing authority authority, including any franchise or privilege Taxes, minimum Taxes, value added Taxes imposed in lieu of net income Taxes, withholding Taxes (b) imposed other than withholding Taxes resulting from either the Owner Trust or Owner Participant not being a United States person for United States federal income tax purposes), and any Taxes on or measured by any foreign government or taxing authority except where such Tax is imposed by reason items of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee in such jurisdiction and exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lesseetax preference;
(2) Taxes, including, without limitation, sales and transfer Taxes, that result from any voluntary or involuntary transfer by such Tax Indemnitee of any interest in the Owner Participant, the Vessel Interest, the Trust Estate or any portion of any of the foregoing, or any interest arising out of the Operative Documents or Pass Through Trust Agreement or the Secured Note or Pass Through Certificate; provided, however, that this -------- ------- Section 13.2(b)(2) shall not apply to any transfer that (A) relates to the exercise of remedies in connection with a Charter Event of Default; (B) results from a Event of Default or from an Event of Loss; or (C) results from the replacement, removal or substitution of all or any part of the Vessel Interest;
(3) Taxes imposed by any jurisdiction that would not have been imposed on a Tax Indemnitee but for a Lessor's Lien;
(3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraft, the Trust Estate, or the Operative Documents, or any interest therein, or a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for its activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents or Pass Through Trust Agreement;
(4) Taxes that result from (A) the willful misconduct or gross negligence of such Tax Indemnitee, (B) the breach or inaccuracy by such Tax Indemnitee of any of its representations, covenants and obligations under the Operative Documents, (C) the failure of a Tax Indemnitee to file tax returns properly and on a timely basis or to claim a deduction or credit to which it is entitled (provided that such Tax Indemnitee shall not be obligated to claim a deduction or credit if it requests but fails to receive an opinion of Xxxxx Xxxxxxxxxx or other independent counsel selected by such Tax Indemnitee and reasonably acceptable to the Charterer that it is entitled to claim such deduction or credit), or (D) the failure of a Tax Indemnitee to comply with certification, reporting or other similar requirements of the jurisdiction imposing such Tax; provided, -------- however, that the exclusions set forth in subclauses (C) and (D) shall not ------- apply if any such failure is the result of the failure of the Charterer to (I) perform its obligations under Section 13.2(c), or to perform its duties and responsibilities pursuant to any of the Operative Documents, (II) timely and properly notify such Tax Indemnitee of the applicable filing, certification, reporting or other similar requirements, or (III) provide reasonable assistance in complying with any such requirement;
(5) Taxes which are attributable to any period or circumstance occurring after the expiration or earlier termination of the Charter, except to the extent attributable to (A) a failure of the Charterer to fully discharge its obligations under the Charter, (B) Taxes imposed on or with respect to any payments that are due after the expiration or earlier termination of the Charter and which are attributable to a period or circumstance occurring prior to such expiration or earlier termination or (C) Taxes that relate to events, matters or circumstances occurring prior to such expiration or earlier termination;
(6) Taxes which are based on or measured by fees or compensation received by the Owner Trustee for acting as Owner Trustee under the Trust Agreement, the Indenture Trustee for acting as Indenture Trustee under the Indenture or Pass Through Trustee for acting as Pass Through Trustee under the Pass Through Trust Agreement;
(7) other than with respect to Owner Participants and the Shareholders therein, Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States person for United States federal income tax purposes;
(8) any Tax that is being contested in accordance with the provisions of Section 13.2(e) during the pendency of such contest, but only for so long as such contest is continuing in accordance with such Section and payment is not otherwise required pursuant to such Section;
(9) Taxes being contested pursuant as to which any Tax Indemnitee fails to comply with its contest obligations under Section 13.2(e) in any material respect, but only to the extent such failure materially impairs the Charterer's contest provisions contained in rights with respect to the Taxes that are the subject of the contest and is not due to any act or failure to act by the Charterer; provided, however, -------- ------- that this Section 6(b)(iv)13.2(b)(9) shall not constitute a waiver by the Charterer of its rights, if any, to assert and xxx upon any claims it may have against the Tax Indemnitee by reason of its failure to comply with its obligations under Section 13.2(e) of this Agreement;
(10) Taxes imposed on as a result of the Owner Trustee trust described in the Trust Agreement or the Owner Participant based onPass Through Trust not being treated as a grantor trust or other conduit entity for federal, measured by state or imposed with respect to any fees, commissions or compensation received by itlocal tax purposes;
(11) any Taxes with respect to a transferee or subsequent transferee to the extent of the excess of such Taxes over the amount of the Taxes that would have been imposed had there not been a transfer by the initial Tax Indemnitee after the Closing Date of (i) an interest in the Owner Participant, the Vessel Interest, or of a beneficial interest in the Trust Estate or any portion of any of the foregoing, or (ii) any interest arising under any Operative Document or Pass Through Trust Agreement or any Secured Note or Pass Through Certificate;
(12) Taxes which have been included in Owner's Cost;
(13) any Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 or ERISA or any comparable laws of any governmental authority, engaged in by any Tax Indemnitee other than, in the case of the Owner Participant, the making and holding of its investment in the Interest or the taking of any action at the request or direction of the Charterer;
(14) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity AgreementTrust resulting from a Lessor's Lien;
(1215) Interest, penalties and additions Taxes resulting from an amendment to an Operative Document which is not consented to by the Charterer in writing; or
(16) any Tax in the nature of an intangible tax or similar tax upon or with respect to the extent value of the interest of the Indenture Estate or a Certificateholder, as the case may be, in any of the Secured Note or Certificate imposed by any government or taxing authority. Notwithstanding anything contained herein or any other Operative Document to the contrary, the Charterer acknowledges and agrees to indemnify and hold harmless the Owner Participant and Owner Trust 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 Loan Participant as an indemnified Tax for purposes of this Section 13.2, unless such withholding is due to (i) the Owner Trust not being a United States person for United States federal income tax purposes, (ii) a failure of the Owner Participant or the Owner Trustee to comply with any provision of the Operative Documents (including Section 13.2(b)(4)) except if such failure is the result of the failure of the Charterer to perform its obligations under Section 13.2(c) or (iii) the breach or inaccuracy of any representations, covenants or obligations by the Owner Participant to timely and properly file any return, unless such failure is caused by Lessee's failure to timely provide information required to be provided or Owner Trust under the Operative Documents;
. If a Tax (13including any related interest, fines, penalties or addition to Tax) Taxes that would not have been imposed but for an Indemnitee's breach results from a failure of any covenant Tax Indemnitee to comply with its obligations under the Operative Documents or the inaccuracy Pass Through Trust Agreement and the Charterer is required to indemnify another Tax Indemnitee against the imposition of such Tax, then the Tax Indemnitee whose failure resulted in the imposition of such Tax shall, within 30 days after receipt of notice of payment of the Tax and appropriate payment documentation with respect thereto, pay to the Charterer an amount which equals the amount paid by the Charterer with respect to or as a result of such Tax (including any expenses or other charges borne by the Charterer) increased by (but subject to the proviso in Section 13.2(f)) the amount of tax savings to such Tax Indemnitee attributable to the making of such payment to the Charterer. The provisions of this Section 13.2(b) shall not apply to any Taxes imposed in respect of the receipt or accrual of any representation or warranty of such Indemnitee in any of indemnity payment made by the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments Charterer pursuant to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliatesthis Section 13.2 hereof.
Appears in 2 contracts
Samples: Participation Agreement (Mobil Corp), Participation Agreement (Mobil Corp)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i7(b)(i) shall not apply toapply:
(1) Taxes on, based on, measured by or with respect to any Tax Indemnitee to any Income Tax (as defined in Section 7(d) hereof) imposed by (A) the gross United States Federal government or net income(B) any U.S. state or local taxing jurisdiction;
(2) with respect to any Tax Indemnitee, gross to any Income Taxes imposed by any foreign or net receiptsinternational government, minimum jurisdiction or alternative taxes, tax preferences, capital, net worth, franchise taxing authority or conduct territory or possession of business (but not excluding sales, use, license, rental, ad valorem, value added tax (the United States except to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) imposed by Tax Indemnitee would be subject to such Income Tax if the United States or by any state or local government or taxing authority or (b) imposed by any foreign government or taxing authority except where sole connection between such Tax is imposed by reason of Indemnitee and the use, location, registration, subleasing, leasing or Taxing Authority had been the location and operation of the Aircraft or the presence or activities of Lessee or any sublessee within such Taxing Authority;
(3) to any capital gains taxes, excess profits taxes, value added taxes, accumulated earnings taxes, personal holding company taxes, succession taxes or estate or similar taxes;
(4) to any Tax imposed as a result of a transfer or disposition by a Tax Indemnitee including, without limitation, the revocation of the trust created by the Trust Agreement or a transfer or disposition of all or any portion of its respective equitable or legal ownership interest in the Aircraft, the Trust Estate, a Secured Certificate (including sales of participations therein), the Trust Indenture Estate (as defined in the Trust Indenture) or any Operative Document or any interest in such jurisdiction and exceeds Tax Indemnitee, unless such transfer or disposition shall occur (A) pursuant to the exercise of remedies pursuant to Section 15 of the Lease or (B) in connection with the termination of the Lease or the action or direction of Lessee pursuant to Sections 9, 10 or 19 thereof;
(5) to any Tax based on or measured by any fees received by the Owner Trustee, the Pass Through Trustee, the Indenture Trustee or any Agent in connection with any transaction contemplated by the Operative Documents;
(6) to any Tax imposed with respect to events occurring or matters arising after the earlier of (x) the expiration of the Term or the earlier termination of the Lease pursuant to Section 9 or 19 thereof, (y) the return of possession of the Aircraft to the Owner Trustee or its designee pursuant to the terms of the Lease or (z) the commencement of storage pursuant to Section 5(d) of the Lease provided that this exclusion shall not apply to Taxes to the extent such Taxes are imposed on or with respect to any events or matters occurring or arising prior to such expiration, termination, return of possession of the Aircraft or storage;
(7) to any Tax in the nature of an intangible or similar tax upon or with respect to the value or principal amount of the interest of any Tax Indemnitee in any of the Secured Certificates or in the Owner Trust;
(8) with respect to any Tax Indemnitee to any Tax imposed on or with respect to a transferee (or subsequent transferee) of an original Tax Indemnitee to the extent such Taxes would not have been required to be withheld or imposed on or with respect to such original Tax Indemnitee;
(9) to any Tax which would not have been imposed on (A) the Indemnitee regardless of Owner Trustee, the use, location, registration, subleasing, leasing or operation of the Aircraft Trust Estate or the presence Owner Participant but for, a Lessor Lien (including, for this purpose, Liens which would be a Lessor Lien but for the proviso in the definition of Lessor Liens) or activities of Lessee(B) the Indenture Trustee but for an Indenture Trustee's Lien, in each case with respect to the Tax Indemnitee to whom such Lien is attributable;
(210) Taxes that to any Tax to the extent such Tax would not have been imposed but for a Lessor's Lien;
present or future connection between the Tax Indemnitee or any Affiliate thereof and the jurisdiction imposing such Taxes (3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraftincluding, without limitation, the Trust EstateTax Indemnitee or an Affiliate thereof being or having been a citizen or resident thereof, or being or having been organized, present or engaged in a trade or business therein, or having or having had, a permanent establishment or fixed place of business therein, or engaging, or having engaged, in one or more transactions or activities therein unrelated to the transactions contemplated by the Operative Documents), or any interest therein, or other than a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence connection arising solely by reason of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(911) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes any Tax imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the a Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax Indemnitee to the extent imposed as a result of the failure of the Owner Participant to timely and properly file any return, unless such failure is caused by LesseeTax Indemnitee's failure to timely provide information comply with any certification, information, documentation, reporting or similar procedure that is required by law, treaty or regulation as a condition to be provided under the allowance of any reduction in the rate of such Tax or any exemption or other relief from such Tax;
(12) to any Tax on a Tax Indemnitee to the extent arising out of, or caused by, or to the extent such Tax would not have been incurred but for, (A) the willful misconduct or gross negligence of such Tax Indemnitee or any of its Affiliates or (B) the inaccuracy or breach of any representation, warranty, covenant or agreement by such Tax Indemnitee or any of its Affiliates in any Operative DocumentsDocument;
(13) Taxes that would not have been imposed but for an Indemnitee's breach to any Tax on a Tax Indemnitee to the extent consisting of interest, penalties, fines or additions to Tax resulting from the negligence or willful misconduct of such Tax Indemnitee or any of its Affiliates in connection with the filing of, or failure to file, any tax return, the payment of, or failure to pay any Tax, or the conduct of any covenant or proceeding in respect thereof unless resulting from the inaccuracy of any representation or warranty of such Indemnitee in any of the Operative Documents;failure by Lessee to perform its obligations under Section 7(b)(v) hereof; or
(14) Taxes in to any excise tax imposed on any Tax Indemnitee under Section 4975 of the nature Internal Revenue Code as a result of the use by such Tax Indemnitee or any of its Affiliates of the assets of an intangible "employee benefit plan" (as defined in Section 3(3) of ERISA) to purchase a Secured Certificate, make an equity investment or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's otherwise acquire any interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed by section 4975 of the Code Estate or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and AffiliatesSecured Certificate.
Appears in 2 contracts
Samples: Participation Agreement (Northwest Airlines Holdings Corp/Pred), Participation Agreement (Northwest Airlines Holdings Corp/Pred)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i) shall not apply to:
(1) Taxes on, based on, measured by or with respect to the gross or net income, gross or net receipts, minimum or alternative taxes, tax preferences, capital, net worth, franchise or conduct of business (but not excluding sales, use, license, rental, ad valorem, value added tax (to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) imposed by the United States or by any state or local government or taxing authority or (b) imposed by any foreign government or taxing authority except where such Tax is imposed by reason of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee in such jurisdiction and exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee;
(2) Taxes that would not have been imposed but for a Lessor's Lien;
(3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraft, the Trust Estate, or the Operative Documents, or any interest therein, or a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(9) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax to the extent imposed as a result of the failure of the Owner Participant to timely and properly file any return, unless such failure is caused by Lessee's failure to timely provide information required to be provided under the Operative Documents;
(13) Taxes that would not have been imposed but for an Indemnitee's breach of any covenant or the inaccuracy of any representation or warranty of such Indemnitee in any of the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust Estate or the Indenture Trust Estate or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliates.
Appears in 2 contracts
Samples: Participation Agreement (Us Airways Inc), Participation Agreement (Us Airways Inc)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i7(b)(i) shall not apply toapply:
(1) Taxes on, based on, measured by or with respect to any Tax Indemnitee to any Income Tax (as defined in Section 7(d) hereof) imposed by (A) the gross United States Federal government or net income(B) any U.S. state or local taxing jurisdiction;
(2) with respect to any Tax Indemnitee, gross to any Income Taxes imposed by any foreign or net receiptsinternational government, minimum jurisdiction or alternative taxes, tax preferences, capital, net worth, franchise taxing authority or conduct territory or possession of business (but not excluding sales, use, license, rental, ad valorem, value added tax (the United States except to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) imposed by Tax EXHIBIT K-1 Indemnitee would be subject to such Income Tax if the United States or by any state or local government or taxing authority or (b) imposed by any foreign government or taxing authority except where sole connection between such Tax is imposed by reason of Indemnitee and the use, location, registration, subleasing, leasing or Taxing Authority had been the location and operation of the Aircraft or the presence or activities of Lessee the Owner or any lessee within such Taxing Authority;
(3) to any capital gains taxes, excess profits taxes, value added taxes, accumulated earnings taxes, personal holding company taxes, succession taxes or estate or similar taxes;
(4) to any Tax imposed as a result of a transfer or disposition by a Tax Indemnitee including, without limitation, a transfer or disposition of all or any portion of its respective equitable or legal ownership interest in a Secured Certificate (including sales of participations therein), the Collateral (as defined in the Trust Indenture) or any Operative Document or any interest in such jurisdiction and exceeds Tax Indemnitee;
(5) to any Tax based on or measured by any fees received by the Pass Through Trustee, the Indenture Trustee or any Agent in connection with any transaction contemplated by the Operative Documents;
(6) [Intentionally Omitted]
(7) to any Tax that in the nature of an intangible or similar tax upon or with respect to the value or principal amount of the interest of any Tax Indemnitee in any of the Secured Certificates;
(8) with respect to any Tax Indemnitee to any Tax imposed on or with respect to a transferee (or subsequent transferee) of an original Tax Indemnitee to the extent such Taxes would not have been required to be withheld or imposed on or with respect to such original Tax Indemnitee;
(9) to any Tax which would not have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lesseebut for an Indenture Trustee's Lien;
(210) Taxes that to any Tax to the extent such Tax would not have been imposed but for a Lessor's Lien;
present or future connection between the Tax Indemnitee or any Affiliate thereof and the jurisdiction imposing such Taxes (3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraftincluding, without limitation, the Trust EstateTax Indemnitee or an Affiliate thereof being or having been a citizen or resident thereof, or being or having been organized, present or engaged in a trade or business therein, or having or having had, a permanent establishment or fixed place of business therein, or engaging, or having engaged, in one or more transactions or activities therein unrelated to the transactions contemplated by the Operative Documents), or any interest therein, or other than a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence connection arising solely by reason of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(911) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes any Tax imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the a Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax Indemnitee to the extent imposed as a result of the failure of the Owner Participant to timely and properly file any return, unless such failure is caused by LesseeTax Indemnitee's failure to timely provide information comply with any certification, information, documentation, reporting or similar procedure that is required by EXHIBIT K-2 law, treaty or regulation as a condition to be provided under the allowance of any reduction in the rate of such Tax or any exemption or other relief from such Tax;
(12) to any Tax on a Tax Indemnitee to the extent arising out of, or caused by, or to the extent such Tax would not have been incurred but for, (A) the willful misconduct or gross negligence of such Tax Indemnitee or any of its Affiliates or (B) the inaccuracy or breach of any representation, warranty, covenant or agreement by such Tax Indemnitee or any of its Affiliates in any Operative DocumentsDocument;
(13) Taxes that would not have been imposed but for an Indemnitee's breach to any Tax on a Tax Indemnitee to the extent consisting of interest, penalties, fines or additions to Tax resulting from the negligence or willful misconduct of such Tax Indemnitee or any of its Affiliates in connection with the filing of, or failure to file, any tax return, the payment of, or failure to pay any Tax, or the conduct of any covenant or proceeding in respect thereof unless resulting from the inaccuracy of any representation or warranty of such Indemnitee in any of failure by the Operative Documents;Owner to perform its obligations under Section 7(b)(v) hereof; or
(14) Taxes in to any excise tax imposed on any Tax Indemnitee under Section 4975 of the nature Internal Revenue Code as a result of the use by such Tax Indemnitee or any of its Affiliates of the assets of an intangible "employee benefit plan" (as defined in Section 3(3) of ERISA) to purchase a Secured Certificate or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of otherwise acquire any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and AffiliatesSecured Certificate.
Appears in 1 contract
Samples: Participation Agreement (Northwest Airlines Holdings Corp/Pred)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i7.4(a) shall not ------------------------------------- -------------- apply to:
(1i) Taxes on, based on, or measured by or with respect to net income of the gross or net incomeLessor, gross or net receiptsthe Agent and the Lenders (including, without limitation, minimum Taxes, capital gains Taxes, Taxes on or measured by items of tax preference or alternative taxesminimum Taxes);
(ii) Withholding Taxes, tax preferences, capital, net worth, franchise or conduct of business (but not excluding sales, use, license, rental, ad valorem, value added tax (to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) other than withholding Taxes imposed by the United States or by any state or local government or taxing authority or in which Leased Property is located (bi) imposed by any foreign government or taxing authority except where such Tax is on payments with respect to the Notes, to the extent imposed by reason of a change in Applicable Law occurring after the usedate on which the holder of such Note became the holder of such Note or (ii) on Rent, location, registration, subleasing, leasing or operation to the extent the net payment of Rent after deduction of such withholding Taxes would be less than amounts currently payable with respect to the Aircraft or the presence or activities of Lessee in such jurisdiction and exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of LesseeFunded Amounts;
(2iii) Taxes on, based on, or in the nature of or measured by Taxes on doing business, business privilege, franchise, capital, capital stock, net worth, or mercantile license or similar taxes other than (A) any increase in such Taxes imposed on such Tax Indemnitee by any state in which Leased Property is located, net of any decrease in such taxes realized by such Tax Indemnitee, to the extent that such tax increase would not have occurred if on each Funding Date the Lessor and the Lenders had advanced funds to a Lessee or the Construction Agent in the form of loans secured by the Leased Property in an amount equal to the Funded Amounts funded on such Funding Date, with debt service for such loans equal to the Basic Rent payable on each Payment Date and a principal balance at the maturity of such loans in a total amount equal to the Funded Amounts at the end of the Lease Term, or (B) any Taxes that are or are in the nature of sales, use, rental, license or property Taxes relating to any Leased Property;
(iv) Taxes that would not have been imposed but are based on, or measured by, the fees or other compensation received by a Person acting as Agent (in its individual capacities) or any Affiliate of any thereof for a Lessor's Lienacting as trustee under the Loan Agreement;
(3v) Taxes resulting that result from a voluntary transfer by any act, event or omission, or are attributable to any period of time, that occurs after the Owner Participant earlier of (A) the expiration of the AircraftLease Term with respect to any Leased Property and, if such Leased Property is required to be returned to the Trust EstateLessor in accordance with the Lease, such return and (B) the discharge in full of the Lessees' obligations to pay the Lease Balance, or any amount determined by reference thereto, with respect to any Leased Property and all other amounts due under the Lease, unless such Taxes relate to acts, events or matters occurring prior to the earlier of such times or are imposed on or with respect to any payments due under the Operative Documents after such expiration or discharge;
(vi) Taxes imposed on a Tax Indemnitee that result from any voluntary sale, assignment, transfer or other disposition or bankruptcy by such Tax Indemnitee or any related Tax Indemnitee of any interest in any Leased Property or any part thereof, or any interest therein or any interest or obligation arising under the Operative Documents, or from any sale, assignment, transfer or other disposition of any interest thereinin such Tax Indemnitee or any related Tax Indemnitee, it being understood that each of the following shall not be considered a voluntary sale: (A) any substitution, replacement or a removal of any of the Leased Property by any Lessee, (B) any sale or transfer relating to bankruptcy resulting from the exercise by any Lessee of any termination option, any purchase option or similar proceedings involving sale option, (C) any sale or transfer while an Event of Default shall have occurred and be continuing under the Owner ParticipantLease, and (D) any sale or transfer resulting from the Lessor's exercise of remedies under the Lease;
(4vii) Taxes resulting from any Tax which is being contested in accordance with the provisions of Section 7.4(c), during the pendency of such contest; --------------
(viii) any Tax that is imposed on a Tax Indemnitee as a result of such Tax Indemnitee's gross negligence or willful misconduct (including willful failure to act where such Tax Indemnitee had a duty to act) (other than gross negligence or negligence willful misconduct imputed to such Tax Indemnitee solely by reason of the Indemniteesits interest in any Leased Property) or as a result of such Tax, Indemnitee's failure to comply with Section 2.4;
(5ix) Taxes imposed any Tax that results from a Tax Indemnitee engaging, with respect to any period after the expiration of the Lease or the earlier discharge Leased Property, in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated other than those permitted by the Operative Documents;
(9x) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax to the extent imposed as a any tax, interest, penalties or additions to tax result of in whole or in part from the failure of the Owner Participant a Tax Indemnitee to file a return or pay a Tax that it is required to file or pay in a proper and timely and properly file any returnmanner, unless such failure is caused (A) results from the transactions contemplated by Lessee's failure to timely provide information required to be provided under the Operative Documents;
(13) Taxes Documents in circumstances where Lessee did not give timely notice to such Tax Indemnitee of such filing or payment requirement that would not have been imposed but for an Indemnitee's breach of any covenant or the inaccuracy of any representation or warranty permitted a proper and timely filing of such Indemnitee in any return or payment of such Tax, as the Operative Documents;
case may be, or (14B) Taxes results from the failure of Lessee to supply information necessary for the proper and timely filing of such return or payment of such Tax, as the case may be, that was not in the nature possession of an intangible or similar such Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign personIndemnitee; and
(16xi) Taxes imposed as to Lessor, any Tax that results from the breach by section 4975 the Lessor of its representation and warranty made in Section 4.3(g) or as to -------------- any Lender the Code or any successor provision theretobreach of such Lender of its representation and warranty made in Section 4.4(b). References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliates.--------------
Appears in 1 contract
Samples: Master Agreement (Rowe Companies)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i) 9.3.1 shall not apply to, and Lessee shall have no obligation to pay, or to indemnify or hold harmless any Person with respect to the following:
(1a) With respect to any Indemnitee other than Lender, Taxes imposed on, based on, or measured by or with respect to the income (including gross or net income), gross or net receipts, minimum or alternative taxes, tax preferences, capital, net worthfranchises, franchise excess profits or conduct of business of the Indemnitee (but not excluding other than sales, use, licensead valorem, rental, ad valoremproperty, value added tax or license Taxes imposed by any U.S. federal, state or local authority (to the extent or foreign government)), provided that such value added tax is not imposed as a substitute for an income tax) or property taxes) this paragraph (a) imposed by shall not exclude from the United States or by indemnity described in Section 9.3.1 above any state or local government or taxing authority or (b) such Taxes imposed by any foreign government or taxing authority except where to the extent such Tax is Taxes are imposed by reason any jurisdiction in which such Indemnitee would not be subject to Taxes of such type but for (i) the useoperation, locationpresence, registration, subleasing, leasing or operation registration of the Aircraft or any Equipment in such jurisdiction, or (ii) the presence or activities of Lessee or any sublessee, or Lessee or any sublessee making payments from or performing any other actions permitted or required under the Operative Agreements in such jurisdiction jurisdiction);
(b) Taxes attributable to any period following the earlier of (i) the expiration or early termination of the Lease and, unless the Lessee has exercised its option to purchase the Aircraft pursuant to the Lease, return of the Aircraft pursuant to Section 15 of the Lease and exceeds (ii) the Tax discharge in full of Lessee's obligations to pay the Stipulated Loss Value, and all other amounts then payable under the Lease and the other Operative Agreements; provided, however, that the exclusions set forth in this paragraph (b) shall not apply to Taxes incurred in connection with the exercise of remedies pursuant to Section 15 of the Lease Agreement or Section 5 of the Security Agreement following the occurrence and during the continuation of a Lease Event of Default thereunder or to Taxes relating to payments made by Lessee to or for the benefit of any Indemnitee under the Operative Agreements following such events;
(c) Taxes imposed on an Indemnitee in excess of Taxes that would have been imposed on if such Indemnitee had not engaged in any business in or had any presence or contact in the Indemnitee regardless jurisdiction imposing such Taxes other than any business, presence or contact as a result of the useoperation, locationpresence, registration, subleasing, leasing registration or operation location of the Aircraft in such jurisdiction or as a result of the presence or activities of Lesseetransactions contemplated by the Operative Agreements;
(2d) Taxes that would not have been imposed but for a Lessor's Lienon an Indemnitee which arise out of or are caused by the gross negligence or willful misconduct of such Indemnitee (unless such gross negligence or willful misconduct is imputed to such Indemnitee by reason of the acts or omissions of Lessee);
(3e) [*] Taxes resulting from (other than amounts necessary to make payments on an After-tax Basis) imposed on an Indemnitee which become payable as a voluntary result of a transfer by the Owner Participant such Indemnitee of all or a portion of its interest in the Aircraft, the Trust Estate, the Lease, the Note, the Loan Documents or any of the other Operative Agreements (or, where the Indemnitee is a transferee, the transfer to such Indemnitee) other than in connection with (i) the exercise of remedies pursuant to a Lease Event of Default in accordance with the terms of the Operative DocumentsAgreements, (ii) the early termination of the Lease by Lessee pursuant to Section 9 of the Lease, (iii) an Event of Loss, (iv) the exercise of Lessee's option to purchase the Aircraft pursuant to Section 17 of the Lease, or any interest therein, or (v) a transfer relating change in the situs of the Trust Estate pursuant to bankruptcy or similar proceedings involving the Owner Participanta request therefor by Lessee under Section 7.2.3;
(4) Taxes resulting from the willful misconduct or negligence of the Indemnitees;
(5f) Taxes imposed on Owner Trustee or the Bank with respect to any period after fees received by it for services rendered in its capacity as Owner Trustee under the expiration of Trust Agreement or Taxes imposed on the Lease Security Trustee or the earlier discharge Security Trustee Bank with respect to any fees received by it for services rendered in full of Lessee's obligation to pay Termination Valueits capacity as Security Trustee under the Security Agreement;
(6g) Taxes imposed on With respect to any transferee (a) if such Tax would not have been imposed on the original IndemniteeIndemnitee other than Lender, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Cost and Taxes imposed by a government or taxing authority of any jurisdiction that would which have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated capitalized as Transaction Expenses and which are paid to the transactions contemplated by the Operative Documentsappropriate taxing authority;
(9) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax to the extent imposed as a result of the failure of the Owner Participant to timely and properly file any return, unless such failure is caused by Lessee's failure to timely provide information required to be provided under the Operative Documents;
(13) Taxes that would not have been imposed but for an Indemnitee's breach of any covenant or the inaccuracy of any representation or warranty of such Indemnitee in any of the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliates.
Appears in 1 contract
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i------------------------------------- 13.2
(a) shall not apply to, and the Charterer shall have no liability to a Tax Indemnitee under Section 13.2(a) with respect to:
(1) Taxes (other than such Taxes that are sales, use, rental, property or ad valorem Taxes) imposed on, based onon or measured by, measured by or with respect to the gross or net -- ------- income, gross or net receipts, minimum or alternative taxes, tax preferences, capital, net worth, franchise excess profits or conduct of business (but not excluding sales, use, license, rental, ad valorem, value added tax (to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) which are imposed by the United States federal, or by any state or local government therein, or any foreign or international taxing authority authority, including any franchise or privilege Taxes, minimum Taxes, value added Taxes imposed in lieu of net income Taxes, withholding Taxes (b) imposed other than withholding Taxes resulting from either the Owner Trust or Owner Participant not being a United States person for United States federal income tax purposes), and any Taxes on or measured by any foreign government or taxing authority except where such Tax is imposed by reason items of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee in such jurisdiction and exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lesseetax preference;
(2) Taxes, including, without limitation, sales and transfer Taxes, that result from any voluntary or involuntary transfer by such Tax Indemnitee of any interest in the Owner Participant, the Vessel Interest, the Trust Estate or any portion of any of the foregoing, or any interest arising out of the Operative Documents or Pass Through Trust Agreement or the Secured Note or Pass Through Certificate; provided, however, that this -------- ------- Section 13.2(b)(2) shall not apply to any transfer that (A) relates to the exercise of remedies in connection with a Charter Event of Default; (B) results from a Event of Default or from an Event of Loss; or (C) results from the replacement, removal or substitution of all or any part of the Vessel Interest;
(3) Taxes imposed by any jurisdiction that would not have been imposed on a Tax Indemnitee but for a Lessor's Lien;
(3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraft, the Trust Estate, or the Operative Documents, or any interest therein, or a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for its activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents or Pass Through Trust Agreement;
(4) Taxes that result from (A) the willful misconduct or gross negligence of such Tax Indemnitee, (B) the breach or inaccuracy by such Tax Indemnitee of any of its representations, covenants and obligations under the Operative Documents, (C) the failure of a Tax Indemnitee to file tax returns properly and on a timely basis or to claim a deduction or credit to which it is entitled (provided that such Tax Indemnitee shall not be obligated to claim a deduction or credit if it requests but fails to receive an opinion of Xxxxx Xxxxxxxxxx or other independent counsel selected by such Tax Indemnitee and reasonably acceptable to the Charterer that it is entitled to claim such deduction or credit), or (D) the failure of a Tax Indemnitee to comply with certification, reporting or other similar requirements of the jurisdiction imposing such Tax; provided, -------- however, that the exclusions set forth in subclauses (C) and (D) shall not ------- apply if any such failure is the result 42 of the failure of the Charterer to (I) perform its obligations under Section 13.2(c), or to perform its duties and responsibilities pursuant to any of the Operative Documents, (II) timely and properly notify such Tax Indemnitee of the applicable filing, certification, reporting or other similar requirements, or (III) provide reasonable assistance in complying with any such requirement;
(5) Taxes which are attributable to any period or circumstance occurring after the expiration or earlier termination of the Charter, except to the extent attributable to (A) a failure of the Charterer to fully discharge its obligations under the Charter, (B) Taxes imposed on or with respect to any payments that are due after the expiration or earlier termination of the Charter and which are attributable to a period or circumstance occurring prior to such expiration or earlier termination or (C) Taxes that relate to events, matters or circumstances occurring prior to such expiration or earlier termination;
(6) Taxes which are based on or measured by fees or compensation received by the Owner Trustee for acting as Owner Trustee under the Trust Agreement, the Indenture Trustee for acting as Indenture Trustee under the Indenture or the Pass Through Trustee for acting as Pass Through Trustee under the Pass Through Trust Agreement;
(7) other than with respect to the Owner Participant, Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States person for United States federal income tax purposes;
(8) any Tax that is being contested in accordance with the provisions of Section 13.2(e) during the pendency of such contest, but only for so long as such contest is continuing in accordance with such Section and payment is not otherwise required pursuant to such Section;
(9) Taxes being contested pursuant as to which any Tax Indemnitee fails to comply with its contest obligations under Section 13.2(e) in any material respect, but only to the extent such failure materially impairs the Charterer's contest provisions contained in rights with respect to the Taxes that are the subject of the contest and is not due to any act or failure to act by the Charterer; provided, however, -------- ------- that this Section 6(b)(iv)13.2(b)(9) shall not constitute a waiver by the Charterer of its rights, if any, to assert and xxx upon any claims it may have against the Tax Indemnitee by reason of its failure to comply with its obligations under Section 13.2(e) of this Agreement;
(10) Taxes imposed on as a result of the Owner Trustee trust described in the Trust Agreement or the Owner Participant based onPass Through Trust not being treated as a grantor trust or other conduit entity for federal, measured by state or imposed with respect to any fees, commissions or compensation received by itlocal tax purposes;
(11) any Taxes with respect to a transferee or subsequent transferee to the extent of the excess of such Taxes over the amount of the Taxes that would have been imposed had there not been a transfer by the initial Tax Indemnitee after the Closing Date of (i) an interest in the Owner Participant, the Vessel Interest, or of a beneficial interest in the Trust Estate or any portion of any of the foregoing, or (ii) any interest arising under any Operative Document or Pass Through Trust Agreement or any Secured Note or Pass Through Certificate;
(12) Taxes which have been included in Owner's Cost;
(13) any Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 or ERISA or any comparable laws of any governmental authority, engaged in by any Tax Indemnitee other than, in the case of the Owner Participant, the making and holding of its investment in the Interest or the taking of any action at the request or direction of the Charterer;
(14) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity AgreementTrust resulting from a Lessor's Lien;
(1215) Interest, penalties and additions Taxes resulting from an amendment to an Operative Document which is not consented to by the Charterer in writing; or
(16) any Tax in the nature of an intangible tax or similar tax upon or with respect to the extent value of the interest of the Indenture Estate or a Certificateholder, as the case may be, in any of the Secured Note or Certificate imposed by any government or taxing authority. Notwithstanding anything contained herein or any other Operative Document to the contrary, the Charterer acknowledges and agrees to indemnify and hold harmless the Owner Participant and Owner Trust 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 Loan Participant as an indemnified Tax for purposes of this Section 13.2, unless such withholding is due to (i) the Owner Trust not being a United States person for United States federal income tax purposes, (ii) a failure of the Owner Participant or the Owner Trustee to comply with any provision of the Operative Documents (including Section 13.2(b)(4)) except if such failure is the result of the failure of the Charterer to perform its obligations under Section 13.2(c) or (iii) the breach or inaccuracy of any representations, covenants or obligations by the Owner Participant to timely and properly file any return, unless such failure is caused by Lessee's failure to timely provide information required to be provided or Owner Trust under the Operative Documents;
. If a Tax (13including any related interest, fines, penalties or addition to Tax) Taxes that would not have been imposed but for an Indemnitee's breach results from a failure of any covenant Tax Indemnitee to comply with its obligations under the Operative Documents or the inaccuracy Pass Through Trust Agreement and the Charterer is required to indemnify another Tax Indemnitee against the imposition of such Tax, then the Tax Indemnitee whose failure resulted in the imposition of such Tax shall, within 30 days after receipt of notice of payment of the Tax and appropriate payment documentation with respect thereto, pay to the Charterer an amount which equals the amount paid by the Charterer with respect to or as a result of such Tax (including any expenses or other charges borne by the Charterer) increased by (but subject to the proviso in Section 13.2(f)) the amount of tax savings to such Tax Indemnitee attributable to the making of such payment to the Charterer. The provisions of this Section 13.2(b) shall not apply to any Taxes imposed in respect of the receipt or accrual of any representation or warranty of such Indemnitee in any of indemnity payment made by the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments Charterer pursuant to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliatesthis Section 13.2 hereof.
Appears in 1 contract
Samples: Participation Agreement (Mobil Corp)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i7.4(a) shall not apply to:
(1i) Taxes on, based on, or measured by or with respect to net income of the gross or net incomeLessor, gross or net receiptsthe Agent and the Lenders (including, without limitation, minimum Taxes, capital gains Taxes, Taxes on or measured by items of tax preference or alternative taxesminimum Taxes) other than (A) any such Taxes that are, tax preferencesor are in the nature of, capital, net worth, franchise or conduct of business (but not excluding sales, use, license, rental, ad valorem, value added tax (to the extent that such value added tax is not imposed as a substitute for an income tax) rental or property taxesTaxes, and (B) (a) withholding Taxes imposed by the United States or by any state or local government or taxing authority or in which Leased Property is located (bi) imposed by any foreign government or taxing authority except where such Tax is on payments with respect to the Notes, to the extent imposed by reason of a change in Applicable Law occurring after the usedate on which Lender became a Lender hereunder or (ii) on Rent, location, registration, subleasing, leasing or operation to the extent the net payment of Rent after deduction of such withholding Taxes would be less than amounts currently payable with respect to the Aircraft or the presence or activities of Lessee in such jurisdiction and exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of LesseeFunded Amounts;
(2ii) Taxes on, based on, or in the nature of, or measured by Taxes on doing business and business privilege, franchise, capital, capital stock, net worth, gross receipts or similar Taxes, other than (A) any increase in such Taxes imposed on such Tax Indemnitee by any state in which Leased Property is located, net of any decrease in such taxes realized by such Tax Indemnitee, to the extent that such tax increase would not have occurred if on each Funding Date the Lessor and the Lenders had advanced funds to a Lessee or the Construction Agent in the form of loans secured by the Leased Property in an amount equal to the Funded Amounts funded on such Funding Date, with debt service for such loans equal to the Basic Rent payable on each Payment Date and a principal balance at the maturity of such loans in a total amount equal to the Funded Amounts at the end of the Lease Term, or (B) any Taxes that are or are in the nature of sales, use, rental, license or property Taxes relating to any Leased Property;
(iii) Taxes that would not have been imposed but are based on, or measured by, the fees or other compensation received by a Person acting as Agent (in its individual capacities) or any Affiliate of any thereof for a Lessor's Lienacting as trustee under the Loan Agreement;
(3iv) Taxes resulting that result from a voluntary transfer by any act, event or omission, or are attributable to any period of time, that occurs after the Owner Participant earlier of (A) the expiration of the AircraftLease Term with respect to any Leased Property and, if such Leased Property is required to be returned to the Trust EstateLessor in accordance with the Lease, such return and (B) the discharge in full of the Lessees' obligations to pay the Lease Balance, or any amount determined by reference thereto, with respect to any Leased Property and all other amounts due under the Lease, unless such Taxes relate to acts, events or matters occurring prior to the earlier of such times or are imposed on or with respect to any payments due under the Operative Documents after such expiration or discharge;
(v) Taxes imposed on a Tax Indemnitee that result from any voluntary sale, assignment, transfer or other disposition or bankruptcy by such Tax Indemnitee or any related Tax Indemnitee of any interest in any Leased Property or any part thereof, or any interest therein or any interest or obligation arising under the Operative Documents, or from any sale, assignment, transfer or other disposition of any interest thereinin such Tax Indemnitee or any related Tax Indemnitee, it being understood that each of the following shall not be considered a voluntary sale: (A) any substitution, replacement or a removal of any of the Leased Property by any Lessee, (B) any sale or transfer relating to bankruptcy resulting from the exercise by any Lessee of any termination option, any purchase option or similar proceedings involving sale option, (C) any sale or transfer while an Event of Default shall have occurred and be continuing under the Owner ParticipantLease, and (D) any sale or transfer resulting from the Lessor's exercise of remedies under the Lease;
(4vi) Taxes resulting from any Tax which is being contested in accordance with the willful misconduct or negligence provisions of Section 7.4(c), during the Indemniteespendency of such contest;
(5vii) Taxes any Tax that is imposed on a Tax Indemnitee as a result of such Tax Indemnitee's gross negligence or willful misconduct (other than gross negligence or willful misconduct imputed to such Tax Indemnitee solely by reason of its interest in any Leased Property);
(viii) any Tax that results from a Tax Indemnitee engaging, with respect to any period after the expiration of the Lease or the earlier discharge Leased Property, in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) transactions unrelated to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government Leased Properties or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(9ix) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax to the extent imposed as a any interest, penalties or additions to tax result of in whole or in part from the failure of the Owner Participant a Tax Indemnitee to file a return or pay a Tax that it is required to file or pay in a proper and timely and properly file any returnmanner, unless such failure is caused (A) results from the transactions contemplated by Lessee's failure to timely provide information required to be provided under the Operative Documents;
Documents in circumstances where a Lessee did not give timely notice to such Tax Indemnitee (13and such Tax Indemnitee otherwise had no actual knowledge) Taxes of such filing or payment requirement that would not have been imposed but for an Indemnitee's breach of any covenant or the inaccuracy of any representation or warranty permitted a proper and timely filing of such Indemnitee in any return or payment of such Tax, as the Operative Documents;
case may be, or (14B) Taxes results from the failure of a Lessee to supply information necessary for the proper and timely filing of such return or payment of such Tax, as the case may be, that was not in the nature possession of an intangible or similar such Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign personIndemnitee; and
(16x) Taxes imposed any Tax that results from the breach by section 4975 the Lessor of its representation and warranty made in Section 4.3(g) or the Code or breach of any successor provision thereto. References to the Owner Participant shall include such Person's respective successors Lender of its representation and permitted assigns, officers, directors, servants, employees, agents and Affiliateswarranty made in Section 4.4(b).
Appears in 1 contract
Samples: Master Agreement (Borders Group Inc)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i7(b)(i) shall not apply toapply:
(1) Taxes on, based on, measured by or with respect to any Tax Indemnitee to any Income Tax (as defined in Section 7(d) hereof) imposed by (A) the gross United States Federal government or net income(B) any U.S. state or local taxing jurisdiction;
(2) with respect to any Tax Indemnitee, gross to any Income Taxes imposed by any foreign or net receiptsinternational government, minimum jurisdiction or alternative taxes, tax preferences, capital, net worth, franchise taxing authority or conduct territory or possession of business (but not excluding sales, use, license, rental, ad valorem, value added tax (the United States except to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) imposed by Tax EXHIBIT K-1 Indemnitee would be subject to such Income Tax if the United States or by any state or local government or taxing authority or (b) imposed by any foreign government or taxing authority except where sole connection between such Tax is imposed by reason of Indemnitee and the use, location, registration, subleasing, leasing or Taxing Authority had been the location and operation of the Aircraft or the presence or activities of Lessee the Owner or any lessee within such Taxing Authority;
(3) to any capital gains taxes, excess profits taxes, value added taxes, branch profits taxes, accumulated earnings taxes, personal holding company taxes, succession taxes or estate or similar taxes;
(4) to any Tax imposed as a result of a transfer or disposition by a Tax Indemnitee including, without limitation, a transfer or disposition of all or any portion of its respective equitable or legal ownership interest in a Secured Certificate (including sales of participations therein), the Collateral (as defined in the Trust Indenture) or any Operative Document or any interest in such jurisdiction and exceeds Tax Indemnitee;
(5) to any Tax based on or measured by any fees received by any Pass Through Trustee, the Indenture Trustee or the Subordination Agent in connection with any transaction contemplated by the Operative Documents;
(6) [Intentionally Omitted]
(7) to any Tax that in the nature of an intangible or similar tax upon or with respect to the value or principal amount of the interest of any Tax Indemnitee in any of the Secured Certificates or the Pass Through Certificates;
(8) with respect to any Tax Indemnitee to any Tax imposed on or with respect to a transferee (or subsequent transferee) of an original Tax Indemnitee to the extent such Taxes would not have been required to be withheld or imposed on or with respect to such original Tax Indemnitee;
(9) to any Tax which would not have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lesseebut for an Indenture Trustee's Lien;
(210) Taxes that to any Tax to the extent such Tax would not have been imposed but for a Lessor's Lien;
present or future connection between the Tax Indemnitee or any Affiliate thereof and the jurisdiction imposing such Taxes (3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraftincluding, without limitation, the Trust EstateTax Indemnitee or an Affiliate thereof being or having been a citizen or resident thereof, or being or having been organized, present or engaged in a trade or business therein, or having or having had, a permanent establishment or fixed place of business therein, or engaging, or having engaged, in one or more transactions or activities therein unrelated to the transactions contemplated by the Operative Documents), or any interest therein, or other than a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence connection arising solely by reason of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(911) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes any Tax imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the a Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax Indemnitee to the extent imposed as a result of the failure of the Owner Participant to timely and properly file any return, unless such failure is caused by LesseeTax Indemnitee's failure to timely provide information comply with any certification, information, documentation, reporting or similar procedure that is required by EXHIBIT K-2 law, treaty or regulation as a condition to be provided under the allowance of any reduction in the rate of such Tax or any exemption or other relief from such Tax;
(12) to any Tax on a Tax Indemnitee to the extent arising out of, or caused by, or to the extent such Tax would not have been incurred but for, (A) the willful misconduct or gross negligence of such Tax Indemnitee or any of its Affiliates or (B) the inaccuracy or breach of any representation, warranty, covenant or agreement by such Tax Indemnitee or any of its Affiliates in any Operative DocumentsDocument;
(13) Taxes to any Tax on a Tax Indemnitee to the extent consisting of interest, penalties, fines or additions to Tax resulting from the negligence or willful misconduct of such Tax Indemnitee or any of its Affiliates in connection with the filing of, or failure to file, any tax return, the payment of, or failure to pay any Tax, or the conduct of any proceeding in respect thereof unless resulting from the failure by the Owner to perform its obligations under Section 7(b)(v) hereof;
(14) to any Tax imposed on any Tax Indemnitee under Section 4975 of the Internal Revenue Code or under subtitle B of ERISA or equivalent state law as a result of the use by such Tax Indemnitee or any of its Affiliates of the assets of an "employee benefit plan" (as defined in Section 3(3) of ERISA) to purchase a Secured Certificate or otherwise acquire any interest in any Secured Certificate; or
(15) to any Tax that would not have been imposed but for an Indemnitee's breach of amendment to any covenant or the inaccuracy of any representation or warranty of such Indemnitee in any of the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of Document to which the Owner Participant's interest in the Trust is not a party, which amendment was not requested or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments consented to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliatesin writing.
Appears in 1 contract
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i) shall not apply to:
(1) Taxes on, based on, measured by or with respect to the gross or net income, gross or net receipts, minimum or alternative taxes, tax preferences, capital, net worth, franchise or conduct of business (but not excluding sales, use, license, rental, ad valorem, non-recoverable value added tax (to the extent that such ad valorem or value added tax is not imposed as a substitute for an income tax and, if imposed as a substitute for an income tax, to the extent such ad valorem or value added tax exceeds the income tax that it replaces) or property taxes) (a) imposed by the United States or by any state or local government or taxing authority in the United States or (b) imposed by any foreign government or taxing authority except to the extent such Tax (a) is imposed in a jurisdiction where such Tax is imposed by reason of Indemnitee would not have been subject to tax but for (x) the use, location, registration, subleasing, leasing location or operation of the Aircraft Aircraft, the Airframe, an Engine or any Part in such jurisdiction or (y) the presence or activities of Lessee in within such jurisdiction and (b) exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing location or operation of the Aircraft Aircraft, the Airframe, an Engine or any Part in such jurisdiction or the presence or activities of LesseeLessee within such jurisdiction;
(2) Taxes that would not have been imposed but for a Lessor's Lien;
(3) Taxes resulting from a voluntary sale, assignment, transfer or other disposition by the Owner Participant Indemnitee of the Aircraft, the Airframe, an Engine or any Part, the Trust Estate, the Trust Indenture Estate, the Equipment Notes, the Pass Through Certificates or the Operative Documents, or any interest thereintherein unless such transfer or other disposition occurs (1) (x) by reason of the exercise of Lessor or the Owner Participant of remedies in accordance with and pursuant to Section 15 of the Lease when a Lease Event of Default has occurred and is continuing, or (y) as a result of the substitution or replacement of the Aircraft, the Airframe, an Engine or any Part or (2) in the case of an Indemnitee other than Lessor or the Owner Participant, while a Lease Event of Default is continuing;
(4) Taxes resulting from a transfer of the Aircraft, Airframe, an Engine or any Part, or the Trust Estate arising out of or relating to bankruptcy or similar proceedings involving the Owner Participant;
(45) Taxes resulting from the willful misconduct or gross negligence of the IndemniteesIndemnitee;
(56) Taxes imposed with respect relating to the Aircraft, the Airframe, an Engine or any Part for any period after (x) the expiration or early termination of the Lease in accordance with the terms of the Lease or (y) the earlier discharge return of the Aircraft, the Airframe, an Engine or any Part by Lessee to Owner Trustee or Owner Participant in full accordance with the terms of Lessee's obligation the Lease (in each case as it relates to pay Termination ValueTaxes for the returned items) or placement of the Aircraft in storage at the request of the Owner Trustee in accordance with the terms of the Lease, except to the extent that Taxes are incurred in connection with the exercise of any remedies of Lessor or the Owner Participant in accordance with and pursuant to Section 15 of the Lease when a Lease Event of Default has occurred and is continuing;
(67) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(9) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax to the extent imposed as a result of the failure of the Owner Participant to timely and properly file any return, unless such failure is caused by Lessee's failure to timely provide information required to be provided under the Operative Documents;
(13) Taxes that would not have been imposed but for an Indemnitee's breach of any covenant or the inaccuracy of any representation or warranty of such Indemnitee in any of the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliates.or
Appears in 1 contract
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i) shall not apply to:
(1) Taxes on, based on, measured by or with respect to the gross or net income, gross or net receipts, minimum or alternative taxes, tax preferences, capital, net worth, franchise or conduct of business (but not excluding sales, use, license, rental, ad valorem, non-recoverable value added tax (to the extent that such ad valorem or value added tax is not imposed as a substitute for an income tax and, if imposed as a substitute for an income tax, to the extent such ad valorem or value added tax exceeds the income tax that it replaces) or property taxes) (a) imposed by the United States or by any state or local government or taxing authority in the United States or (b) imposed by any foreign government or taxing authority except to the extent such Tax (a) is imposed in a jurisdiction where such Tax is imposed by reason of Indemnitee would not have been subject to tax but for (x) the use, location, registration, subleasing, leasing location or operation of the Aircraft Aircraft, the Airframe, an Engine or any Part in such jurisdiction or (y) the presence or activities of Lessee in within such jurisdiction and (b) exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing location or operation of the Aircraft Aircraft, the Airframe, an Engine or any Part in such jurisdiction or the presence or activities of LesseeLessee within such jurisdiction;
(2) Taxes that would not have been imposed but for a Lessor's Lien;
(3) Taxes resulting from a voluntary sale, assignment, transfer or other disposition by the Owner Participant Indemnitee of the Aircraft, the Airframe, an Engine or any Part, the Trust Estate, the Trust Indenture Estate, the Equipment Notes, the Pass Through Certificates or the Operative Documents, or any interest thereintherein unless such transfer or other disposition occurs (1) (x) by reason of the exercise of Lessor or the Owner Participant of remedies in accordance with and pursuant to Section 15 of the Lease when a Lease Event of Default has occurred and is continuing, or (y) as a result of the substitution or replacement of the Aircraft, the Airframe, an Engine or any Part or (2) in the case of an Indemnitee other than Lessor or the Owner Participant, while a Lease Event of Default is continuing;
(4) Taxes resulting from a transfer of the Aircraft, Airframe, an Engine or any Part, or the Trust Estate arising out of or relating to bankruptcy or similar proceedings involving the Owner Participant;
(45) Taxes resulting from the willful misconduct or gross negligence of the IndemniteesIndemnitee;
(56) Taxes imposed with respect relating to the Aircraft, the Airframe, an Engine or any Part for any period after (x) the expiration or early termination of the Lease in accordance with the terms of the Lease or (y) the earlier discharge return of the Aircraft, the Airframe, an Engine or any Part by Lessee to Owner Trustee or Owner Participant in full accordance with the terms of Lessee's obligation the Lease (in each case as it relates to pay Termination ValueTaxes for the returned items) or placement of the Aircraft in storage at the request of the Owner Trustee in accordance with the terms of the Lease, except to the extent that Taxes are incurred in connection with the exercise of any remedies of Lessor or the Owner Participant in accordance with and pursuant to Section 15 of the Lease when a Lease Event of Default has occurred and is continuing;
(67) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) 8) Taxes which have been included in the Lessor's Cost;
(8) 9) Taxes imposed by a government or taxing authority of any jurisdiction that to the extent such Taxes would have been imposed on the Indemnitee for solely by reason of activities or property of such Indemnitee in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(910) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(1011) Taxes imposed on the Owner Trustee or the Owner Participant Indenture Trustee based on, measured by or imposed with respect to any fees, commissions or compensation received by itit for services rendered in its capacity as Owner Trustee or Indenture Trustee, as the case may be;
(1112) With respect to Lessor and the Owner Participant only, Taxes imposed on the Owner Participant an Indemnitee and indemnified under the Tax Indemnity Agreement;
(1213) Interest, penalties and additions to Tax to the extent imposed as a result of the failure of the Owner Participant Indemnitee to timely and properly file any return, unless such failure is caused by Lessee's failure to timely provide information required to be provided under the Operative Documents;
(1314) Taxes that would not have been imposed but for an Indemnitee's breach of any covenant or the inaccuracy of any representation or warranty of such Indemnitee in any of the Operative Documents;
(1415) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust Estate or the Indenture Trust Estate or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(1516) U.S. withholding taxes imposed on payments to a foreign person; andperson which is a Participant;
(1617) Taxes imposed by section 4975 of the Code or any successor provision thereto. References ; and
(18) With respect to Lessor and the Owner Participant shall include such Person's respective successors only, Taxes imposed as a result of the transactions contemplated to consummate the like kind exchange of the Aircraft between the Owner Participant and permitted assigns, officers, directors, servants, employees, agents and Affiliates.the Intermediary pursuant to the like kind exchange documents identified in Section 2(c).(4)
Appears in 1 contract
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i7(b)(i) shall not apply toapply:
(1) Taxes on, based on, measured by or with respect to any Tax Indemnitee to any Income Tax (as defined in Section 7(d) hereof) imposed by (A) the gross United States Federal government or net income(B) any U.S. state or local taxing jurisdiction;
(2) with respect to any Tax Indemnitee, gross to any Income Taxes imposed by any foreign or net receiptsinternational government, minimum jurisdiction or alternative taxes, tax preferences, capital, net worth, franchise taxing authority or conduct territory or possession of business (but not excluding sales, use, license, rental, ad valorem, value added tax (the United States except to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) imposed by Tax Indemnitee would be subject to such Income Tax if the United States or by any state or local government or taxing authority or (b) imposed by any foreign government or taxing authority except where sole connection between such Tax is imposed by reason of Indemnitee and the use, location, registration, subleasing, leasing or Taxing Authority had been the location and operation of the Aircraft or the presence or activities of Lessee the Owner or any lessee within such Taxing Authority;
(3) to any capital gains taxes, excess profits taxes, value added taxes, branch profits taxes, accumulated earnings taxes, personal holding company taxes, succession taxes or estate or similar taxes;
(4) to any Tax imposed as a result of a transfer or disposition by a Tax Indemnitee including, without limitation, a transfer or disposition of all or any portion of its respective equitable or legal ownership interest in a Secured Certificate (including sales of participations therein), the Collateral (as defined in the Trust Indenture) or any Operative Document or any interest in such jurisdiction and exceeds Tax Indemnitee;
(5) to any Tax based on or measured by any fees received by any Pass Through Trustee, the Indenture Trustee or the Subordination Agent in connection with any transaction contemplated by the Operative Documents;
(6) [Intentionally Omitted]
(7) to any Tax that in the nature of an intangible or similar tax upon or with respect to the value or principal amount of the interest of any Tax Indemnitee in any of the Secured Certificates or the Pass Through Certificates;
(8) with respect to any Tax Indemnitee to any Tax imposed on or with respect to a transferee (or subsequent transferee) of an original Tax Indemnitee to the extent such Taxes would not have been required to be withheld or imposed on or with respect to such original Tax Indemnitee;
(9) to any Tax which would not have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lesseebut for an Indenture Trustee's Lien;
(210) Taxes that to any Tax to the extent such Tax would not have been imposed but for a Lessor's Lien;
present or future connection between the Tax Indemnitee or any Affiliate thereof and the jurisdiction imposing such Taxes (3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraftincluding, without limitation, the Trust EstateTax Indemnitee or an Affiliate thereof being or having been a citizen or resident thereof, or being or having been organized, present or engaged in a trade or business therein, or having or having had, a permanent establishment or fixed place of business therein, or engaging, or having engaged, in one or more transactions or activities therein unrelated to the transactions contemplated by the Operative Documents), or any interest therein, or other than a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence connection arising solely by reason of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(911) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes any Tax imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the a Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax Indemnitee to the extent imposed as a result of the failure of the Owner Participant to timely and properly file any return, unless such failure is caused by LesseeTax Indemnitee's failure to timely provide information comply with any certification, information, documentation, reporting or similar procedure that is required by law, treaty or regulation as a condition to be provided under the allowance of any reduction in the rate of such Tax or any exemption or other relief from such Tax;
(12) to any Tax on a Tax Indemnitee to the extent arising out of, or caused by, or to the extent such Tax would not have been incurred but for, (A) the willful misconduct or gross negligence of such Tax Indemnitee or any of its Affiliates or (B) the inaccuracy or breach of any representation, warranty, covenant or agreement by such Tax Indemnitee or any of its Affiliates in any Operative DocumentsDocument;
(13) Taxes to any Tax on a Tax Indemnitee to the extent consisting of interest, penalties, fines or additions to Tax resulting from the negligence or willful misconduct of such Tax Indemnitee or any of its Affiliates in connection with the filing of, or failure to file, any tax return, the payment of, or failure to pay any Tax, or the conduct of any proceeding in respect thereof unless resulting from the failure by the Owner to perform its obligations under Section 7(b)(v) hereof;
(14) to any Tax imposed on any Tax Indemnitee under Section 4975 of the Internal Revenue Code or under subtitle B of ERISA or equivalent state law as a result of the use by such Tax Indemnitee or any of its Affiliates of the assets of an "employee benefit plan" (as defined in Section 3(3) of ERISA) to purchase a Secured Certificate or otherwise acquire any interest in any Secured Certificate; or
(15) to any Tax that would not have been imposed but for an Indemnitee's breach of amendment to any covenant or the inaccuracy of any representation or warranty of such Indemnitee in any of the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of Document to which the Owner Participant's interest in the Trust is not a party, which amendment was not requested or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments consented to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliatesin writing.
Appears in 1 contract
Samples: Participation Agreement (Northwest Airlines Inc /Mn)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(iSECTION 3(i)(A) shall not apply toto and Lessee shall have no liability hereunder for:
(1) Taxes (other than amounts necessary to make payments on an After-Tax Basis) on, based on, measured by or with respect to the gross or net income, gross or net receipts, including capital gains taxes, minimum or alternative taxes, tax preferences, capitalexcess profits taxes, capital taxes, accumulated earnings taxes, branch profits taxes, personal holding company taxes, taxes applicable to passive foreign investment companies, successor taxes, estate taxes, net worth, franchise or conduct of business (but not excluding sales, use, excise, license, rental, ad valorem, non-recoverable value added tax (to the extent that such ad valorem or value added tax is not imposed as a substitute for an income tax that is not subject to indemnification hereunder and, if imposed as a substitute for such an income tax, to the extent such ad valorem or value added tax exceeds such income tax that it replaces) or property taxes and other similar taxes) (a) and any withholding taxes on, or measured by, gross or net income or receipts imposed on Lessor by the United States or by any state or local government or taxing authority in the United States or (b) imposed by any foreign government or taxing authority except where to the extent such Tax is (a) results from, or would not have been imposed by reason of but for (x) the use, location, registrationoperation, subleasing, leasing registration or operation use of the Aircraft or any Part in such jurisdiction, (y) the identity, location, place of business, activities or presence of Lessee, any Permitted Sublessee, user or activities person in possession of Lessee the Aircraft or any Part or any Affiliate of the foregoing (each, a "LESSEE PERSON") in such jurisdiction (including the execution and delivery by such Person of any Operative Document in such jurisdiction), or (z) the making of any payment under the Operative Documents by, or on behalf of, Lessee to Lessor in or from such jurisdiction, and (b) exceeds the Tax that would have been imposed by such jurisdiction on the Indemnitee regardless Lessor in the absence of the usethose activities described in CLAUSES (x), location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee(y) AND (z) herein;
(2) Taxes imposed on the Lessor that would not have been imposed but for a Lessor's Lien;
(3) Taxes imposed on Lessor resulting from a voluntary sale, assignment, transfer or other disposition by the Owner Participant Lessor of the Aircraft, the Trust EstateAirframe, an Engine or any Part, the Operative Documents, Documents or any interest thereinin the Rent unless such transfer or other disposition (i) is made in connection with the exercise of any remedies of Lessor in accordance with and pursuant to SECTION 15 of the Lease when an Event of Default has occurred and is continuing, (ii) arises in connection with (A) an Event of Loss, (B) the return of the Aircraft upon termination of the Lease, (C) the purchase of the Aircraft by Lessee pursuant to SECTION 19(b) of the Lease, (D) the substitution of any Replacement Airframe pursuant to SECTION 10(a) of the Lease or (E) a termination of the Lease under SECTION 9 of the Lease, (iii) results from (A) the maintenance of the Aircraft during the Basic Term (including the replacement and substitution of parts and modifications and improvements to the Aircraft) or (B) any Lease or assignment of Lessee's or any Permitted Sublessee's rights during the Basic Term or (iv) is made at Lessee's request or direction;
(4) Taxes imposed on Lessor resulting from a transfer of the Lessor's interest in the Aircraft, Airframe, an Engine or any Part arising out of or relating to bankruptcy or similar proceedings involving in which Lessor is the Owner Participant;
(4) Taxes resulting debtor, or any foreclosure by a creditor of Lessor, unless, in each case, such sale, assignment, transfer or other disposition results from the willful misconduct a transfer or negligence disposition made pursuant to an exercise of the Indemniteesremedies following an Event of Default;
(5) Taxes imposed with respect to any period after on the expiration Lessor resulting from the willful misconduct or gross negligence of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination ValueLessor;
(6) Taxes relating to the Lessee, Aircraft, the Airframe, an Engine or any Part for any period after (x) the expiration or early termination of the Lease in accordance with the terms of the Lease or (y) possession of the Aircraft, the Airframe, an Engine or any Part has been redelivered by Lessee to Lessor in accordance with the terms of the Lease (in each case as it relates to Taxes for the returned items) or placement of the Aircraft in storage at the request of the Lessor in accordance with the terms of the Lease, except to the extent that Taxes are incurred in connection with the exercise of any remedies of Lessor in accordance with and pursuant to SECTION 15 of the Lease when an Event of Default has occurred and is continuing and to the extent such Taxes relate to events, acts or omissions occurring or matters arising prior to or simultaneously with the time of the occurrence of the earlier of (x) or (y), and until Lessee has satisfied in full its obligations under the Lease;
(7) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) of Lessor to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
Lessor; PROVIDED, HOWEVER, the exclusion provided in this CLAUSE (7) Taxes which have been included shall not apply to (i) transferees mat acquired their interest in connection with the Lessor's Costexercise of remedies following an Event of Default, and (ii) "gross-up" amounts necessary to make payments on an After-Tax Basis, as required under the Operative Documents;
(8) Taxes imposed on Lessor by a government or taxing authority of any jurisdiction that to the extent such Taxes would not have been imposed on Lessor in the Indemnitee for absence of activities or property of such Lessor in such jurisdiction unrelated to the transactions contemplated by the Operative DocumentsLease;
(9) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(ivSECTION 3(i)(D) but only for so long as Lessee is complying with its obligations under SECTION 3(i)(D);
(10) Taxes imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect Lessor for which Lessee is obligated to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified indemnify Lessor under the Tax Indemnity Agreement;
(1211) Interest, penalties and additions to Tax imposed upon Lessor to the extent imposed as a result of the failure of the Owner Participant Lessor to timely and properly file any returnreturn required to be filed by Lessor, unless such failure is caused by Lessee's failure to timely provide information required to be provided under the Operative DocumentsDocuments (including pursuant to SECTION 3(i)(C) herein);
(12) Taxes imposed on Lessor by section 4975 of the Code or any successor provision thereto as a consequence of Lessor engaging in a "prohibited transaction" within the meaning of such provision; and
(13) Taxes imposed on Lessor that would not have been imposed but for an IndemniteeLessor's breach of any covenant or the inaccuracy of any representation or warranty of such Indemnitee Lessor in any of the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant Lessor shall include such PersonLessor's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliates.
Appears in 1 contract
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i7.4(a) ------------------------------------- -------------- shall not apply to:
(1i) Taxes on, based on, or measured by or with respect to net income of the gross or net incomeLessor and the Lender (including, gross or net receiptswithout limitation, minimum Taxes, capital gains Taxes, Taxes on or measured by items of tax preference or alternative taxesminimum Taxes) other than (A) any such Taxes that are, tax preferencesor are in the nature of, capital, net worth, franchise or conduct of business (but not excluding sales, use, license, rental, ad valorem, value added tax (to the extent that such value added tax is not imposed as a substitute for an income tax) rental or property taxesTaxes, (B) (a) withholding Taxes imposed by the United States or by any state or local government or taxing authority or in which Leased Property is located (bi) imposed by any foreign government or taxing authority except where such Tax is on payments with respect to the Notes, to the extent imposed by reason of a change in Applicable Law occurring after the usedate on which the holder of such Note became the holder of such Note or (ii) on Rent, location, registration, subleasing, leasing or operation to the extent the net payment of Rent after deduction of such withholding Taxes would be less than amounts currently payable with respect to the Funded Amounts and (C) Taxes relating to activities of the Aircraft or Lessor prior to the presence or activities of Lessee in such jurisdiction and exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of LesseeClosing Date;
(2ii) Taxes on, based on, or in the nature of or measured by Taxes on doing business, business privilege, franchise, capital, capital stock, net worth, or mercantile license or similar taxes other than (A) any increase in such Taxes imposed on such Tax Indemnitee by any state in which the Leased Property is located, net of any decrease in such taxes realized by such Tax Indemnitee, to the extent that such tax increase would not have occurred if on the Closing Date the Lessor and the Lender had advanced funds to the Lessee in the form of loans secured by the Leased Property in an amount equal to the Funded Amounts funded on such Funding Date, with debt service for such loans equal to the Basic Rent payable on each Payment Date and a principal balance at the maturity of such loans in a total amount equal to the Funded Amounts at the end of the Lease Term, or (B) any Taxes that are or are in the nature of sales, use, rental, license or property Taxes;
(iii) Taxes that would not have been imposed but are based on, or measured by, the fees or other compensation received by a Person acting as Agent (in its individual capacities) or any Affiliate of any thereof for a Lessor's Lienacting as trustee under the Loan Agreement;
(3iv) Taxes resulting that result from a voluntary transfer by any act, event or omission, or are attributable to any period of time, that occurs after the Owner Participant earliest of (A) the expiration of the AircraftLease Term and, if the Trust EstateLeased Property is required to be returned to the Lessor in accordance with the Lease, such return and (B) the discharge in full of the Lessee's obligations to pay the Lease Balance, or any amount determined by reference thereto, with respect to the Leased Property and all other amounts due under the Lease, unless such Taxes relate to acts, events or matters occurring prior to the earliest of such times or are imposed on or with respect to any payments due under the Operative Documents after such expiration or discharge;
(v) Taxes imposed on a Tax Indemnitee that result from any voluntary sale, assignment, transfer or other disposition by such Tax Indemnitee or any related Tax Indemnitee of any interest in the Leased Property or any part thereof, or any interest therein or any interest or obligation arising under the Operative Documents, or from any sale, assignment, transfer or other disposition of any interest thereinin such Tax Indemnitee or any related Tax Indemnitee, it being understood that each of the following shall not be considered a voluntary sale: (A) any substitution, replacement or a removal of any of the property by the Lessee, (B) any sale or transfer relating to bankruptcy resulting from the exercise by the Lessee of any termination option, any purchase option or similar proceedings involving sale option, (C) any sale or transfer while an Event of Default shall have occurred and be continuing under the Owner ParticipantLease, and (D) any sale or transfer resulting from the Lessor's exercise of remedies under the Lease;
(4vi) Taxes resulting from any Tax which is being contested in accordance with the willful misconduct or negligence provisions of Section 7.4(c), during the Indemniteespendency of such -------------- contest;
(5vii) Taxes any Tax that is imposed on a Tax Indemnitee as a result of such Tax Indemnitee's gross negligence or willful misconduct (other than gross negligence or willful misconduct imputed to such Tax Indemnitee solely by reason of its interest in the Leased Property);
(viii) any Tax to the extent resulting from a Tax Indemnitee engaging after the Closing Date, with respect to any period after the expiration of the Lease Leased Property or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included partnership interests in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property , in such jurisdiction unrelated to the transactions contemplated other than those permitted by the Operative Documents;
(9ix) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax to the extent imposed as any interest, penalties or additions to tax result in whole or in part from the failure of a result Tax Indemnitee to file a return that it is required to file in a proper and timely manner, unless such failure (A) results from the transactions contemplated by the Operative Documents in circumstances where the Lessee did not give timely notice to such Tax Indemnitee (and such Tax Indemnitee otherwise had no actual knowledge) of such filing requirement that would have permitted a proper and timely filing of such return, or (B) results from the failure of the Owner Participant Lessee to supply information necessary for the proper and timely and properly file any return, unless such failure is caused by Lessee's failure to timely provide information required to be provided under the Operative Documents;
(13) Taxes that would not have been imposed but for an Indemnitee's breach of any covenant or the inaccuracy of any representation or warranty filing of such Indemnitee in any of the Operative Documents;
(14) Taxes return that was not in the nature possession of an intangible or similar such Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign personIndemnitee; and
(16x) Taxes imposed any Tax that results from the breach by section 4975 the Lessor of its representation and warranty made in Section 4.2(b) or the Code or -------------- breach of any successor provision theretoLender of its representation and warranty made in Section ------- 4.3(b). References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliates.------
Appears in 1 contract
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i) shall not apply to:
(1) Taxes on, based on, measured by or with respect to the gross or net income, gross or net receipts, minimum or alternative taxes, tax preferences, capital, net worth, franchise or conduct of business (but not excluding sales, use, license, rental, ad valorem, non-recoverable value added tax (to the extent that such ad valorem or value added tax is not imposed as a substitute for an income tax and, if imposed as a substitute for an income tax, to the extent such ad valorem or value added tax exceeds the income tax that it replaces) or property taxes) (a) imposed by the United States or by any state or local government or taxing authority in the United States or (b) imposed by any foreign government or taxing authority except to the extent such Tax (a) is imposed in a jurisdiction where such Tax is imposed by reason of Indemnitee would not have been subject to tax but for (x) the use, location, registration, subleasing, leasing location or operation of the Aircraft Aircraft, the Airframe, an Engine or any Part in such jurisdiction or (y) the presence or activities of Lessee in within such jurisdiction and (b) exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing location or operation of the Aircraft Aircraft, the Airframe, an Engine or any Part in such jurisdiction or the presence or activities of LesseeLessee within such jurisdiction;
(2) Taxes that would not have been imposed but for a Lessor's Lien;
(3) Taxes resulting from a voluntary sale, assignment, transfer or other disposition by the Owner Participant Indemnitee of the Aircraft, the Airframe, an Engine or any Part, the Trust Estate, the Trust Indenture Estate, the Equipment Notes, the Pass Through Certificates or the Operative Documents, or any interest thereintherein unless such transfer or other disposition occurs (1) (x) by reason of the exercise of Lessor or the Owner Participant of remedies in accordance with and pursuant to Section 15 of the Lease when a Lease Event of Default has occurred and is continuing, or (y) as a result of the substitution or replacement of the Aircraft, the Airframe, an Engine or any Part or (2) in the case of an Indemnitee other than Lessor or the Owner Participant, while a Lease Event of Default is continuing;
(4) Taxes resulting from a transfer of the Aircraft, Airframe, an Engine or any Part, or the Trust Estate arising out of or relating to bankruptcy or similar proceedings involving the Owner Participant;
(45) Taxes resulting from the willful misconduct or gross negligence of the IndemniteesIndemnitee;
(56) Taxes imposed with respect relating to the Aircraft, the Airframe, an Engine or any Part for any period after (x) the expiration or early termination of the Lease in accordance with the terms of the Lease or (y) the earlier discharge return of the Aircraft, the Airframe, an Engine or any Part by Lessee to Owner Trustee or Owner Participant in full accordance with the terms of Lessee's obligation the Lease (in each case as it relates to pay Termination ValueTaxes for the returned items) or placement of the Aircraft in storage at the request of the Owner Trustee in accordance with the terms of the Lease, except to the extent that Taxes are incurred in connection with the exercise of any remedies of Lessor or the Owner Participant in accordance with and pursuant to Section 15 of the Lease when a Lease Event of Default has occurred and is continuing;
(67) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) 8) Taxes which have been included in the Lessor's Cost;
(8) 9) Taxes imposed by a government or taxing authority of any jurisdiction that to the extent such Taxes would have been imposed on the Indemnitee for solely by reason of activities or property of such Indemnitee in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(910) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(1011) Taxes imposed on the Owner Trustee or the Owner Participant Indenture Trustee based on, measured by or imposed with respect to any fees, commissions or compensation received by itit for services rendered in its capacity as Owner Trustee or Indenture Trustee, as the case may be;
(1112) With respect to Lessor and the Owner Participant only, Taxes imposed on the Owner Participant an Indemnitee and indemnified under the Tax Indemnity Agreement;
(1213) Interest, penalties and additions to Tax to the extent imposed as a result of the failure of the Owner Participant Indemnitee to timely and properly file any return, unless such failure is caused by Lessee's failure to timely provide information required to be provided under the Operative Documents;
(1314) Taxes that would not have been imposed but for an Indemnitee's breach of any covenant or the inaccuracy of any representation or warranty of such Indemnitee in any of the Operative Documents;
(1415) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust Estate or the Indenture Trust Estate or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(1516) U.S. withholding taxes imposed on payments to a foreign person; andperson which is a Participant;
(1617) Taxes imposed by section 4975 of the Code or any successor provision thereto. References ; and
(18) With respect to Lessor and the Owner Participant shall include such Person's respective successors only, Taxes imposed as a result of the transactions contemplated to consummate the like kind exchange of the Aircraft between the Owner Participant and permitted assigns, officers, directors, servants, employees, agents and Affiliatesthe Intermediary pursuant to the like kind exchange documents identified in Section 2(c).
Appears in 1 contract
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i7(b)(i) shall not apply toapply:
(1) with respect to any Tax Indemnitee to any Income Tax (as defined in Section 7(d) hereof) imposed by (A) the United States Federal government or (B) any U.S. state or local taxing jurisdiction;
(2) with respect to any Tax Indemnitee, to any Income Taxes onimposed by any foreign or international government, based on, measured by jurisdiction or taxing authority or territory or possession of the United States except (with respect to the gross or net incomeOwner Trustee, gross or net receipts, minimum or alternative taxes, tax preferences, capital, net worth, franchise or conduct of business (but not excluding sales, use, license, rental, ad valorem, value added tax (the Owner Participant and the Trust Estate) to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) imposed by Tax Indemnitee would be subject to such Income Tax if the United States or by any state or local government or taxing authority or (b) imposed by any foreign government or taxing authority except where sole connection between such Tax is imposed by reason of Indemnitee and the use, location, registration, subleasing, leasing or Taxing Authority had been the location and operation of the Aircraft or the presence or activities of Lessee or any sublessee within such Taxing Authority;
(3) to any capital gains taxes, excess profits taxes, value added taxes, branch profits taxes, accumulated earnings taxes, personal holding company taxes, succession taxes or estate or similar taxes;
(4) to any Tax imposed as a result of a transfer or disposition by a Tax Indemnitee including, without limitation, the revocation of the trust created by the Trust Agreement or a transfer or disposition of all or any portion of its respective equitable or legal ownership interest in the Aircraft, the Trust Estate, a Secured Certificate (including sales of participations therein), the Trust Indenture Estate (as defined in the Trust Indenture) or any Operative Document, the Intercreditor Agreement, either of the Primary Liquidity Facilities, or any Pass Through Trust Agreement or any interest in such jurisdiction and exceeds Tax Indemnitee, unless such transfer or disposition shall occur (A) pursuant to the exercise of remedies pursuant to Section 15 of the Lease or (B) in connection with the termination of the Lease pursuant to Sections 9, 10 or 19 thereof;
(5) to any Tax based on or measured by any fees received by the Owner Trustee, any Pass Through Trustee, the Indenture Trustee, the Policy Provider or the Subordination Agent in connection with any transaction contemplated by the Operative Documents, the Intercreditor Agreement, any of the Primary Liquidity Facilities or any Pass Through Trust Agreement;
(6) to any Tax imposed with respect to events occurring or matters arising after the earlier of (x) the expiration of the Term or the earlier termination of the Lease pursuant to Section 9 or 19 thereof, (y) the return of possession of the Aircraft to the Owner Trustee or its designee pursuant to the terms of the Lease or (z) the commencement of storage pursuant to Section 5(d) of the Lease provided that this exclusion shall not apply to Taxes to the extent such Taxes are imposed on or with respect to any events or matters occurring or arising prior to such expiration, termination, return of possession of the Aircraft or storage;
(7) to any Tax in the nature of an intangible or similar tax upon or with respect to the value or principal amount of the interest of any Tax Indemnitee in any of the Secured Certificates, the Owner Trust or the Pass Through Certificates;
(8) with respect to any Tax Indemnitee to any Tax imposed on or with respect to a transferee (or subsequent transferee) of an original Tax Indemnitee to the extent such Taxes would not have been required to be withheld or imposed on or with respect to such original Tax Indemnitee;
(9) to any Tax which would not have been imposed on (A) the Indemnitee regardless of Owner Trustee, the use, location, registration, subleasing, leasing or operation of the Aircraft Trust Estate or the presence Owner Participant but for, a Lessor Lien (including, for this purpose, Liens which would be a Lessor Lien but for the proviso in the definition of Lessor Liens), (B) the Indenture Trustee but for an Indenture Trustee's Lien or activities of Lessee(C) a Pass Through Trustee or the Subordination Agent, but for a Loan Participant Lien, in each case with respect to the Tax Indemnitee to whom such Lien is attributable;
(210) Taxes that to any Tax to the extent such Tax would not have been imposed but for a Lessor's Lien;
present or future connection between the Tax Indemnitee or any Affiliate thereof and the jurisdiction imposing such Taxes (3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraftincluding, without limitation, the Trust EstateTax Indemnitee or an Affiliate thereof being or having been a citizen or resident thereof, or being or having been organized, present or engaged in a trade or business therein, or having or having had, a permanent establishment or fixed place of business therein, or engaging, or having engaged, in one or more transactions or activities therein unrelated to the transactions contemplated by the Operative Documents), or any interest therein, or other than a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence connection arising solely by reason of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(911) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes any Tax imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the a Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax Indemnitee to the extent imposed as a result of the failure of the Owner Participant to timely and properly file any return, unless such failure is caused by LesseeTax Indemnitee's failure to timely provide information comply with any certification, information, documentation, reporting or similar procedure that is required by law, treaty or regulation as a condition to be provided under the allowance of any reduction in the rate of such Tax or any exemption or other relief from such Tax;
(12) to any Tax on a Tax Indemnitee to the extent arising out of, or caused by, or to the extent such Tax would not have been incurred but for, (A) the willful misconduct or gross negligence of such Tax Indemnitee or any of its Affiliates or (B) the inaccuracy or breach of any representation, warranty, covenant or agreement by such Tax Indemnitee or any of its Affiliates in any Operative DocumentsDocument, the Intercreditor Agreement, any of the Primary Liquidity Facilities or any Pass Through Trust Agreement;
(13) Taxes to any Tax on a Tax Indemnitee to the extent consisting of interest, penalties, fines or additions to Tax resulting from the negligence or willful misconduct of such Tax Indemnitee or any of its Affiliates in connection with the filing of, or failure to file, any tax return, the payment of, or failure to pay any Tax, or the conduct of any proceeding in respect thereof unless resulting from the failure by Lessee to perform its obligations under Section 7(b)(v) hereof;
(14) to any Tax imposed on any Tax Indemnitee under Section 4975 of the Internal Revenue Code or under subtitle B of ERISA or any equivalent state law as a result of the use by such Tax Indemnitee or any of its Affiliates of the assets of an "employee benefit plan" (as defined in Section 3(3) of ERISA) to purchase a Secured Certificate, make an equity investment or otherwise acquire any interest in the Trust Estate or any Secured Certificate;
(15) to any Tax that would not have been imposed but for an Indemnitee's breach of amendment to any covenant or Operative Document to which Lessee is not a party, the inaccuracy of any representation or warranty of such Indemnitee in Intercreditor Agreement, any of the Operative DocumentsPrimary Liquidity Facilities or any Pass Through Trust Agreement, which amendment was not required or consented to by Lessee in writing;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes in the case of the Policy Provider, to any premium or similar Tax; or
(17) to any penalties imposed by section 4975 on a Tax Indemnitee other than the Owner Trustee attributable to the failure of such Tax Indemnitee or any Affiliate thereof to comply with any requirement imposed on it under Sections 6011, 6111 or 6112 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliatesregulations (including temporary regulations) promulgated thereunder.
Appears in 1 contract
Samples: Participation Agreement (Northwest Airlines Inc /Mn)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(iSECTION 3(i)(A) shall not apply toto and Sublessee shall have no liability hereunder for:
(1) Taxes (other than amounts necessary to make payments on an After-Tax Basis) on, based on, measured by or with respect to the gross or net income, gross or net receipts, including capital gains taxes, minimum or alternative taxes, tax preferences, capitalexcess profits taxes, capital taxes, accumulated earnings taxes, branch profits taxes, personal holding company taxes, taxes applicable to passive foreign investment companies, successor taxes, estate taxes, net worth, franchise or conduct of business (but not excluding sales, use, excise, license, rental, ad valorem, non-recoverable value added tax (to the extent that such ad valorem or value added tax is not imposed as a substitute for an income tax that is not subject to indemnification hereunder and, if imposed as a substitute for such an income tax, to the extent such ad valorem or value added tax exceeds such income tax that it replaces) or property taxes and other similar taxes) (a) and any withholding taxes on, or measured by, gross or net income or receipts imposed on Sublessor by the United States or by any state or local government or taxing authority in the United States or (b) imposed by any foreign government goverment or taxing authority except where to the extent such Tax is (a) results from, or would not have been imposed by reason of but for (x) the use, location, registrationoperation, subleasing, leasing registration or operation use of the Aircraft or any Part in such jurisdiction, (y) the identity, location, place of business, activities or presence of Sublessee, any Sub-Sublessee, user or activities person in possession of Lessee the Aircraft or any Part or any Affiliate of the foregoing (each, A "SUBLESSEE PERSON") in such jurisdiction (including the execution and delivery by such Person of any Operative Document in such jurisdiction), or (z) the making of any payment under the Operative Documents by, or on behalf of, Sublessee to a Sublessor in or from such jurisdiction, and (b) exceeds the Tax that would have been imposed by such jurisdiction on the Indemnitee regardless Sublessor in the absence of the usethose activities described in CLAUSES (x), location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee(y) AND (z) herein;
(2) Taxes imposed on the Sublessor or the Trust Estate that would not have been imposed but for a LessorSublessor's Lien;
(3) Taxes imposed on Sublessor resulting from a voluntary sale, assignment, transfer or other disposition by the Owner Participant Sublessor of its leasehold interest in the Head Lease Documents or the Operative Documents or any interest in the Rent unless such transfer or other disposition (i) is made in connection with the exercise of any remedies of Sublessor in accordance with and pursuant to SECTION 15 of the Sublease when a Sublease Event of Default has occurred and is continuing, (ii) arises in connection with (A) a Sublease Event of Loss, (B) the return of the Aircraft upon termination of the Sublease, (C) the purchase of the Aircraft by Sublessee pursuant to SECTION 19(b) of the Sublease, (D) the substitution of any Replacement Airframe pursuant Sublease Agreement (MSN 30808) to SECTION 10(a) of the Sublease or (E) a termination of the Sublease under SECTION 9 of the Sublease, (iii) results from (A) the maintenance of the Aircraft during the Basic Term (including the replacement and substitution of parts and modifications and improvements to the Aircraft) or (B) any Sublease or assignment of Sublessee's or any Sub-sublessee's rights during the Basic Term or (iv) is made at Sublessee's request or direction;
(4) Taxes imposed on Sublessor resulting from a transfer of the Sublessor's leasehold interest in the Aircraft, the Trust EstateAirframe, or the Operative Documents, an Engine or any interest therein, Part arising out of or a transfer relating to bankruptcy or similar proceedings involving in which Sublessor is the Owner Participant;
(4) Taxes resulting debtor, or any foreclosure by a creditor of Sublessor, unless, in each case, such sale, assignment, transfer or other disposition results from the willful misconduct a transfer or negligence disposition made pursuant to an exercise of the Indemniteesremedies following a Sublease Event of Default;
(5) Taxes imposed with respect to any period after on the expiration Sublessor resulting from the willful misconduct or gross negligence of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination ValueSublessor;
(6) Taxes relating to the Sublessee, Aircraft, the Airframe, an Engine or any Part for any period after (x) the expiration or early termination of the Sublease in accordance with the terms of the Sublease or (y) possession of the Aircraft, the Airframe, an Engine or any Part has been redelivered by Sublessee to Sublessor in accordance with the terms of the Sublease (in each case as it relates to Taxes for the returned items) or placement of the Aircraft in storage at the request of the Sublessor in accordance with the terms of the Sublease, except to the extent that Taxes are incurred in connection with the exercise of any remedies of Sublessor in accordance with and pursuant to SECTION 15 of the Sublease when a Sublease Event of Default has occurred and is continuing and to the extent such Taxes relate to events, acts or omissions occurring or matters arising prior to or simultaneously with the time of the occurrence of the earliest of (x) or (y), and until Sublessee has satisfied in full its obligations under the Sublease;
(7) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) of Sublessor to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
Sublessor; PROVIDED, HOWEVER, the exclusion provided in this CLAUSE (76) Taxes which have been included shall not apply to (i) transferees that acquired their interest in connection with the Lessor's Costexercise of remedies following a Sublease Event of Default, and (ii) "gross-up" amounts necessary to make payments on an After-Tax Basis, as required under the Operative Documents;
(8) Taxes imposed on Sublessor by a government or taxing authority of any jurisdiction that to the extent such Taxes would not have been imposed on Sublessor in the Indemnitee for absence of activities or property of such Sublessor in such jurisdiction unrelated to the transactions contemplated by the Operative DocumentsSublease;
(9) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(ivSECTION 3(j)(D) but only for so long as Sublessee is complying with its obligations under SECTION 3(j)(D);. Sublease Agreement (MSN 30808)
(10) Taxes imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect Sublessor for which Sublessee is obligated to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified indemnify Sublessor under the Sublease Tax Indemnity Agreement;
(1211) Interest, penalties and additions to Tax imposed upon Sublessor to the extent imposed as a result of the failure of the Owner Participant Sublessor to timely and properly file any returnreturn required to be filed by Sublessor, unless such failure is caused by LesseeSublessee's failure to timely provide information required to be provided under the Operative DocumentsDocuments (including pursuant to SECTION 3(j)(C) herein);
(12) Taxes imposed on Sublessor by section 4975 of the Code or any successor provision thereto as a consequence of Sublessor engaging in a "prohibited transaction" within the meaning of such provision; and
(13) Taxes imposed on Sublessor that would not have been imposed but for an IndemniteeSublessor's breach of any covenant or the inaccuracy of any representation or warranty of such Indemnitee Sublessor in any of the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant Sublessor shall include such PersonSublessor's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliates.
Appears in 1 contract
Samples: Sublease Agreement (Atlas Air Worldwide Holdings Inc)
Exclusions from General Tax Indemnity. The Each of the following shall constitute an Excluded Tax for purposes of Section 12.2(a)(1), and the provisions of Section 6(b)(i12.2(a)(2) shall not apply to, and the Lessee shall have no liability to a Tax Indemnitee under Section 12.2(a)(2) with respect to:
(1) Taxes (other than such Taxes that are sales, use, rental, property, stamp, document filing, license, ad valorem, value added, franchise, privilege, doing business Taxes or Taxes imposed by way of withholding on the gross income of a Tax Indemnitee) imposed on a Tax Indemnitee that are capital gains Taxes, excess profits Taxes, minimum and/or alternative minimum Taxes, accumulated earnings Taxes, personal holding company Taxes, succession Taxes, estate Taxes, or Taxes imposed on, based onon or measured by, measured by or with respect to the gross or net income, gross or net receipts, minimum or alternative taxes, tax preferences, capital, or net worth, franchise or conduct worth of business (but not excluding sales, use, license, rental, ad valorem, value added tax (to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) Tax Indemnitee which are imposed by the United States or by any state state, local, or local government or other taxing authority or (b) within the United States; provided that this exclusion shall not apply to any increase in Taxes imposed by a jurisdiction to which the Platform, or any foreign government or taxing authority except where such Tax portion thereof, is imposed by reason of relocated during the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee in such jurisdiction and exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of LesseeLease Term;
(2) Taxes on a Tax Indemnitee, including, without limitation, sales and transfer Taxes, that would result from any voluntary or involuntary transfer by such Tax Indemnitee whether by operation of law or otherwise of any interest in the Undivided Interest, the Trust Estate, the Lease or any portion of any of the foregoing, or any interest arising out of the Operative Documents or the Notes; provided, however, that this Section 12.2(b)(2) shall not have been imposed but for apply to any transfer that (A) with respect to any Participant, and its respective Affiliates, officers, directors, agents, and employees, occurs after a Lessor's LienLease Event of Default has occurred and is continuing, or, in the case of any other Tax Indemnitee, relates to the exercise of remedies in connection with a Lease Event of Default; (B) results from an Event of Loss or from any other destruction, damage, theft, or governmental taking, confiscation, seizure, or requisition of or to the Platform or any material part thereof that does not yet constitute an Event of Loss; (C) is required by the Operative Documents; (D) is made to the Lessee or another Person at the Lessee’s direction; (E) results from the replacement or removal of all or any part of the Undivided Interest; or (F) occurs on the Closing Date in connection with the consummation of the transactions contemplated by the Operative Documents;
(3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraft, the Trust Estate, or the Operative Documents, or any interest therein, or a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the a Tax Indemnitee for solely as a result of its activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(4) Taxes on a Tax Indemnitee that result from (A) the willful misconduct, gross negligence, or fraud of such Tax Indemnitee (IT BEING THE INTENT OF THE PARTIES THAT THE EXCLUSION IN THIS CLAUSE (4) DOES NOT EXCLUDE INDEMNIFICATION RESULTING FROM SUCH TAX INDEMNITEE’S OWN NEGLIGENCE) or (B) the breach or inaccuracy by such Tax Indemnitee of any of its representations, warranties or covenants and the failure to perform or observe any agreement under the Operative Documents, unless any such breach, inaccuracy or failure is caused by or results from any act, failure to act, or breach of representation, warranty, or covenant by any Lessee Person or any other party to the Operative Documents or the Joint Operating Agreement;
(5) Taxes on a Tax Indemnitee that result from (A) the failure of such Tax Indemnitee to file tax returns properly and on a timely basis or to claim a deduction or credit to which it is entitled or (B) the failure of such Tax Indemnitee to comply with certification, reporting or other similar requirements of the jurisdiction imposing such Tax; provided, however, that the exclusions set forth in subclauses (A) and (B) shall not apply if any such failure is the result of (x) the failure of the Lessee to (I) perform its obligations under Section 12.2(c) or to perform its duties and responsibilities pursuant to any of the Operative Documents or the Joint Operating Agreement, (II) timely and properly notify such Tax Indemnitee of the applicable filing, certification, reporting or other similar requirements (including the availability of any deduction or credit other than with respect to any Taxes described as not indemnifiable in Section 12.2(b)(1)), or (III) provide reasonable assistance in complying with any such requirement; or (y) a determination by the Owner Participant in good faith that taking any action required in clause (A) in order to obtain a deduction or credit or (B) of this subsection, and in either case, which action is not otherwise required by law could result in any unindemnified adverse consequences or risk of unindemnified adverse consequences to the Lessor, the Lessor Trustee, the Trust Estate, or the Owner Participant or its respective Affiliates, officers, directors, agents or employees;
(6) Taxes which are attributable to any period or circumstance occurring after the expiration or earlier termination of the Lease, except to the extent such Taxes would not have been incurred but for or are attributable to (A) a Lease Event of Default, (B) a failure of the Lessee to fully discharge its obligations under the Operative Documents, or (C) Taxes imposed on or with respect to any payments that are due after the expiration or earlier termination of the Lease and which are attributable to a period or circumstance occurring prior to or simultaneously with such expiration or earlier termination;
(7) Taxes on the Lessor Trustee or the Indenture Trustee which are based on or measured by fees or compensation received by the Lessor Trustee for acting as Lessor Trustee under the Trust Agreement or the Indenture Trustee for acting as Indenture Trustee under the Indenture;
(8) Taxes on a Tax Indemnitee to the extent such Taxes would not have been imposed if such Tax Indemnitee were a United States person for United States federal income tax purposes (except if such Tax Indemnitee first becomes a Tax Indemnitee during the existence of a Lease Event of Default);
(9) Taxes any Tax that is being contested in accordance with the provisions of Section 12.2(e) during the pendency of such contest, but only for so long as such contest is continuing in accordance with such Section and payment is not otherwise required pursuant to the contest provisions contained in Section 6(b)(iv)such Section;
(10) Taxes imposed on a Tax Indemnitee as to which such Tax Indemnitee fails to comply with its contest obligations under Section 12.2(e) but only to the Owner Trustee or extent such failure precludes a contest and the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by itLessee has a reasonable basis for such contest;
(11) any Taxes imposed on a transferee or subsequent transferee to the extent of the excess of such Taxes over the total amount of the Taxes of the same or similar nature that would have been imposed had there not been a transfer by the initial Tax Indemnitee after the Closing Date (except in the case of a transfer by the Owner Participant and indemnified or the Lessor which is described in clauses (A), (B), (C) or (E) of Section 12.2(b)(2) above) of (i) an interest in the Undivided Interest, or of a beneficial interest in the Trust Estate or any portion of any of the foregoing, or (ii) any interest arising under any Operative Document or any Note;
(12) Taxes which have been included in Lessor’s Cost;
(13) Taxes imposed on any party to the Tax Indemnity Agreement that are United States federal net income Taxes of such party including any Taxes which are the subject of the Tax Indemnity Agreement;
(1214) InterestTaxes imposed on the Lessor, the Lessor Trustee or the Owner Participant resulting from a Lessor’s Lien or an Owner Participant’s Lien, respectively;
(15) Taxes imposed on a Tax Indemnitee resulting from an amendment to an Operative Document to which such Tax Indemnitee is a party which amendment is not consented to by the Lessee in writing or required by the Operative Documents (unless such amendment occurs as the result of a Lease Event of Default);
(16) any Tax (other than a Tax imposed on the Owner Participant, the Lessor or the Lessor Trustee) in the nature of an intangible tax, or similar tax upon or with respect to the value of the interest of the Indenture Estate, as the case may be, in any of the Notes imposed by any government or taxing authority;
(17) To the extent indemnified under Section 12.1(a)(vii), Taxes resulting from any violation of ERISA or Section 4975 of the Code; or
(18) any Tax imposed by way of withholding on the gross income of a Tax Indemnitee by a U.S. federal, state or local jurisdiction unless, and to the extent, such Tax is attributable to (i) the Lessee, any Person acting on behalf of the Lessee, or any person using the Undivided Interest (other than the Owner Participant or the Lessor) or relocating the Platform, or any portion thereof, to such jurisdiction; (ii) the Platform’s location on the Closing Date if other than the location certified by the Lessee on the Closing Date; or (iii) a change in applicable treaty or law on or after the closing Date; provided that this exclusion shall not apply to Taxes (i) that are sales, use, rental, property, stamp, document filing, license, ad valorem, value added, franchise or doing business Taxes or (ii) which are imposed upon a Tax Indemnitee (A) which acquired its interest in the overall transaction contemplated by the Operative Documents pursuant to a transfer from a Tax Indemnitee during the existence of a Lease Event of Default or (B) as the result of a Lease Event of Default. If the Lessee is required to pay any indemnity hereunder on an After-Tax Basis, none of the exclusions in Section 12.2(b)(1) through (18) above shall be read to exclude any Taxes that are necessary to pay such indemnity on an After-Tax Basis. Notwithstanding anything contained herein or any other Operative Document to the contrary, Lessee acknowledges and agrees to indemnify and hold harmless the Owner Participant, the Lessor and the Lessor Trustee (in their respective trust and individual capacities) on an After-Tax Basis 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 a Loan Participant or any successor, assignee or Affiliate thereof, as an indemnified Tax for purposes of this Section 12.2, unless such withholding is a result of the Owner Participant, the Lessor or the Lessor Trustee not being a United States person for United States federal income tax purposes. If a Tax (including any related interest, fines, penalties or addition to Tax) (other than, in the case of the Owner Participant, the Lessor and additions the Lessor Trustee, withholding taxes referred to in the previous sentence) results from a breach or inaccuracy of any Tax Indemnitee of any of its representations, warranties or covenants, or the failure to perform or observe any agreements under the Operative Documents, unless, in the case of the Owner Participant and its respective Affiliates, officers, directors, agents and employees, any such breach, inaccuracy or failure is caused by or results from any act, failure to act or breach of representation, warranty or covenant, or the failure to perform any agreement of any Lessee Person or any other party to the extent imposed Operative Documents or the Joint Operating Agreement and the Lessee is required to indemnify another Tax Indemnitee against the imposition of such Tax, then the Tax Indemnitee whose breach or failure resulted in the imposition of such Tax shall, within 30 days after receipt of notice of payment of the Tax and appropriate payment documentation with respect thereto, pay to the Lessee an amount which equals the amount paid by the Lessee with respect to or as a result of the failure such Tax. Notwithstanding any provision of the Owner Participant Operative Documents to timely the contrary, the Lessee agrees (i) to indemnify and properly file hold harmless each Tax Indemnitee on an After-Tax Basis for any returnTaxes imposed by any United States federal, unless such failure is caused state or local jurisdiction or by Lessee's failure to timely provide information required to be provided under the Operative Documents;
(13) Taxes any non-United States jurisdiction in connection with, resulting from or that would not have been imposed but for an Indemnitee's breach the removal of the Platform or any covenant portion thereof from United States territorial waters during the Lease Term, whether or the inaccuracy of any representation or warranty of not such Indemnitee in any of removal is permitted by the Operative Documents;
; and (14ii) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to indemnify the Owner Participant against income, franchise and withholding taxes (other than such taxes imposed by the U. S. Internal Revenue Code) imposed by (x) any jurisdiction to which the Platform is relocated after the Closing Date and (y) any jurisdiction in which the Platform is located on the Closing Date if other than the location certified by the Lessee on the Closing Date, in the case of either (x) or (y) only to the extent of the excess of such taxes imposed by such jurisdiction over the amount that would have been imposed by such jurisdiction had the Platform not been in such location. The provisions of this Section 12.2(b) shall include such Person's respective successors and permitted assignsnot apply to any Taxes imposed in respect of the receipt or accrual of any payment made by the Lessee pursuant to Section 12.1 hereof, officers, directors, servants, employees, agents and Affiliatesthis Section 12.2 or pursuant to the Tax Indemnity Agreement.
Appears in 1 contract
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i7(b)(i) shall not apply toapply:
(1) with respect to any Tax Indemnitee to any Income Tax (as defined in Section 7(d) hereof) imposed by (A) the United States Federal government or (B) any U.S. state or local taxing jurisdiction;
(2) with respect to any Tax Indemnitee, to any Income Taxes onimposed by any foreign or international government, based on, measured by jurisdiction or taxing authority or territory or possession of the United States except (with respect to the gross or net incomeOwner Trustee, gross or net receipts, minimum or alternative taxes, tax preferences, capital, net worth, franchise or conduct of business (but not excluding sales, use, license, rental, ad valorem, value added tax (the Owner Participant and the Trust Estate) to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) imposed by Tax Indemnitee would be subject to such Income Tax if the United States or by any state or local government or taxing authority or (b) imposed by any foreign government or taxing authority except where sole connection between such Tax is imposed by reason of Indemnitee and the use, location, registration, subleasing, leasing or Taxing Authority had been the location and operation of the Aircraft or the presence or activities of Lessee or any sublessee within such Taxing Authority;
(3) to any capital gains taxes, excess profits taxes, value added taxes, branch profits taxes, accumulated earnings taxes, personal holding company taxes, succession taxes or estate or similar taxes;
(4) to any Tax imposed as a result of a transfer or disposition by a Tax Indemnitee including, without limitation, the revocation of the trust created by the Trust Agreement or a transfer or disposition of all or any portion of its respective equitable or legal ownership interest in the Aircraft, the Trust Estate, a Secured Certificate (including sales of participations therein), the Trust Indenture Estate (as defined in the Trust Indenture) or any Operative Document, the Intercreditor Agreement, any of the Liquidity Facilities, or any Pass Through Trust Agreement or any interest in such jurisdiction and exceeds Tax Indemnitee, unless such transfer or disposition shall occur (A) pursuant to the exercise of remedies pursuant to Section 15 of the Lease or (B) in connection with the termination of the Lease pursuant to Sections 9, 10 or 19 thereof;
(5) to any Tax based on or measured by any fees received by the Owner Trustee, any Pass Through Trustee, the Indenture Trustee or the Subordination Agent in connection with any transaction contemplated by the Operative Documents, the Intercreditor Agreement, any of the Liquidity Facilities or any Pass Through Trust Agreement;
(6) to any Tax imposed with respect to events occurring or matters arising after the earlier of (x) the expiration of the Term or the earlier termination of the Lease pursuant to Section 9 or 19 thereof, (y) the return of possession of the Aircraft to the Owner Trustee or its designee pursuant to the terms of the Lease or (z) the commencement of storage pursuant to Section 5(d) of the Lease PROVIDED that this exclusion shall not apply to Taxes to the extent such Taxes are imposed on or with respect to any events or matters occurring or arising prior to such expiration, termination, return of possession of the Aircraft or storage;
(7) to any Tax in the nature of an intangible or similar tax upon or with respect to the value or principal amount of the interest of any Tax Indemnitee in any of the Secured Certificates, the Owner Trust or the Pass Through Certificates;
(8) with respect to any Tax Indemnitee to any Tax imposed on or with respect to a transferee (or subsequent transferee) of an original Tax Indemnitee to the extent such Taxes would not have been required to be withheld or imposed on or with respect to such original Tax Indemnitee;
(9) to any Tax which would not have been imposed on (A) the Indemnitee regardless of Owner Trustee, the use, location, registration, subleasing, leasing or operation of the Aircraft Trust Estate or the presence Owner Participant but for, a Lessor Lien (including, for this purpose, Liens which would be a Lessor Lien but for the proviso in the definition of Lessor Liens), (B) the Indenture Trustee but for an Indenture Trustee's Lien or activities of Lessee(C) a Pass Through Trustee or the Subordination Agent, but for a Loan Participant Lien, in each case with respect to the Tax Indemnitee to whom such Lien is attributable;
(210) Taxes that to any Tax to the extent such Tax would not have been imposed but for a Lessor's Lien;
present or future connection between the Tax Indemnitee or any Affiliate thereof and the jurisdiction imposing such Taxes (3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraftincluding, without limitation, the Trust EstateTax Indemnitee or an Affiliate thereof being or having been a citizen or resident thereof, or being or having been organized, present or engaged in a trade or business therein, or having or having had, a permanent establishment or fixed place of business therein, or engaging, or having engaged, in one or more transactions or activities therein unrelated to the transactions contemplated by the Operative Documents), or any interest therein, or other than a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence connection arising solely by reason of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(911) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes any Tax imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the a Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax Indemnitee to the extent imposed as a result of the failure of the Owner Participant to timely and properly file any return, unless such failure is caused by LesseeTax Indemnitee's failure to timely provide information comply with any certification, information, documentation, reporting or similar procedure that is required by law, treaty or regulation as a condition to be provided under the allowance of any reduction in the rate of such Tax or any exemption or other relief from such Tax;
(12) to any Tax on a Tax Indemnitee to the extent arising out of, or caused by, or to the extent such Tax would not have been incurred but for, (A) the willful misconduct or gross negligence of such Tax Indemnitee or any of its Affiliates or (B) the inaccuracy or breach of any representation, warranty, covenant or agreement by such Tax Indemnitee or any of its Affiliates in any Operative DocumentsDocument, the Intercreditor Agreement, any of the Liquidity Facilities or any Pass Through Trust Agreement;
(13) Taxes to any Tax on a Tax Indemnitee to the extent consisting of interest, penalties, fines or additions to Tax resulting from the negligence or willful misconduct of such Tax Indemnitee or any of its Affiliates in connection with the filing of, or failure to file, any tax return, the payment of, or failure to pay any Tax, or the conduct of any proceeding in respect thereof unless resulting from the failure by Lessee to perform its obligations under Section 7(b)(v) hereof;
(14) to any Tax imposed on any Tax Indemnitee under Section 4975 of the Internal Revenue Code or under subtitle B of ERISA or any equivalent state law as a result of the use by such Tax Indemnitee or any of its Affiliates of the assets of an "employee benefit plan" (as defined in Section 3(3) of ERISA) to purchase a Secured Certificate, make an equity investment or otherwise acquire any interest in the Trust Estate or any Secured Certificate;
(15) to any Tax that would not have been imposed but for an Indemnitee's breach of amendment to any covenant or Operative Document to which Lessee is not a party, the inaccuracy of any representation or warranty of such Indemnitee in Intercreditor Agreement, any of the Operative Documents;
(14) Taxes Liquidity Facilities or any Pass Through Trust Agreement, which amendment was not required or consented to by Lessee in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign personwriting; andor
(16) Taxes to any penalties imposed by section 4975 on a Tax Indemnitee other than the Owner Trustee attributable to the failure of such Tax Indemnitee or any Affiliate thereof to comply with any requirement imposed on it under Sections 6011, 6111 or 6112 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliatesregulations (including temporary regulations) promulgated thereunder.
Appears in 1 contract
Exclusions from General Tax Indemnity. The provisions Section 8.01 (except for the first two sentences of Section 6(b)(ithe first paragraph thereof) shall not apply to:
(1a) in the case of Owner Participant and any Loan Participant, Taxes on, based on, measured by (other than Taxes that are or with respect to are in the gross or net income, gross or net receipts, minimum or alternative taxes, tax preferences, capital, net worth, franchise or conduct nature of business (but not excluding sales, use, licenseproperty, rentalvalue-added, ad valorem, value added tax (to the extent that such value added tax is not imposed as a substitute for an income tax) license or property taxes) (arental Taxes) imposed by the United States Federal government pursuant to Subtitle A of the Code or any successor provision (including any minimum Taxes, withholding Taxes and any Taxes on or measured by any state or local government or taxing authority or items of tax preference), other than in the case of any Loan Participant (b) imposed by any foreign government or taxing authority except where such Tax is imposed by reason of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee in such jurisdiction and exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee;
(2i) Taxes that would not have been imposed but for if a Lessor's Lien;
change in the Amortization Schedules pursuant to Section 2.03(b) of the Indenture had not occurred and (3ii) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraft, the Trust Estate, or the Operative Documents, or any interest therein, or a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax that would not have been imposed on if Lessee had not assumed the original Indemnitee, Loan Certificates pursuant to Section 6.09 of the Indenture or Section 4.02(b) of the Lease;
(b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
case of Owner Participant and Loan Participants, Taxes (8) other than Taxes that are or are in the nature of sales, use, property, value-added, license or rental Taxes and other than any Taxes imposed by a any government or taxing authority outside the United States as a result of the location of the Facility Assets or any part thereof in the jurisdiction imposing the Tax ("Indemnified Foreign-Taxes")) imposed on an Indemnified Person that are based upon or measured by gross or not income or gross or net receipts of such Indemnified Person (including any capital gains Taxes, minimum Taxes and any Taxes on or measured by any items of tax preference) other than in the case of any jurisdiction Loan Participant (i) Taxes that would not have been imposed if a change in the Amortization Schedules pursuant to Section 2.03(b) of the Indenture had not occurred, (ii) Taxes that would not have been imposed if Lessee had not assumed the Loan Certificates pursuant to Section 6.09 of the Indenture or Section 4.02(b) of this Lease, (iii) Taxes that would not have been imposed if the loans evidenced by the Loan Certificates had been made directly to Lessee and (iv) Taxes imposed by any jurisdiction other than a taxing jurisdiction in which such Loan Participant is subject to such Taxes without regard to the transactions contemplated by the operative Documents.
(c) in the case of Owner Participant and Loan Participants, franchise Taxes imposed on an Indemnified Person and Taxes on capital or net worth of an Indemnified Person (in each case, other than Taxes that are or are in the Indemnitee for activities nature of sales, use, property, value-added, license or property rental Taxes and other than Indemnified Foreign Taxes) other than, in the case of any Loan Participant (i) Taxes that would not have been imposed if the loans evidenced by the Loan Certificates had been made directly to Lessee and (ii) Taxes imposed by any jurisdiction other than a taxing jurisdiction in which such jurisdiction unrelated Loan Participant is subject to such Taxes without regard to the transactions contemplated by the Operative Documents;
(9d) Taxes that are based on, or measured by, the fees or other compensation received by Owner Trustee or Indenture Trustee for acting as trustees under the Trust Agreement and the Indenture, respectively;
(e) Taxes that have not been paid or credited and that are being contested pursuant in accordance with the provisions of Section 8.03, during the pendency of such contest, so long as Lessor shall be receiving all payments required under this Lease and holders of the Loan Certificates shall be receiving all payments required under the Loan Certificates when payable without reduction for such Taxes;
(f) Taxes that are imposed an any Indemnified Person as a result of such Indemnified Person's gross negligence or willful misconduct (other than gross negligence or willful misconduct imputed to such Indemnified Person solely by reason of its interest in the contest provisions contained Facility or its participation in Section 6(b)(ivthe Overall Transaction);
(10g) Taxes imposed on an Indemnified Person that result from any voluntary transfer (it being understood that the Owner Trustee term "voluntary transfer" does not include any transfer provided for in the Operative Documents (other than pursuant to Article VII of the Participation Agreement or the Owner Participant based onSection 15.02 of this Lease and, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax if Lessor shall receive an amount at least equal to the extent imposed as a result of the failure of the Owner Participant to timely applicable Stipulated Loss Value free and properly file any return, unless such failure is caused by Lessee's failure to timely provide information required to be provided under the Operative Documents;
(13) Taxes that would not have been imposed but for an Indemnitee's breach clear of any covenant or the inaccuracy of any representation or warranty of such Indemnitee in any of the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed uponTaxes, or with respect other than pursuant to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliates.
Appears in 1 contract
Samples: Lease Agreement (New Tenneco Inc)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i7(b)(i) shall not apply toapply:
(1) Taxes on, based on, measured by or with respect to any Tax Indemnitee to any Income Tax (as defined in Section 7(d) hereof) imposed by (A) the gross United States Federal government or net income(B) any U.S. state or local taxing jurisdiction;
(2) with respect to any Tax Indemnitee, gross to any Income Taxes imposed by any foreign or net receiptsinternational government, minimum jurisdiction or alternative taxes, tax preferences, capital, net worth, franchise taxing authority or conduct territory or possession of business (but not excluding sales, use, license, rental, ad valorem, value added tax (the United States except to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) imposed by Tax EXHIBIT K-1 Indemnitee would be subject to such Income Tax if the United States or by any state or local government or taxing authority or (b) imposed by any foreign government or taxing authority except where sole connection between such Tax is imposed by reason of Indemnitee and the use, location, registration, subleasing, leasing or Taxing Authority had been the location and operation of the Aircraft or the presence or activities of Lessee the Owner or any lessee within such Taxing Authority;
(3) to any capital gains taxes, excess profits taxes, value added taxes, branch profits taxes, accumulated earnings taxes, personal holding company taxes, succession taxes or estate or similar taxes;
(4) to any Tax imposed as a result of a transfer or disposition by a Tax Indemnitee including, without limitation, a transfer or disposition of all or any portion of its respective equitable or legal ownership interest in a Secured Certificate (including sales of participations therein), the Collateral (as defined in the Trust Indenture) or any Operative Document or any interest in such jurisdiction and exceeds Tax Indemnitee;
(5) to any Tax based on or measured by any fees received by any Pass Through Trustee, the Indenture Trustee, the Policy Provider or the Subordination Agent in connection with any transaction contemplated by the Operative Documents;
(6) [Intentionally Omitted]
(7) to any Tax that in the nature of an intangible or similar tax upon or with respect to the value or principal amount of the interest of any Tax Indemnitee in any of the Secured Certificates or the Pass Through Certificates;
(8) with respect to any Tax Indemnitee to any Tax imposed on or with respect to a transferee (or subsequent transferee) of an original Tax Indemnitee to the extent such Taxes would not have been required to be withheld or imposed on or with respect to such original Tax Indemnitee;
(9) to any Tax which would not have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lesseebut for an Indenture Trustee's Lien;
(210) Taxes that to any Tax to the extent such Tax would not have been imposed but for a Lessor's Lien;
present or future connection between the Tax Indemnitee or any Affiliate thereof and the jurisdiction imposing such Taxes (3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraftincluding, without limitation, the Trust EstateTax Indemnitee or an Affiliate thereof being or having been a citizen or resident thereof, or being or having been organized, present or engaged in a trade or business therein, or having or having had, a permanent establishment or fixed place of business therein, or engaging, or having engaged, in one or more transactions or activities therein unrelated to the transactions contemplated by the Operative Documents), or any interest therein, or other than a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence connection arising solely by reason of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(911) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes any Tax imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the a Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax Indemnitee to the extent imposed as a result of the failure of the Owner Participant to timely and properly file any return, unless such failure is caused by LesseeTax Indemnitee's failure to timely provide information comply with any certification, EXHIBIT K-2 information, documentation, reporting or similar procedure that is required by law, treaty or regulation as a condition to be provided under the allowance of any reduction in the rate of such Tax or any exemption or other relief from such Tax;
(12) to any Tax on a Tax Indemnitee to the extent arising out of, or caused by, or to the extent such Tax would not have been incurred but for, (A) the willful misconduct or gross negligence of such Tax Indemnitee or any of its Affiliates or (B) the inaccuracy or breach of any representation, warranty, covenant or agreement by such Tax Indemnitee or any of its Affiliates in any Operative DocumentsDocument;
(13) Taxes to any Tax on a Tax Indemnitee to the extent consisting of interest, penalties, fines or additions to Tax resulting from the negligence or willful misconduct of such Tax Indemnitee or any of its Affiliates in connection with the filing of, or failure to file, any tax return, the payment of, or failure to pay any Tax, or the conduct of any proceeding in respect thereof unless resulting from the failure by the Owner to perform its obligations under Section 7(b)(v) hereof;
(14) to any Tax imposed on any Tax Indemnitee under Section 4975 of the Internal Revenue Code or under subtitle B of ERISA or equivalent state law as a result of the use by such Tax Indemnitee or any of its Affiliates of the assets of an "employee benefit plan" (as defined in Section 3(3) of ERISA) to purchase a Secured Certificate or otherwise acquire any interest in any Secured Certificate;
(15) to any Tax that would not have been imposed but for an Indemnitee's breach of amendment to any covenant or the inaccuracy of any representation or warranty of such Indemnitee in any of the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of Document to which the Owner Participant's interest is not a party, which amendment was not requested or consented to by the Owner in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Noteswriting;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed by section 4975 in the case of the Code Policy Provider, to any premium or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliatessimilar Tax.
Appears in 1 contract
Samples: Participation Agreement (Northwest Airlines Inc /Mn)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i29(b)(i) shall not apply toapply:
(1) Taxes on, based on, measured by or with respect to the gross or net income, gross or net receipts, minimum or alternative taxes, tax preferences, capital, net worth, franchise or conduct of business any Income Tax (but not excluding sales, use, license, rental, ad valorem, value added tax (to the extent that such value added tax is not imposed as a substitute for an income taxdefined in Section 29(d) or property taxes) (ahereof) imposed on Lessor by the United States or by any state or local government or taxing authority or (b) imposed by any foreign government or taxing authority except where such Tax is imposed by reason of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee in such jurisdiction and exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of LesseeFederal government;
(2) Taxes that would not have been imposed but for a Lessor's Lien;
(3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraft, the Trust Estate, or the Operative Documents, or any interest therein, or a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(9) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax to the extent imposed as a result of a voluntary transfer or disposition by a Tax Indemnitee including, without limitation, a transfer or disposition of all or any portion of its equitable or legal ownership or leasehold interest in the failure of the Owner Participant to timely and properly file Engine, any returnPart or any Operative Document or Lessee Document, or any interest in such Tax Indemnitee, unless such failure transfer or disposition shall occur (A) during the continuance of a Default or Event of Default under this Lease or the Aircraft Lease with respect to any Aircraft or Airframe on which the Engine is caused by Lessee's failure then installed, or upon the termination or cancellation of the Airline Services Agreement or (B) in connection with the termination of the Lease or the action or direction of Lessee pursuant to timely provide information required to be provided under the Operative DocumentsSections 2, 5 ,6, 7, 8, 9 or 10 of this Lease;
(133) [reserved];
(4) to Taxes that to the extent imposed with respect to events occurring or matters arising, after the earlier of (x) the return of physical possession of the Engine to Lessor or its designee pursuant to the terms of this Lease or (y) the commencement of storage pursuant to Section 5(c) hereof; provided the exclusion set forth in this subparagraph (4) shall not apply to Taxes to the extent such Taxes relate to events, periods or matters occurring or arising prior to or simultaneously with such time or arise as a result of amounts payable by Lessee after such time or occur during the continuance of a Default or Event of Default under this Lease;
(5) to any Tax to the extent arising out of or caused by, or to the extent such Tax would not have been imposed incurred but for an Indemnitee's for, (A) the willful misconduct of such Tax Indemnitee or (B) the breach of any representation, covenant or the inaccuracy of any representation or warranty of agreement by such Tax Indemnitee in any of the Operative Documents;Document; or
(146) Taxes [reserved]. Nothing contained in Section 29(b)(ii) hereof shall apply to any Tax in the nature of an intangible a sales, use, value added, goods and services, transfer, recording, excise or similar registration Tax imposed upon, on or with respect to the Engine or any Part or interest therein or title thereto, incurred prior to, (a) or on the value date of, the execution and delivery of this Lease. For the Owner Participant's interest in avoidance of doubt, and notwithstanding any provision herein to the Trust contrary, Lessee agrees to indemnify Lessor on an After-Tax Basis against, and agrees to hold Lessor harmless from, any and all payments, indemnities and gross-ups required to be made by Lessor to or for the Indenture Trust or (b) the value or the principal amount benefit of any Lender's interest in other Person pursuant to any of agreement between Lessor and such other Person relating to the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed by section 4975 of the Code Engine or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and AffiliatesPart thereof.
Appears in 1 contract
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i) 8.01 ------------------------------------- shall not apply to:
(1a) Taxes on, any Tax (i) based on, or measured by or with respect to by, the gross or net income, gross or net receipts, capital or net worth of any Indemnified Person or (ii) in the nature of a minimum tax or alternative taxes, a tax preferences, capital, net worth, franchise on or conduct measured by items of business tax preference (but not excluding in each case other than in the nature of sales, use, license, rental, ad valorem, value added tax (to or rental taxes); provided, however, that the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) provisions of this paragraph (a) imposed by the United States or by shall -------- ------ not apply to any state or local government or taxing authority or Tax required to be taken into account in making any payment on an "After-Tax Basis";
(b) imposed any Tax which is based on, or measured by, the fees or other compensation received by any foreign government or taxing authority except where such Tax is imposed by reason of the use, location, registration, subleasing, leasing or operation of Owner Trustee for acting as trustee under the Aircraft or the presence or activities of Lessee in such jurisdiction and exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of LesseeTrust Agreement;
(2c) Taxes that would not have been imposed but for a Lessor's Lien;
(3) Taxes resulting from a upon any voluntary or involuntary transfer by an Indemnified Person of any interest in the Owner Participant of the Aircraft, the Trust Estate, or the Operative DocumentsEquipment, or any interest thereinin an Indemnified Person, or a any interest arising under the Basic Agreements, other than (A) as expressly contemplated by the Lease, this Agreement or any other Basic Agreement (including any such disposition arising from the exercise of remedies or in connection with an Event of Loss or the exercise by the Lessee of any purchase option under the Lease, but excluding any transfer relating pursuant to bankruptcy Article X hereof), or similar proceedings involving the Owner Participant(B) while an Event of Default shall have occurred and be continuing;
(4d) Taxes resulting from any Tax that is imposed on any Indemnified Person as a result of such Indemnified Person's gross negligence or wilful misconduct (other than gross negligence or wilful misconduct imputed to such Indemnified Person solely by reason of its interest in the willful misconduct or negligence of the IndemniteesEquipment);
(5e) Taxes imposed with respect any interest, penalties or additions to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority tax resulting from failure of any jurisdiction Indemnified Person to file a return that would have been imposed on the Indemnitee for activities or property in is proper and timely, unless such jurisdiction unrelated to failure (i) results from the transactions contemplated by the Operative Documents;
Basic Agreements in circumstances where the Lessee did not give timely notice to such Indemnified Person of such filing requirement that would have permitted a timely filing of such (9ii) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax to the extent imposed as a result of results from the failure of the Owner Participant Lessee to timely supply information in its possession that was requested by such Indemnified Person and properly file any return, unless such failure is caused by Lessee's failure to timely provide information required to be provided under the Operative Documentsnot in its possession;
(13f) Taxes that would not have been imposed but for an Indemnitee's breach of any covenant Tax related to the Equipment, ground leasehold estate, support facilities and support services, including without limitation, all services and materials provided by the Lessee under the Ground Lease, arising from any act, event, ownership position or omission occurring after the inaccuracy of any representation or warranty of such Indemnitee in any of the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign personSeparation Date; and
(16g) Taxes imposed by section 4975 any Tax which is being contested in accordance with the provisions of Section 8.04 of this Agreement during the Code or any successor provision thereto. References to pendency of such contest so long as the Owner Participant Trustee shall include be receiving all amounts of Rent when payable without reduction by reason of such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and AffiliatesTax.
Appears in 1 contract
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i29(b)(i) shall not apply toapply:
(1) Taxes onwith respect to any Equity Tax Indemnitee and Sublessor, based onto any Income Tax (as defined in Section 29(d) hereof) imposed on such Tax Indemnitee by the United States Federal government, measured by provided, however, that notwithstanding the foregoing, Sublessee will indemnify and hold harmless each Equity Tax Indemnitee and Sublessor for any withholding taxes imposed on or with respect to the gross or net incomepayment of principal, gross or net receiptsinterest, minimum or alternative taxes, Make-Whole Amount and the Sublessor with respect to any withholding tax preferences, capital, net worth, franchise or conduct of business (but not excluding sales, use, license, rental, ad valorem, value added tax (to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) imposed by the United States or by any state or local government or taxing authority or (b) imposed by any foreign government or taxing authority except where such Tax is imposed by reason of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee in such jurisdiction and exceeds the Tax that would have been imposed on any rent payable by Sublessor under the Indemnitee regardless of the useHead Lease, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lesseeincluding interest and penalties thereon;
(2) Taxes that would not have been imposed but for a Lessor's Lien;
(3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraft, the Trust Estate, or the Operative Documents, or any interest therein, or a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(9) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax to the extent imposed as a result of a voluntary transfer or disposition by a Tax Indemnitee including, without limitation, the failure revocation of the Owner Participant to timely and properly file trust created by the Trust Agreement or a transfer or disposition of all or any returnportion of its respective equitable or legal ownership or leasehold interest in the Aircraft, any Engine, any Part, the Trust Estate, or any Operative Document or Sublessee Document or any interest in such Tax Indemnitee, unless such failure is caused transfer or disposition shall occur (A) during the continuance of a Default or Event of Default under the Lease or this Sublease or upon the termination or cancellation of the Airline Services Agreement, (B) in connection with the termination of the Head Lease or Sublease, as the case may be, or the action or direction of Sublessee pursuant to Sections 2, 5 ,6, 7, 8, 9, 10 or 19 of this Sublease or of Sublessor pursuant to Sections 2, 5, 6, 7, 8, 9, 10 or 19 of the Head Lease, as the case may be, or (C) in connection with the substitution or replacement of the Aircraft, any Engine or Part pursuant to Section 10 of the Head Lease;
(3) to Taxes to the extent based on or measured by Lessee's failure to timely provide information required to be provided under any fees received by the Owner Trustee in connection with any transaction contemplated by the Operative Documents;
(134) to Taxes that to the extent imposed with respect to events occurring or matters arising, after the earlier of (x) the return of physical possession of the Aircraft to Sublessor or its designee pursuant to the terms of this Sublease or (y) the commencement of storage pursuant to Section 5(d) hereof; provided the exclusion set forth in this subparagraph (4) shall not apply to Taxes to the extent such Taxes relate to events, periods or matters occurring or arising prior to or simultaneously with such time or arise as a result of amounts payable by Sublessee after such time, or occur during the continuance of a Default or Event of Default under this Sublease;
(5) to any Tax to the extent arising out of or caused by, or to the extent such Tax would not have been imposed incurred but for an Indemnitee's for, (A) the willful misconduct of such Tax Indemnitee or (B) the breach of any representation, covenant or the inaccuracy of any representation or warranty of agreement by such Tax Indemnitee in any of the Operative DocumentsDocument;
(146) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect toto any Tax Indemnitee (other than Sublessor and its Affiliates, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assignsassigns and their respective directors, officers, directors, servants, employees, agents and Affiliatesservants) to any Tax to the extent such Tax Indemnitee is not entitled to indemnification pursuant to Section 7(b) of the Participation Agreement. Nothing contained in Section 29(b)(ii) hereof shall apply to any Tax in the nature of a sales, use, value added, goods and services, transfer, recording, excise or registration Tax imposed on or with respect to the Aircraft, any Engine or any Part or interest therein or title thereto incurred prior to, or on the date of, the execution and delivery of this Sublease. For the avoidance of doubt, and notwithstanding any provision herein to the contrary, Sublessee agrees to indemnify Sublessor on an After-Tax Basis against, and agrees to hold Sublessor harmless from, any and all payments, indemnities and gross-ups required to be made by Sublessor pursuant to Section 7 of the Participation Agreement.
Appears in 1 contract
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i------------------------------------- 13.2(a) shall not apply to, and the Charterer shall have no liability to a Tax Indemnitee under Section 13.2(a) with respect to:
(1) Taxes (other than such Taxes that are sales, use, rental, property or ad valorem Taxes) imposed on, based onon or measured by, measured by or with respect to the gross or net income, gross or net -- ------- receipts, minimum or alternative taxes, tax preferences, capital, net worth, franchise excess profits or conduct of business (but not excluding sales, use, license, rental, ad valorem, value added tax (to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) which are imposed by the United States federal, or by any state or local government therein, or any foreign or international taxing authority authority, including any franchise or privilege Taxes, minimum Taxes, value added Taxes imposed in lieu of net income Taxes, withholding Taxes (b) imposed other than withholding Taxes resulting from either the Owner Trust or Owner Participant not being a United States person for United States federal income tax purposes), and any Taxes on or measured by any foreign government or taxing authority except where such Tax is imposed by reason items of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee in such jurisdiction and exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lesseetax preference;
(2) Taxes, including, without limitation, sales and transfer Taxes, that result from any voluntary or involuntary transfer by such Tax Indemnitee of any interest in the Owner Participant, the Vessel Interest, the Trust Estate or any portion of any of the foregoing, or any interest arising out of the Operative Documents or Pass Through Trust Agreement or the Secured Note or Pass Through Certificate; provided, however, that this Section 13.2(b)(2) -------- ------- shall not apply to any transfer that (A) relates to the exercise of remedies in connection with a Charter Event of Default; (B) results from a Event of Default or from an Event of Loss; or (C) results from the replacement, removal or substitution of all or any part of the Vessel Interest;
(3) Taxes imposed by any jurisdiction that would not have been imposed on a Tax Indemnitee but for a Lessor's Lien;
(3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraft, the Trust Estate, or the Operative Documents, or any interest therein, or a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for its activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents or Pass Through Trust Agreement;
(4) Taxes that result from (A) the willful misconduct or gross negligence of such Tax Indemnitee, (B) the breach or inaccuracy by such Tax Indemnitee of any of its representations, covenants and obligations under the Operative Documents, (C) the failure of a Tax Indemnitee to file tax returns properly and on a timely basis or to claim a deduction or credit to which it is entitled (provided that such Tax Indemnitee shall not be obligated to claim a deduction or credit if it requests but fails to receive an opinion of Xxxxx Xxxxxxxxxx or other independent counsel selected by such Tax Indemnitee and reasonably acceptable to the Charterer that it is entitled to claim such deduction or credit), or (D) the failure of a Tax Indemnitee to comply with certification, reporting or other similar requirements of the jurisdiction imposing such Tax; provided, however, that the exclusions set forth in -------- ------- subclauses (C) and (D) shall not apply if any such failure is the result of the failure of the Charterer to (I) perform its obligations under Section 13.2(c), or to perform its duties and responsibilities pursuant to any of the Operative Documents, (II) timely and properly notify such Tax Indemnitee of the applicable filing, certification, reporting or other similar requirements, or (III) provide reasonable assistance in complying with any such requirement;
(5) Taxes which are attributable to any period or circumstance occurring after the expiration or earlier termination of the Charter, except to the extent attributable to (A) a failure of the Charterer to fully discharge its obligations under the Charter, (B) Taxes imposed on or with respect to any payments that are due after the expiration or earlier termination of the Charter and which are attributable to a period or circumstance occurring prior to such expiration or earlier termination or (C) Taxes that relate to events, matters or circumstances occurring prior to such expiration or earlier termination;
(6) Taxes which are based on or measured by fees or compensation received by the Owner Trustee for acting as Owner Trustee under the Trust Agreement, the Indenture Trustee for acting as Indenture Trustee under the Indenture or the Pass Through Trustee for acting as Pass Through Trustee under the Pass Through Trust Agreement;
(7) other than with respect to the Owner Participant, Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States person for United States federal income tax purposes;
(8) any Tax that is being contested in accordance with the provisions of Section 13.2(e) during the pendency of such contest, but only for so long as such contest is continuing in accordance with such Section and payment is not otherwise required pursuant to such Section;
(9) Taxes being contested pursuant as to which any Tax Indemnitee fails to comply with its contest obligations under Section 13.2(e) in any material respect, but only to the extent such failure materially impairs the Charterer's contest provisions contained in rights with respect to the Taxes that are the subject of the contest and is not due to any act or failure to act by the Charterer; provided, however, that this Section 6(b)(iv)-------- ------- 13.2(b)(9) shall not constitute a waiver by the Charterer of its rights, if any, to assert and xxx upon any claims it may have against the Tax Indemnitee by reason of its failure to comply with its obligations under Section 13.2(e) of this Agreement;
(10) Taxes imposed on as a result of the Owner Trustee trust described in the Trust Agreement or the Owner Participant based onPass Through Trust not being treated as a grantor trust or other conduit entity for federal, measured by state or imposed with respect to any fees, commissions or compensation received by itlocal tax purposes;
(11) any Taxes with respect to a transferee or subsequent transferee to the extent of the excess of such Taxes over the amount of the Taxes that would have been imposed had there not been a transfer by the initial Tax Indemnitee after the Closing Date of (i) an interest in the Owner Participant, the Vessel Interest, or of a beneficial interest in the Trust Estate or any portion of any of the foregoing, or (ii) any interest arising under any Operative Document or Pass Through Trust Agreement or any Secured Note or Pass Through Certificate;
(12) Taxes which have been included in Owner's Cost;
(13) any Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 or ERISA or any comparable laws of any governmental authority, engaged in by any Tax Indemnitee other than, in the case of the Owner Participant, the making and holding of its investment in the Interest or the taking of any action at the request or direction of the Charterer;
(14) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity AgreementTrust resulting from a Lessor's Lien;
(1215) Interest, penalties and additions Taxes resulting from an amendment to an Operative Document which is not consented to by the Charterer in writing; or
(16) any Tax in the nature of an intangible tax or similar tax upon or with respect to the extent value of the interest of the Indenture Estate or a Certificateholder, as the case may be, in any of the Secured Note or Certificate imposed by any government or taxing authority. Notwithstanding anything contained herein or any other Operative Document to the contrary, the Charterer acknowledges and agrees to indemnify and hold harmless the Owner Participant and Owner Trust 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 Loan Participant as an indemnified Tax for purposes of this Section 13.2, unless such withholding is due to (i) the Owner Trust not being a United States person for United States federal income tax purposes, (ii) a failure of the Owner Participant or the Owner Trustee to comply with any provision of the Operative Documents (including Section 13.2(b)(4)) except if such failure is the result of the failure of the Charterer to perform its obligations under Section 13.2(c) or (iii) the breach or inaccuracy of any representations, covenants or obligations by the Owner Participant to timely and properly file any return, unless such failure is caused by Lessee's failure to timely provide information required to be provided or Owner Trust under the Operative Documents;
. If a Tax (13including any related interest, fines, penalties or addition to Tax) Taxes that would not have been imposed but for an Indemnitee's breach results from a failure of any covenant Tax Indemnitee to comply with its obligations under the Operative Documents or the inaccuracy Pass Through Trust Agreement and the Charterer is required to indemnify another Tax Indemnitee against the imposition of such Tax, then the Tax Indemnitee whose failure resulted in the imposition of such Tax shall, within 30 days after receipt of notice of payment of the Tax and appropriate payment documentation with respect thereto, pay to the Charterer an amount which equals the amount paid by the Charterer with respect to or as a result of such Tax (including any expenses or other charges borne by the Charterer) increased by (but subject to the proviso in Section 13.2(f)) the amount of tax savings to such Tax Indemnitee attributable to the making of such payment to the Charterer. The provisions of this Section 13.2(b) shall not apply to any Taxes imposed in respect of the receipt or accrual of any representation or warranty of such Indemnitee in any of indemnity payment made by the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments Charterer pursuant to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliatesthis Section 13.2 hereof.
Appears in 1 contract
Samples: Participation Agreement (Mobil Corp)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i7.4(a) shall ------------------------------------- not apply to:
(1i) Taxes on, based on, or measured by or with respect to net income of the gross Lessor, the Agent and the Lenders (including minimum Taxes, capital gains Taxes, Taxes on or net income, gross or net receipts, minimum measured by items of tax preference or alternative taxesminimum Taxes) other than (A) any such Taxes that are, tax preferencesor are in the nature of, capital, net worth, franchise or conduct of business (but not excluding sales, use, license, rental, ad valorem, value added tax (to the extent that such value added tax is not imposed as a substitute for an income tax) rental or property taxesTaxes, and (B) (a) withholding Taxes imposed by the United States or by any state or local government or taxing authority or in which the Leased Property is located (bi) imposed by any foreign government or taxing authority except where such Tax is on payments with respect to the Notes, to the extent imposed by reason of a change in Applicable Law occurring after the usedate on which the holder of such Note became the holder of such Note or (ii) on Rent, location, registration, subleasing, leasing or operation to the extent the net payment of Rent after deduction of such withholding Taxes would be less than amounts currently payable with respect to the Aircraft or the presence or activities of Lessee in Funded Amounts provided that this clause (i) shall not prevent a payment from being made on an After-Tax Basis if such jurisdiction and exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lesseepayment is otherwise required to be so made;
(2ii) Taxes on, based on, or in the nature of or measured by Taxes on doing business, business privilege, franchise, capital, capital stock, net worth, or mercantile license or similar taxes other than any Taxes that are or are in the nature of sales, use, rental, license or property Taxes relating to the Leased Property provided that this clause (ii) shall not prevent a payment from being made on an After-Tax Basis if such payment is otherwise required to be so made;
(iii) Taxes that would not have been imposed but are based on, or measured by, the fees or other compensation received by a Person acting as Agent (in its individual capacities) or any Affiliate of any thereof for a Lessor's Lienacting as trustee under the Loan Agreement;
(3iv) Taxes resulting that result from a voluntary transfer by any act, event or omission, or are attributable to any period of time, that occurs after the Owner Participant earlier of (A) the expiration of the AircraftLease Term with respect to the Leased Property and, if the Trust EstateLeased Property is required to be returned to the Lessor in accordance with the Lease, such return and (B) the discharge in full of the Lessee's obligations to pay the Lease Balance, or any amount determined by reference thereto, with respect to the Leased Property and all other amounts due under the Lease, unless such Taxes relate to acts, events or matters occurring prior to the earlier of such times or are imposed on or with respect to any payments due under the Operative Documents after such expiration or discharge;
(v) Taxes imposed on a Tax Indemnitee that result from any voluntary sale, assignment, transfer or other disposition or bankruptcy by such Tax Indemnitee or any related Tax Indemnitee of any interest in any Leased Property or any part thereof, or any interest therein or any interest or obligation arising under the Operative Documents, or from any sale, assignment, transfer or other disposition of any interest thereinin such Tax Indemnitee or any related Tax Indemnitee, it being understood that each of the following shall not be considered a voluntary sale: (A) any assignment, sublease, substitution, replacement or removal of any of the Leased Property by the Lessee, (B) any sale or transfer resulting from the exercise by any Lessee of any termination option, any purchase option or sale option, (C) any sale or transfer while an Event of Default shall have occurred and be continuing under the Lease, (D) a Casualty or Condemnation affecting the Leased Property or any part thereof, and (E) any sale or transfer relating to bankruptcy or similar proceedings involving resulting from the Owner ParticipantLessor's exercise of remedies under the Lease;
(4vi) Taxes resulting from any Tax which is being contested in accordance with the willful misconduct or negligence provisions of Section 7.4(c), during the Indemniteespendency of such -------------- contest;
(5vii) Taxes any Tax that is imposed on a Tax Indemnitee as a result of such Tax Indemnitee's gross negligence or willful misconduct (other than gross negligence or willful misconduct imputed to such Tax Indemnitee solely by reason of its interest in the Leased Property);
(viii) any Tax that results from a Tax Indemnitee engaging, with respect to any period after the expiration of the Lease or the earlier discharge Leased Property, in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated other than those permitted by the Operative Documents;
(9ix) Taxes being contested pursuant to the contest provisions contained extent any interest, penalties or additions to tax result in Section 6(b)(iv)whole or in part from the failure of a Tax Indemnitee to file a return or pay a Tax that it is required to file or pay in a proper and timely manner, unless such failure (A) results from the transactions contemplated by the Operative Documents in circumstances where Lessee did not give timely notice to such Tax Indemnitee of such filing or payment requirement that would have permitted a proper and timely filing of such return or payment of such Tax, as the case may be, or (B) results from the failure of the Lessee to supply information necessary for the proper and timely filing of such return or payment of such Tax, as the case may be, that was not in the possession of such Tax Indemnitee;
(10x) Taxes imposed on resulting from the Owner Trustee or the Owner Participant based on, measured by or imposed failure of a Tax Indemnitee to comply with respect to any fees, commissions or compensation received by it;
(11subsection 7.5(e) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax to the extent imposed other than as a result of the failure of the Owner Participant to timely an ----------------- increased cost described in subsection 7.5(b); and properly file any return, unless such failure is caused by Lessee's failure to timely provide information required to be provided under the Operative Documents;-----------------
(13xi) as to Lessor, any Tax that results from the breach by the Lessor of its representation and warranty made in Section ------- 4.3(g) or as to any Lender the breach of such Lender of its ------ representation and warranty made in Section 4.4(b). -------------- Notwithstanding the foregoing, the exclusions provided for in clauses (i), (ii) and (v) of this Subsection 7.4(b) shall not apply (but the other exclusions shall apply) to any Taxes or any increase in Taxes imposed on any Tax Indemnitee net of any decrease in Taxes realized by such Tax Indemnitee to the extent that any such Tax increase or decrease would not have been imposed but for occurred if on the date of each Advance the Lessor and the Lenders had advanced funds directly to the Lessee in the form of a loan by such Lessor or Lender secured by the Leased Property in an Indemnitee's breach of any covenant or amount equal to the inaccuracy of any representation or warranty amounts funded by the Lessor and the Lenders on each such date and a principal balance at the maturity of such Indemnitee loan in any an amount equal to the Funded Amounts at the end of the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and AffiliatesLease Term.
Appears in 1 contract
Samples: Master Agreement (Jones Financial Companies Lp LLP)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i7.4(a) shall not ------------------------------------- -------------- apply to:
(1i) Taxes on, based on, or measured by or with respect to net income of the gross Lessor, the Agent and the Lenders (including minimum Taxes, capital gains Taxes, Taxes on or net income, gross or net receipts, minimum measured by items of tax preference or alternative taxesminimum Taxes) other than (A) any such Taxes that are, tax preferencesor are in the nature of, capital, net worth, franchise or conduct of business (but not excluding sales, use, license, rental, ad valorem, value added tax (to the extent that such value added tax is not imposed as a substitute for an income tax) rental or property taxesTaxes, and (B) (a) withholding Taxes imposed by the United States or by any state or local government or taxing authority or in which the Leased Property is located (bi) imposed by any foreign government or taxing authority except where such Tax is on payments with respect to the Notes, to the extent imposed by reason of a change in Applicable Law occurring after the usedate on which the holder of such Note became the holder of such Note or (ii) on Rent, location, registration, subleasing, leasing or operation to the extent the net payment of Rent after deduction of such withholding Taxes would be less than amounts currently payable with respect to the Aircraft or the presence or activities of Lessee in Funded Amounts provided that this clause (i) shall not
prevent a payment from being made on an After-Tax Basis if such jurisdiction and exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lesseepayment is otherwise required to be so made;
(2ii) Taxes on, based on, or in the nature of or measured by Taxes on doing business, business privilege, franchise, capital, capital stock, net worth, or mercantile license or similar taxes other than any Taxes that are or are in the nature of sales, use, rental, license or property Taxes relating to the Leased Property provided that this clause (ii) shall not prevent a payment from being made on an After-Tax Basis if such payment is otherwise required to be so made;
(iii) Taxes that would not have been imposed but are based on, or measured by, the fees or other compensation received by a Person acting as Agent (in its individual capacities) or any Affiliate of any thereof for a Lessor's Lienacting as trustee under the Loan Agreement;
(3iv) Taxes resulting that result from a voluntary transfer by any act, event or omission, or are attributable to any period of time, that occurs after the Owner Participant earlier of (A) the expiration of the AircraftLease Term with respect to the Leased Property and, if the Trust EstateLeased Property is required to be returned to the Lessor in accordance with the Lease, such return and (B) the discharge in full of the Lessee's obligations to pay the Lease Balance, or any amount determined by reference thereto, with respect to the Leased Property and all other amounts due under the Lease, unless such Taxes relate to acts, events or matters occurring prior to the earlier of such times or are imposed on or with respect to any payments due under the Operative Documents after such expiration or discharge;
(v) Taxes imposed on a Tax Indemnitee that result from any voluntary sale, assignment, transfer or other disposition or bankruptcy by such Tax Indemnitee or any related Tax Indemnitee of any interest in any Leased Property or any part thereof, or any interest therein or any interest or obligation arising under the Operative Documents, or from any sale, assignment, transfer or other disposition of any interest thereinin such Tax Indemnitee or any related Tax Indemnitee, it being understood that each of the following shall not be considered a voluntary sale: (A) any assignment, sublease, substitution, replacement or removal of any of the Leased Property by the Lessee, (B) any sale or transfer resulting from the exercise by any Lessee of any termination option, any purchase option or sale option, (C) any sale or transfer while an Event of Default shall have occurred and be continuing under the Lease, (D) a Casualty or Condemnation affecting the Leased Property or any part thereof, and (E) any sale or transfer relating to bankruptcy or similar proceedings involving resulting from the Owner ParticipantLessor's exercise of remedies under the Lease;
(4vi) Taxes resulting from any Tax which is being contested in accordance with the provisions of Section 7.4(c), during the pendency of such contest; --------------
(vii) any Tax that is imposed on a Tax Indemnitee as a result of such Tax Indemnitee's gross negligence or willful misconduct (other than gross negligence or negligence willful misconduct imputed to such Tax Indemnitee solely by reason of its interest in the IndemniteesLeased Property);
(5viii) Taxes imposed any Tax that results from a Tax Indemnitee engaging, with respect to any period after the expiration of the Lease or the earlier discharge Leased Property, in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated other than those permitted by the Operative Documents;
(9ix) Taxes being contested pursuant to the contest provisions contained extent any interest, penalties or additions to tax result in Section 6(b)(iv)whole or in part from the failure of a Tax Indemnitee to file a return or pay a Tax that it is required to file or pay in a proper and timely manner, unless such failure (A) results from the transactions contemplated by the Operative Documents in circumstances where Lessee did not give timely notice to such Tax Indemnitee of such filing or payment requirement that would have permitted a proper and timely filing of such return or payment of such Tax, as the case may be, or (B) results from the failure of the Lessee to supply information necessary for the proper and timely filing of such return or payment of such Tax, as the case may be, that was not in the possession of such Tax Indemnitee;
(10x) Taxes imposed on resulting from the Owner Trustee or the Owner Participant based on, measured by or imposed failure of a Tax Indemnitee to comply with respect to any fees, commissions or compensation received by it;
(11subsection 7.5(e) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax to the extent imposed other than as a result of the failure of the Owner Participant to timely an ----------------- increased cost described in subsection 7.5(b); and properly file any return, unless such failure is caused by Lessee's failure to timely provide information required to be provided under the Operative Documents;-----------------
(13xi) as to Lessor, any Tax that results from the breach by the Lessor of its representation and warranty made in Section 4.3(g) or -------------- as to any Lender the breach of such Lender of its representation and warranty made in Section 4.4(b). -------------- Notwithstanding the foregoing, the exclusions provided for in clauses (i), (ii) and (v) of this Subsection 7.4(b) shall not apply (but the other exclusions shall apply) to any Taxes or any increase in Taxes imposed on any Tax Indemnitee net of any decrease in Taxes realized by such Tax Indemnitee to the extent that any such Tax increase or decrease would not have been imposed but for occurred if on the date of each Advance the Lessor and the Lenders had advanced funds directly to the Lessee in the form of a loan by such Lessor or Lender secured by the Leased Property in an Indemnitee's breach of any covenant or amount equal to the inaccuracy of any representation or warranty amounts funded by the Lessor and the Lenders on each such date and a principal balance at the maturity of such Indemnitee loan in any an amount equal to the Funded Amounts at the end of the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and AffiliatesLease Term.
Appears in 1 contract
Samples: Master Agreement (Jones Financial Companies Lp LLP)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(iSECTION 3(i)(A) shall not apply toto and Lessee shall have no liability hereunder for:
(1) Taxes (other than amounts necessary to make payments on an After-Tax Basis) on, based on, measured by or with respect to the gross or net income, gross or net receipts, including capital gains taxes, minimum or alternative taxes, tax preferences, capitalexcess profits taxes, capital taxes, accumulated earnings taxes, branch profits taxes, personal holding company taxes, taxes applicable to passive foreign investment companies, successor taxes, estate taxes, net worth, franchise or conduct of business (but not excluding sales, use, excise, license, rental, ad valorem, non-recoverable value added tax (to the extent that such ad valorem or value added tax is not imposed as a substitute for an income tax that is not subject to indemnification hereunder and, if imposed as a substitute for such an income tax, to the extent such ad valorem or value added tax exceeds such income tax that it replaces) or property taxes and other similar taxes) (a) and any withholding taxes on, or measured by, gross or net income or receipts imposed on Lessor by the United States or by any state or local government or taxing authority in the United States or (b) imposed by any foreign government or taxing authority except where to the extent such Tax is (a) results from, or would not have been imposed by reason of but for (x) the use, location, registrationoperation, subleasing, leasing registration or operation use of the Aircraft or any Part in such jurisdiction, (y) the identity, location, place of business, activities or presence of Lessee, any Permitted Sublessee, user or activities person in possession of Lessee the Aircraft or any Part or any Affiliate of the foregoing (each, a "LESSEE PERSON") in such jurisdiction (including the execution and delivery by such Person of any Operative Document in such jurisdiction), or (z) the making of any payment under the Operative Documents by, or on behalf of, Lessee to Lessor in or from such jurisdiction, and (b) exceeds the Tax that would have been imposed by such jurisdiction on the Indemnitee regardless Lessor in the absence of the usethose activities described in CLAUSES (x), location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee(y) AND (z) herein;
(2) Taxes imposed on the Lessor that would not have been imposed but for a Lessor's Lien;
(3) Taxes imposed on Lessor resulting from a voluntary sale, assignment, transfer or other disposition by the Owner Participant Lessor of the Aircraft, the Trust EstateAirframe, an Engine or any Part, the Operative Documents, Documents or any interest thereinin the Rent unless such transfer or other disposition (i) is made in connection with the exercise of any remedies of Lessor in accordance with and pursuant to SECTION 15 of the Lease when an Event of Default has occurred and is continuing, (ii) arises in connection with (A) an Event of Loss, (B) the return of the Aircraft upon termination of the Lease, (C) the purchase of the Aircraft by Lessee pursuant to SECTION 19(b) of the Lease, (D) the substitution of any Replacement Airframe pursuant to SECTION 10(a) of the Lease or (E) a termination of the Lease under SECTION 9 of the Lease, (iii) results from (A) the maintenance of the Aircraft during the Basic Term (including the replacement and substitution of parts and modifications and improvements to the Aircraft) or (B) any Lease or assignment of Lessee's or any Permitted Sublessee's rights during the Basic Term or (iv) is made at Lessee's request or direction;
(4) Taxes imposed on Lessor resulting from a transfer of the Lessor's interest in the Aircraft, Airframe, an Engine or any Part arising out of or relating to bankruptcy or similar proceedings involving in which Lessor is the Owner Participant;
(4) Taxes resulting debtor, or any foreclosure by a creditor of Lessor, unless, in each case, such sale, assignment, transfer or other disposition results from the willful misconduct a transfer or negligence disposition made pursuant to an exercise of the Indemniteesremedies following an Event of Default;
(5) Taxes imposed with respect to any period after on the expiration Lessor resulting from the willful misconduct or gross negligence of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination ValueLessor;
(6) Taxes relating to the Lessee, Aircraft, the Airframe, an Engine or any Part for any period after (x) the expiration or early termination of the Lease in accordance with the terms of the Lease or (y) possession of the Aircraft, the Airframe, an Engine or any Part has been redelivered by Lessee to Lessor in accordance with the terms of the Lease (in each case as it relates to Taxes for the returned items) or placement of the Aircraft in storage at the request of the Lessor in accordance with the terms of the Lease, except to the extent that Taxes are incurred in connection with the exercise of any remedies of Lessor in accordance with and pursuant to SECTION 15 of the Lease when an Event of Default has occurred and is continuing and to the extent such Taxes relate to events, acts or omissions occurring or matters arising prior to or simultaneously with the time of the occurrence of the earlier of (x) or (y), and until Lessee has satisfied in full its obligations under the Lease;
(7) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) of Lessor to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
Lessor; PROVIDED, HOWEVER, the exclusion provided in this CLAUSE (7) Taxes which have been included shall not apply to (i) transferees that acquired their interest in connection with the Lessor's Costexercise of remedies following an Event of Default, and (ii) "gross-up" amounts necessary to make payments on an After-Tax Basis, as required under the Operative Documents;
(8) Taxes imposed on Lessor by a government or taxing authority of any jurisdiction that to the extent such Taxes would not have been imposed on Lessor in the Indemnitee for absence of activities or property of such Lessor in such jurisdiction unrelated to the transactions contemplated by the Operative DocumentsLease;
(9) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(ivSECTION 3(i)(D) but only for so long as Lessee is complying with its obligations under SECTION 3(i)(D);
(10) Taxes imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect Lessor for which Lessee is obligated to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified indemnify Lessor under the Tax Indemnity Agreement;
(1211) Interest, penalties and additions to Tax imposed upon Lessor to the extent imposed as a result of the failure of the Owner Participant Lessor to timely and properly file any returnreturn required to be filed by Lessor, unless such failure is caused by Lessee's failure to timely provide information required to be provided under the Operative DocumentsDocuments (including pursuant to SECTION 3(i)(C) herein);
(12) Taxes imposed on Lessor by section 4975 of the Code or any successor provision thereto as a consequence of Lessor engaging in a "prohibited transaction" within the meaning of such provision; and
(13) Taxes imposed on Lessor that would not have been imposed but for an IndemniteeLessor's breach of any covenant or the inaccuracy of any representation or warranty of such Indemnitee Lessor in any of the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant Lessor shall include such PersonLessor's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliates.
Appears in 1 contract
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i29(b)(i) shall not apply toapply:
(1) Taxes onwith respect to any Equity Tax Indemnitee and Sublessor, based onto any Income Tax (as defined in Section 29(d) hereof) imposed on such Tax Indemnitee by the United States Federal government, measured by provided, however, that notwithstanding the foregoing, Sublessee will indemnify and hold harmless each Equity Tax Indemnitee and Sublessor for any withholding taxes imposed on or with respect to the gross payment of principal, interest, Make-Whole Amount or net income, gross or net receipts, minimum or alternative taxes, other premium on the Secured Certificates and the Sublessor with respect to any withholding tax preferences, capital, net worth, franchise or conduct of business (but not excluding sales, use, license, rental, ad valorem, value added tax (to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) imposed by the United States or by any state or local government or taxing authority or (b) imposed by any foreign government or taxing authority except where such Tax is imposed by reason of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee in such jurisdiction and exceeds the Tax that would have been imposed on any rent payable by Sublessor under the Indemnitee regardless of the useHead Lease, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lesseeincluding interest and penalties thereon;
(2) Taxes that would not have been imposed but for a Lessor's Lien;
(3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraft, the Trust Estate, or the Operative Documents, or any interest therein, or a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(9) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax to the extent imposed as a result of a voluntary transfer or disposition by a Tax Indemnitee including, without limitation, the failure revocation of the trust created by the Trust Agreement or a transfer or disposition of all or any portion of its respective equitable or legal ownership or leasehold interest in the Aircraft, any Engine, any Part, the Trust Estate, a Secured Certificate (including sales of participations therein), the Trust Indenture Estate or any Operative Document or Sublessee Document or any interest in such Tax Indemnitee, unless such transfer or disposition shall occur (A) during the continuance of a Default or Event of Default under the Lease or this Sublease or upon the termination or cancellation of the Airline Services Agreement, (B) in connection with the termination of the Head Lease or Sublease, as the case may be, or the action or direction of Sublessee pursuant to Sections 2, 5 ,6, 7, 8, 9, 10 or 19 of this Sublease or of Sublessor pursuant to Sections 2, 5, 6, 7, 8, 9, 10 or 19 of the Head Lease, as the case may be, (C) in connection with the substitution or replacement of the Aircraft, any Engine or Part pursuant to Section 10 of the Head Lease or (D) as a result of the assumption pursuant to Section 8(x) of the Participation Agreement by Sublessor of the obligations of the Owner Participant Trustee under the Trust Indenture and Secured Certificates;
(3) to timely and properly file Taxes to the extent based on or measured by any return, unless such failure is caused fees received by Lessee's failure to timely provide information required to be provided under the Owner Trustee or the Indenture Trustee in connection with any transaction contemplated by the Operative Documents;
(134) to Taxes that to the extent imposed with respect to events occurring or matters arising, after the earlier of (x) the return of physical possession of the Aircraft to Sublessor or its designee pursuant to the terms of this Sublease or (y) the commencement of storage pursuant to Section 5(d) hereof; provided the exclusion set forth in this subparagraph (4) shall not apply to Taxes to the extent such Taxes relate to events, periods or matters occurring or arising prior to or simultaneously with such time or arise as a result of amounts payable by Sublessee after such time or are imposed on a Loan Participant with respect to events occurring, or matters arising, prior to payment in full of the Secured Certificates, or occur during the continuance of a Default or Event of Default under this Sublease;
(5) to any Tax to the extent arising out of or caused by, or to the extent such Tax would not have been imposed incurred but for an Indemnitee's for, (A) the willful misconduct of such Tax Indemnitee or (B) the breach of any representation, covenant or the inaccuracy of any representation or warranty of agreement by such Tax Indemnitee in any of the Operative DocumentsDocument;
(146) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect toto any Tax Indemnitee (other than Sublessor and its Affiliates, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assignsassigns and their respective directors, officers, directors, servants, employees, agents and Affiliatesservants) to any Tax to the extent such Tax Indemnitee is not entitled to indemnification pursuant to Section 7(b) of the Participation Agreement. Nothing contained in Section 29(b)(ii) hereof shall apply to any Tax in the nature of a sales, use, value added, goods and services, transfer, recording, excise or registration Tax imposed on or with respect to the Aircraft, any Engine or any Part or interest therein or title thereto incurred prior to, or on the date of, the execution and delivery of this Sublease. For the avoidance of doubt, and notwithstanding any provision herein to the contrary, Sublessee agrees to indemnify Sublessor on an After-Tax Basis against, and agrees to hold Sublessor harmless from, any and all payments, indemnities and gross-ups required to be made by Sublessor pursuant to Section 7 of the Participation Agreement.
Appears in 1 contract
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i7(b)(i) shall not apply toapply:
(1) Taxes on, based on, measured by or with respect to any Tax Indemnitee to any Income Tax (as defined in Section 7(d) hereof) imposed by (A) the gross United States Federal government or net income(B) any U.S. state or local taxing jurisdiction;
(2) with respect to any Tax Indemnitee, gross to any Income Taxes imposed by any foreign or net receiptsinternational government, minimum jurisdiction or alternative taxes, tax preferences, capital, net worth, franchise taxing authority or conduct territory or possession of business (but not excluding sales, use, license, rental, ad valorem, value added tax (the United States except to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) imposed by Tax Indemnitee would be subject to such Income Tax if the United States or by any state or local government or taxing authority or (b) imposed by any foreign government or taxing authority except where sole connection between such Tax is imposed by reason of Indemnitee and the use, location, registration, subleasing, leasing or Taxing Authority had been the location and operation of the Aircraft or the presence or activities of Lessee the Owner or any lessee within such Taxing Authority;
(3) to any capital gains taxes, excess profits taxes, value added taxes, accumulated earnings taxes, personal holding company taxes, succession taxes or estate or similar taxes;
(4) to any Tax imposed as a result of a transfer or disposition by a Tax Indemnitee including, without limitation, a transfer or disposition of all or any portion of its respective equitable or legal ownership interest in a Secured Certificate (including sales of participations therein), the Collateral (as defined in the Trust Indenture) or any Operative Document or any interest in such jurisdiction and exceeds Tax Indemnitee;
(5) to any Tax based on or measured by any fees received by the Pass Through Trustee, the Indenture Trustee or any Agent in connection with any transaction contemplated by the Operative Documents;
(6) [Intentionally Omitted]
(7) to any Tax that in the nature of an intangible or similar tax upon or with respect to the value or principal amount of the interest of any Tax Indemnitee in any of the Secured Certificates;
(8) with respect to any Tax Indemnitee to any Tax imposed on or with respect to a transferee (or subsequent transferee) of an original Tax Indemnitee to the extent such Taxes would not have been required to be withheld or imposed on or with respect to such original Tax Indemnitee;
(9) to any Tax which would not have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lesseebut for an Indenture Trustee's Lien;
(210) Taxes that to any Tax to the extent such Tax would not have been imposed but for a Lessor's Lien;
present or future connection between the Tax Indemnitee or any Affiliate thereof and the jurisdiction imposing such Taxes (3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraftincluding, without limitation, the Trust EstateTax Indemnitee or an Affiliate thereof being or having been a citizen or resident thereof, or being or having been organized, present or engaged in a trade or business therein, or having or having had, a permanent establishment or fixed place of business therein, or engaging, or having engaged, in one or more transactions or activities therein unrelated to the transactions contemplated by the Operative Documents), or any interest therein, or other than a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence connection arising solely by reason of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(911) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes any Tax imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the a Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax Indemnitee to the extent imposed as a result of the failure of the Owner Participant to timely and properly file any return, unless such failure is caused by LesseeTax Indemnitee's failure to timely provide information comply with any certification, information, documentation, reporting or similar procedure that is required by law, treaty or regulation as a condition to be provided under the allowance of any reduction in the rate of such Tax or any exemption or other relief from such Tax;
(12) to any Tax on a Tax Indemnitee to the extent arising out of, or caused by, or to the extent such Tax would not have been incurred but for, (A) the willful misconduct or gross negligence of such Tax Indemnitee or any of its Affiliates or (B) the inaccuracy or breach of any representation, warranty, covenant or agreement by such Tax Indemnitee or any of its Affiliates in any Operative DocumentsDocument;
(13) Taxes that would not have been imposed but for an Indemnitee's breach to any Tax on a Tax Indemnitee to the extent consisting of interest, penalties, fines or additions to Tax resulting from the negligence or willful misconduct of such Tax Indemnitee or any of its Affiliates in connection with the filing of, or failure to file, any tax return, the payment of, or failure to pay any Tax, or the conduct of any covenant or proceeding in respect thereof unless resulting from the inaccuracy of any representation or warranty of such Indemnitee in any of failure by the Operative Documents;Owner to perform its obligations under Section 7(b)(v) hereof; or
(14) Taxes in to any excise tax imposed on any Tax Indemnitee under Section 4975 of the nature Internal Revenue Code as a result of the use by such Tax Indemnitee or any of its Affiliates of the assets of an intangible "employee benefit plan" (as defined in Section 3(3) of ERISA) to purchase a Secured Certificate or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of otherwise acquire any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and AffiliatesSecured Certificate.
Appears in 1 contract
Samples: Participation Agreement (Northwest Airlines Holdings Corp/Pred)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i7.4(a) ------------------------------------- -------------- shall not apply to:
(1i) Taxes on, based on, or measured by or with respect to net income of the gross or net incomeLessor, gross or net receiptsthe Agent and the Lenders (including, without limitation, minimum Taxes, capital gains Taxes, Taxes on or measured by items of tax preference or alternative taxesminimum Taxes) other than (A) any such Taxes that are, tax preferencesor are in the nature of, capital, net worth, franchise or conduct of business (but not excluding sales, use, license, rental, ad valorem, value added tax (to the extent that such value added tax is not imposed as a substitute for an income tax) rental or property taxesTaxes, and (B) (a) withholding Taxes imposed by the United States or by any state or local government or taxing authority or in which Leased Property is located (bi) imposed by any foreign government or taxing authority except where such Tax is on payments with respect to the Notes, to the extent imposed by reason of a change in Applicable Law occurring after the usedate on which the holder of such Note became the holder of such Note or (ii) on Rent, location, registration, subleasing, leasing or operation to the extent the net payment of Rent after deduction of such withholding Taxes would be less than amounts currently payable with respect to the Aircraft or the presence or activities of Lessee in such jurisdiction and exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of LesseeFunded Amounts;
(2ii) Taxes on, based on, or in the nature of or measured by Taxes on doing business, business privilege, franchise, capital, capital stock, net worth, or mercantile license or similar taxes other than (A) any increase in such Taxes imposed on such Tax Indemnitee by any state in which Leased Property is located, net of any decrease in such taxes realized by such Tax Indemnitee, to the extent that such tax increase would not have occurred if on each Funding Date the Lessor and the Lenders had advanced funds to the Lessee in the form of loans secured by the Leased Property in an amount equal to the Funded Amounts funded on such Funding Date, with debt service for such loans equal to the Basic Rent payable on each Payment Date and a principal balance at the maturity of such loans in a total amount equal to the Funded Amounts at the end of the Lease Term, or (B) any Taxes that are or are in the nature of sales, use, rental, license or property Taxes relating to any Leased Property;
(iii) Taxes that would not have been imposed but are based on, or measured by, the fees or other compensation received by a Person acting as Agent (in its individual capacities) or any Affiliate of any thereof for a Lessor's Lienacting as trustee under the Loan Agreement;
(3iv) Taxes resulting that result from a voluntary transfer by any act, event or omission, or are attributable to any period of time, that occurs after the Owner Participant earliest of (A) the expiration of the AircraftLease Term with respect to any Leased Property and, if such Leased Property is required to be returned to the Trust EstateLessor in accordance with the Lease, such return and (B) the discharge in full of the Lessee's obligations to pay the Lease Balance, or any amount determined by reference thereto, with respect to any Leased Property and all other amounts due under the Lease, unless such Taxes relate to acts, events or matters occurring prior to the earliest of such times or are imposed on or with respect to any payments due under the Operative Documents after such expiration or discharge;
(v) Taxes imposed on a Tax Indemnitee that result from any voluntary sale, assignment, transfer or other disposition or bankruptcy by such Tax Indemnitee or any related Tax Indemnitee of any interest in any Leased Property or any part thereof, or any interest therein or any interest or obligation arising under the Operative Documents, or from any sale, assignment, transfer or other disposition of any interest thereinin such Tax Indemnitee or any related Tax Indemnitee, it being understood that each of the following shall not be considered a voluntary sale: (A) any substitution, replacement or a removal of any of the Leased Property by the Lessee, (B) any sale or transfer relating to bankruptcy resulting from the exercise by the Lessee of any termination option, any purchase option or similar proceedings involving sale option, (C) any sale or transfer while an Event of Default shall have occurred and be continuing under the Owner ParticipantLease, and (D) any sale or transfer resulting from the Lessor's exercise of remedies under the Lease;
(4vi) Taxes resulting from any Tax which is being contested in accordance with the willful misconduct or negligence provisions of Section 7.4(c), during the Indemnitees-------------- pendency of such contest;
(5vii) Taxes any Tax that is imposed on a Tax Indemnitee as a result of such Tax Indemnitee's gross negligence or willful misconduct (other than gross negligence or willful misconduct imputed to such Tax Indemnitee solely by reason of its interest in any Leased Property);
(viii) any Tax that results from a Tax Indemnitee engaging, with respect to any period after the expiration of the Lease or the earlier discharge Leased Property, in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated other than those permitted by the Operative Documents;
(9ix) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax to the extent imposed any interest, penalties or additions to tax result in whole or in part from the failure of a Tax Indemnitee to file a return or pay a Tax that it is required to file or pay in a proper and timely manner, unless such failure (A) results from the transactions contemplated by the Operative Documents in circumstances where the Lessee did not give timely notice to such Tax Indemnitee (and such Tax Indemnitee otherwise had no actual knowledge) of such filing or payment requirement that would have permitted a proper and timely filing of such return or payment of such Tax, as a result of the case may be, or (B) results from the failure of the Owner Participant Lessee to supply information necessary for the proper and timely and properly file any return, unless such failure is caused by Lessee's failure to timely provide information required to be provided under the Operative Documents;
(13) Taxes that would not have been imposed but for an Indemnitee's breach of any covenant or the inaccuracy of any representation or warranty filing of such Indemnitee in any return or payment of such Tax, as the Operative Documents;
(14) Taxes case may be, that was not in the nature possession of an intangible or similar such Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign personIndemnitee; and
(16x) Taxes imposed any Tax that results from the breach by section 4975 the Lessor of its representation and warranty made in Section 4.2(b) or the Code or breach of any successor provision thereto. References to the Owner Participant shall include such Person's respective successors Lender of its representation and permitted assigns, officers, directors, servants, employees, agents and Affiliateswarranty made in Section 4.3(b).
Appears in 1 contract
Samples: Master Agreement (Ruby Tuesday Inc)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i7(b)(i) shall not apply toapply:
(1) Taxes on, based on, measured by or with respect to any Tax Indemnitee to any Income Tax (as defined in Section 7(d) hereof) imposed by (A) the gross United States Federal government or net income(B) any U.S. state or local taxing jurisdiction;
(2) with respect to any Tax Indemnitee, gross to any Income Taxes imposed by any foreign or net receiptsinternational government, minimum jurisdiction or alternative taxes, tax preferences, capital, net worth, franchise taxing authority or conduct territory or possession of business (but not excluding sales, use, license, rental, ad valorem, value added tax (the United States except to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) imposed by Tax Indemnitee would have been subject to such Income Tax if the United States or by any state or local government or taxing authority or (b) imposed by any foreign government or taxing authority except where sole connection between such Tax is imposed by reason of Indemnitee and the use, location, registration, subleasing, leasing or Taxing Authority had been the location and operation of the Aircraft or the presence or activities of Lessee or any sublessee within such Taxing Authority;
(3) to any capital gains taxes, excess profits taxes, value added taxes, branch profits tax, accumulated earnings taxes, personal holding company taxes, succession taxes or estate or similar taxes;
(4) to any Tax imposed as a result of a transfer or disposition by a Tax Indemnitee including, without limitation, the revocation of the trust created by the Trust Agreement or a transfer or disposition of all or any portion of its respective equitable or legal ownership interest in the Aircraft, the Trust Estate, a Secured Certificate (including sales of participations therein), the Trust Indenture Estate (as defined in the Trust Indenture) or any Operative Document or any interest in such jurisdiction and exceeds Tax Indemnitee, unless such transfer or disposition shall occur (A) pursuant to the exercise of remedies pursuant to Section 15 of the Lease or (B) in connection with the termination of the Lease pursuant to Sections 9, 10 or 19 thereof;
(5) to any Tax based on or measured by any fees received by the Owner Trustee, the Pass Through Trustee, the Indenture Trustee, the Policy Provider or any Agent in connection with any transaction contemplated by the Operative Documents;
(6) to any Tax imposed with respect to events occurring or matters arising after the earlier of (x) the expiration of the Term or the earlier termination of the Lease pursuant to Section 9 or 19 thereof, (y) the return of possession of the Aircraft to the Owner Trustee or its designee pursuant to the terms of the Lease or (z) the commencement of storage pursuant to Section 5(d) of the Lease PROVIDED that this exclusion shall not apply to Taxes to the extent such Taxes are imposed on or with respect to any events or matters occurring or arising prior to such expiration, termination, return of possession of the Aircraft or storage;
(7) to any Tax in the nature of an intangible or similar tax upon or with respect to the value or principal amount of the interest of any Tax Indemnitee in any of the Secured Certificates, the Owner Trust or the Pass Through Certificates;
(8) with respect to any Tax Indemnitee to any Tax imposed on or with respect to a transferee (or subsequent transferee) of an original Tax Indemnitee to the extent such Taxes would not have been required to be withheld or imposed on or with respect to such original Tax Indemnitee;
(9) to any Tax which would not have been imposed on (A) the Indemnitee regardless of Owner Trustee, the use, location, registration, subleasing, leasing or operation of the Aircraft Trust Estate or the presence Owner Participant but for, a Lessor Lien (including, for this purpose, Liens which would be a Lessor Lien but for the proviso in the definition of Lessor Liens) or activities of Lessee(B) the Indenture Trustee but for an Indenture Trustee's Lien, in each case with respect to the Tax Indemnitee to whom such Lien is attributable;
(210) Taxes that to any Tax to the extent such Tax would not have been imposed but for a Lessor's Lien;
present or future connection between the Tax Indemnitee or any Affiliate thereof and the jurisdiction imposing such Taxes (3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraftincluding, without limitation, the Trust EstateTax Indemnitee or an Affiliate thereof being or having been a citizen or resident thereof, or being or having been organized, present or engaged in a trade or business therein, or having or having had, a permanent establishment or fixed place of business therein, or engaging, or having engaged, in one or more transactions or activities therein unrelated to the transactions contemplated by the Operative Documents), or any interest therein, or other than a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence connection arising solely by reason of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(911) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes any Tax imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the a Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax Indemnitee to the extent imposed as a result of the failure of the Owner Participant to timely and properly file any return, unless such failure is caused by LesseeTax Indemnitee's failure to timely provide information comply with any certification, information, documentation, reporting or similar procedure that is required by law, treaty or regulation as a condition to be provided under the allowance of any reduction in the rate of such Tax or any exemption or other relief from such Tax;
(12) to any Tax on a Tax Indemnitee to the extent arising out of, or caused by, or to the extent such Tax would not have been incurred but for, (A) the willful misconduct or gross negligence of such Tax Indemnitee or any of its Affiliates or (B) the inaccuracy or breach of any representation, warranty, covenant or agreement by such Tax Indemnitee or any of its Affiliates in any Operative DocumentsDocument;
(13) Taxes to any Tax on a Tax Indemnitee to the extent consisting of interest, penalties, fines or additions to Tax resulting from the negligence or willful misconduct of such Tax Indemnitee or any of its Affiliates in connection with the filing of, or failure to file, any tax return, the payment of, or failure to pay any Tax, or the conduct of any proceeding in respect thereof unless resulting from the failure by Lessee to perform its obligations under Section 7(b)(v) hereof;
(14) to any Tax imposed on any Tax Indemnitee under Section 4975 of the Internal Revenue Code or under subtitle B of ERISA or any equivalent state law as a result of the use by such Tax Indemnitee or any of its Affiliates of the assets of an "employee benefit plan" (as defined in Section 3(3) of ERISA) to purchase a Secured Certificate, make an equity investment or otherwise acquire any interest in the Trust Estate or any Secured Certificate;
(15) to any Tax that would not have been imposed but for an Indemnitee's breach of amendment to any covenant Operative Document to which Lessee is not a party, which amendment was not required or the inaccuracy of any representation or warranty of such Indemnitee consented to by Lessee in any of the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign personwriting; andor
(16) Taxes imposed by section 4975 in the case of the Code Policy Provider, to any premium or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliatessimilar Tax.
Appears in 1 contract
Samples: Participation Agreement (Northwest Airlines Inc /Mn)
Exclusions from General Tax Indemnity. The provisions Section 8.01 (except for the first two sentences of Section 6(b)(ithe first paragraph thereof) shall not apply to:
(1a) in the case of Owner Participant and any Loan Participant, Taxes on, based on, measured by (other than Taxes that are or with respect to are in the gross or net income, gross or net receipts, minimum or alternative taxes, tax preferences, capital, net worth, franchise or conduct nature of business (but not excluding sales, use, licenseproperty, rentalvalue-added, ad valorem, value added tax (to the extent that such value added tax is not imposed as a substitute for an income tax) license or property taxes) (arental Taxes) imposed by the United States Federal government pursuant to Subtitle A of the Code or any successor provision (including any minimum Taxes, withholding Taxes and any Taxes on or measured by any state or local government or taxing authority or items of tax preference), other than in the case of any Loan Participant (b) imposed by any foreign government or taxing authority except where such Tax is imposed by reason of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee in such jurisdiction and exceeds the Tax that would have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lessee;
(2i) Taxes that would not have been imposed but for if a Lessor's Lien;
(3change in the Amortization Schedules pursuant to Section 2.03(b) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraft, the Trust Estate, or the Operative Documents, or any interest therein, or a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
Indenture had not occurred and (4) Taxes resulting from the willful misconduct or negligence of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(9) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax to the extent imposed as a result of the failure of the Owner Participant to timely and properly file any return, unless such failure is caused by Lessee's failure to timely provide information required to be provided under the Operative Documents;
(13ii) Taxes that would not have been imposed but for an Indemnitee's breach of any covenant or if Lessee had not assumed the inaccuracy of any representation or warranty of such Indemnitee in any Loan Certificates pursuant to Section 6.09 of the Operative DocumentsIndenture or Section 4.02(b) of the Lease;
(14b) in the case of Owner Participant and Loan Participants, Taxes (other than Taxes that are or are in the nature of an intangible sales, use, property, value-added, license or similar Tax imposed upon, or with respect to, (a) the value of the Owner Participant's interest in the Trust or the Indenture Trust or (b) the value or the principal amount of rental Taxes and other than any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign person; and
(16) Taxes imposed by section 4975 any government or taxing authority outside the United States as a result of the Code location of the Facility Assets or any successor provision thereto. References part thereof in the jurisdiction imposing the Tax ("Indemnified Foreign-Taxeses")) imposed on an Indemnified Person that are based upon or measured by gross or net income or gross or net receipts of such Indemnified Person (including any capital gains Taxes, minimum Taxes and any Taxes on or measured by any items of tax preference) other than in the case of any Loan Participant (i) Taxes that would not have been imposed if a change in the Amortization Schedules pursuant to Section 2.03(b) of the Owner Participant shall include such Person's respective successors and permitted assignsIndenture had not occurred, officers, directors, servants, employees, agents and Affiliates.(ii) Taxes that would not have been imposed if Lessee had not assumed the Loan Certificates pursuant to Section 6.09 of the Indenture or
Appears in 1 contract
Samples: Lease Agreement (New Tenneco Inc)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i7(b)(i) shall not apply toapply:
(1) Taxes on, based on, measured by or with respect to any Tax Indemnitee to any Income Tax (as defined in Section 7(d) hereof) imposed by (A) the gross United States Federal government or net income(B) any U.S. state or local taxing jurisdiction;
(2) with respect to any Tax Indemnitee, gross to any Income Taxes imposed by any foreign or net receiptsinternational government, minimum jurisdiction or alternative taxes, tax preferences, capital, net worth, franchise taxing authority or conduct territory or possession of business (but not excluding sales, use, license, rental, ad valorem, value added tax (the United States except to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) imposed by Tax Indemnitee would be subject to such Income Tax if the United States or by any state or local government or taxing authority or (b) imposed by any foreign government or taxing authority except where sole connection between such Tax is imposed by reason of Indemnitee and the use, location, registration, subleasing, leasing or Taxing Authority had been the location and operation of the Aircraft or the presence or activities of Lessee the Owner or any lessee within such Taxing Authority;
(3) to any capital gains taxes, excess profits taxes, value added taxes, branch profits taxes, accumulated earnings taxes, personal holding company taxes, succession taxes or estate or similar taxes;
(4) to any Tax imposed as a result of a transfer or disposition by a Tax Indemnitee including, without limitation, a transfer or disposition of all or any portion of its respective equitable or legal ownership interest in a Secured Certificate (including sales of participations therein), the Collateral (as defined in the Trust Indenture) or any Operative Document or any interest in such jurisdiction and exceeds Tax Indemnitee;
(5) to any Tax based on or measured by any fees received by any Pass Through Trustee, the Indenture Trustee or the Subordination Agent in connection with any transaction contemplated by the Operative Documents;
(6) [Intentionally Omitted]
(7) to any Tax that in the nature of an intangible or similar tax upon or with respect to the value or principal amount of the interest of any Tax Indemnitee in any of the Secured Certificates or the Pass Through Certificates;
(8) with respect to any Tax Indemnitee to any Tax imposed on or with respect to a transferee (or subsequent transferee) of an original Tax Indemnitee to the extent such Taxes would not have been required to be withheld or imposed on or with respect to such original Tax Indemnitee;
(9) to any Tax which would not have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lesseebut for an Indenture Trustee’s Lien;
(210) Taxes that to any Tax to the extent such Tax would not have been imposed but for a Lessor's Lien;
present or future connection between the Tax Indemnitee or any Affiliate thereof and the jurisdiction imposing such Taxes (3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraftincluding, without limitation, the Trust EstateTax Indemnitee or an Affiliate thereof being or having been a citizen or resident thereof, or being or having been organized, present or engaged in a trade or business therein, or having or having had, a permanent establishment or fixed place of business therein, or engaging, or having engaged, in one or more transactions or activities therein unrelated to the transactions contemplated by the Operative Documents), or any interest therein, or other than a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence connection arising solely by reason of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(911) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes any Tax imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the a Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax Indemnitee to the extent imposed as a result of the failure of the Owner Participant to timely and properly file any return, unless such failure is caused by Lessee's Tax Indemnitee’s failure to timely provide information comply with any certification, information, documentation, reporting or similar procedure that is required by law, treaty or regulation as a condition to be provided under the allowance of any reduction in the rate of such Tax or any exemption or other relief from such Tax;
(12) to any Tax on a Tax Indemnitee to the extent arising out of, or caused by, or to the extent such Tax would not have been incurred but for, (A) the willful misconduct or gross negligence of such Tax Indemnitee or any of its Affiliates or (B) the inaccuracy or breach of any representation, warranty, covenant or agreement by such Tax Indemnitee or any of its Affiliates in any Operative DocumentsDocument;
(13) Taxes to any Tax on a Tax Indemnitee to the extent consisting of interest, penalties, fines or additions to Tax resulting from the negligence or willful misconduct of such Tax Indemnitee or any of its Affiliates in connection with the filing of, or failure to file, any tax return, the payment of, or failure to pay any Tax, or the conduct of any proceeding in respect thereof unless resulting from the failure by the Owner to perform its obligations under Section 7(b)(v) hereof;
(14) to any Tax imposed on any Tax Indemnitee under Section 4975 of the Internal Revenue Code or under subtitle B of ERISA or equivalent state law as a result of the use by such Tax Indemnitee or any of its Affiliates of the assets of an “employee benefit plan” (as defined in Section 3(3) of ERISA) to purchase a Secured Certificate or otherwise acquire any interest in any Secured Certificate; or
(15) to any Tax that would not have been imposed but for an Indemnitee's breach of amendment to any covenant or the inaccuracy of any representation or warranty of such Indemnitee in any of the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of Document to which the Owner Participant's interest in the Trust is not a party, which amendment was not requested or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments consented to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliatesin writing.
Appears in 1 contract
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i7(b)(i) shall not apply toapply:
(1) Taxes on, based on, measured by or with respect to any Tax Indemnitee to any Income Tax (as defined in Section 7(d) hereof) imposed by (A) the gross United States Federal government or net income(B) any U.S. state or local taxing jurisdiction;
(2) with respect to any Tax Indemnitee, gross to any Income Taxes imposed by any foreign or net receiptsinternational government, minimum jurisdiction or alternative taxes, tax preferences, capital, net worth, franchise taxing authority or conduct territory or possession of business (but not excluding sales, use, license, rental, ad valorem, value added tax (the United States except to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) imposed by Tax Indemnitee would be subject to such Income Tax if the United States or by any state or local government or taxing authority or (b) imposed by any foreign government or taxing authority except where sole connection between such Tax is imposed by reason of Indemnitee and the use, location, registration, subleasing, leasing or Taxing Authority had been the location and operation of the Aircraft or the presence or activities of Lessee the Owner or any lessee within such Taxing Authority;
(3) to any capital gains taxes, excess profits taxes, value added taxes, accumulated earnings taxes, personal holding company taxes, succession taxes or estate or similar taxes;
(4) to any Tax imposed as a result of a transfer or disposition by a Tax Indemnitee including, without limitation, a transfer or disposition of all or any portion of its respective equitable or legal ownership interest in a Secured Certificate (including sales of participations therein), the Collateral (as defined in the Trust Indenture) or any Operative Document or any interest in such jurisdiction and exceeds Tax Indemnitee;
(5) to any Tax based on or measured by any fees received by the Pass Through Trustee, the Indenture Trustee, the Policy Provider or any Agent in connection with any transaction contemplated by the Operative Documents;
(6) [Intentionally Omitted]
(7) to any Tax that in the nature of an intangible or similar tax upon or with respect to the value or principal amount of the interest of any Tax Indemnitee in any of the Secured Certificates or the Pass Through Certificates;
(8) with respect to any Tax Indemnitee to any Tax imposed on or with respect to a transferee (or subsequent transferee) of an original Tax Indemnitee to the extent such Taxes would not have been required to be withheld or imposed on or with respect to such original Tax Indemnitee;
(9) to any Tax which would not have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lesseebut for an Indenture Trustee's Lien;
(210) Taxes that to any Tax to the extent such Tax would not have been imposed but for a Lessor's Lien;
present or future connection between the Tax Indemnitee or any Affiliate thereof and the jurisdiction imposing such Taxes (3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraftincluding, without limitation, the Trust EstateTax Indemnitee or an Affiliate thereof being or having been a citizen or resident thereof, or being or having been organized, present or engaged in a trade or business therein, or having or having had, a permanent establishment or fixed place of business therein, or engaging, or having engaged, in one or more transactions or activities therein unrelated to the transactions contemplated by the Operative Documents), or any interest therein, or other than a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence connection arising solely by reason of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(911) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes any Tax imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the a Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax Indemnitee to the extent imposed as a result of the failure of the Owner Participant to timely and properly file any return, unless such failure is caused by LesseeTax Indemnitee's failure to timely provide information comply with any certification, information, documentation, reporting or similar procedure that is required by EXHIBIT K-3 law, treaty or regulation as a condition to be provided under the allowance of any reduction in the rate of such Tax or any exemption or other relief from such Tax;
(12) to any Tax on a Tax Indemnitee to the extent arising out of, or caused by, or to the extent such Tax would not have been incurred but for, (A) the willful misconduct or gross negligence of such Tax Indemnitee or any of its Affiliates or (B) the inaccuracy or breach of any representation, warranty, covenant or agreement by such Tax Indemnitee or any of its Affiliates in any Operative DocumentsDocument;
(13) Taxes to any Tax on a Tax Indemnitee to the extent consisting of interest, penalties, fines or additions to Tax resulting from the negligence or willful misconduct of such Tax Indemnitee or any of its Affiliates in connection with the filing of, or failure to file, any tax return, the payment of, or failure to pay any Tax, or the conduct of any proceeding in respect thereof unless resulting from the failure by the Owner to perform its obligations under Section 7(b)(v) hereof;
(14) to any Tax imposed on any Tax Indemnitee under Section 4975 of the Internal Revenue Code or under subtitle B of ERISA or equivalent state law as a result of the use by such Tax Indemnitee or any of its Affiliates of the assets of an "employee benefit plan" (as defined in Section 3(3) of ERISA) to purchase a Secured Certificate or otherwise acquire any interest in any Secured Certificate;
(15) to any Tax that would not have been imposed but for an Indemnitee's breach of amendment to any covenant or the inaccuracy of any representation or warranty of such Indemnitee in any of the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of Document to which the Owner Participant's interest is not a party, which amendment was not requested or consented to by the Owner in the Trust or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments to a foreign personwriting; andor
(16) Taxes imposed by section 4975 in the case of the Code Policy Provider, to any premium or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliatessimilar Tax.
Appears in 1 contract
Samples: Participation Agreement (Northwest Airlines Inc /Mn)
Exclusions from General Tax Indemnity. The provisions of Section 6(b)(i7(b)(i) shall not apply toapply:
(1) Taxes on, based on, measured by or with respect to any Tax Indemnitee to any Income Tax (as defined in Section 7(d) hereof) imposed by (A) the gross United States Federal government or net income(B) any U.S. state or local taxing jurisdiction;
(2) with respect to any Tax Indemnitee, gross to any Income Taxes imposed by any foreign or net receiptsinternational government, minimum jurisdiction or alternative taxes, tax preferences, capital, net worth, franchise taxing authority or conduct territory or possession of business (but not excluding sales, use, license, rental, ad valorem, value added tax (the United States except to the extent that such value added tax is not imposed as a substitute for an income tax) or property taxes) (a) imposed by Tax EXHIBIT K-1 Indemnitee would be subject to such Income Tax if the United States or by any state or local government or taxing authority or (b) imposed by any foreign government or taxing authority except where sole connection between such Tax is imposed by reason of Indemnitee and the use, location, registration, subleasing, leasing or Taxing Authority had been the location and operation of the Aircraft or the presence or activities of Lessee the Owner or any lessee within such Taxing Authority;
(3) to any capital gains taxes, excess profits taxes, value added taxes, branch profits taxes, accumulated earnings taxes, personal holding company taxes, succession taxes or estate or similar taxes;
(4) to any Tax imposed as a result of a transfer or disposition by a Tax Indemnitee including, without limitation, a transfer or disposition of all or any portion of its respective equitable or legal ownership interest in a Secured Certificate (including sales of participations therein), the Collateral (as defined in the Trust Indenture) or any Operative Document or any interest in such jurisdiction and exceeds Tax Indemnitee;
(5) to any Tax based on or measured by any fees received by any Pass Through Trustee, the Indenture Trustee, the Policy Provider or the Subordination Agent in connection with any transaction contemplated by the Operative Documents;
(6) [Intentionally Omitted]
(7) to any Tax that in the nature of an intangible or similar tax upon or with respect to the value or principal amount of the interest of any Tax Indemnitee in any of the Secured Certificates or the Pass Through Certificates;
(8) with respect to any Tax Indemnitee to any Tax imposed on or with respect to a transferee (or subsequent transferee) of an original Tax Indemnitee to the extent such Taxes would not have been required to be withheld or imposed on or with respect to such original Tax Indemnitee;
(9) to any Tax which would not have been imposed on the Indemnitee regardless of the use, location, registration, subleasing, leasing or operation of the Aircraft or the presence or activities of Lesseebut for an Indenture Trustee's Lien;
(210) Taxes that to any Tax to the extent such Tax would not have been imposed but for a Lessor's Lien;
present or future connection between the Tax Indemnitee or any Affiliate thereof and the jurisdiction imposing such Taxes (3) Taxes resulting from a voluntary transfer by the Owner Participant of the Aircraftincluding, without limitation, the Trust EstateTax Indemnitee or an Affiliate thereof being or having been a citizen or resident thereof, or being or having been organized, present or engaged in a trade or business therein, or having or having had, a permanent establishment or fixed place of business therein, or engaging, or having engaged, in one or more transactions or activities therein unrelated to the transactions contemplated by the Operative Documents), or any interest therein, or other than a transfer relating to bankruptcy or similar proceedings involving the Owner Participant;
(4) Taxes resulting from the willful misconduct or negligence connection arising solely by reason of the Indemnitees;
(5) Taxes imposed with respect to any period after the expiration of the Lease or the earlier discharge in full of Lessee's obligation to pay Termination Value;
(6) Taxes imposed on any transferee (a) if such Tax would not have been imposed on the original Indemnitee, or (b) to the extent such Tax exceeds the amount of Tax that would have been imposed on the original Indemnitee;
(7) Taxes which have been included in the Lessor's Cost;
(8) Taxes imposed by a government or taxing authority of any jurisdiction that would have been imposed on the Indemnitee for activities or property in such jurisdiction unrelated to the transactions contemplated by the Operative Documents;
(911) Taxes being contested pursuant to the contest provisions contained in Section 6(b)(iv);
(10) Taxes any Tax imposed on the Owner Trustee or the Owner Participant based on, measured by or imposed with respect to any fees, commissions or compensation received by it;
(11) Taxes imposed on the Owner Participant and indemnified under the a Tax Indemnity Agreement;
(12) Interest, penalties and additions to Tax Indemnitee to the extent imposed as a result of the failure of the Owner Participant to timely and properly file any return, unless such failure is caused by LesseeTax Indemnitee's failure to timely provide information comply with any certification, EXHIBIT K-2 information, documentation, reporting or similar procedure that is required by law, treaty or regulation as a condition to be provided under the allowance of any reduction in the rate of such Tax or any exemption or other relief from such Tax;
(12) to any Tax on a Tax Indemnitee to the extent arising out of, or caused by, or to the extent such Tax would not have been incurred but for, (A) the willful misconduct or gross negligence of such Tax Indemnitee or any of its Affiliates or (B) the inaccuracy or breach of any representation, warranty, covenant or agreement by such Tax Indemnitee or any of its Affiliates in any Operative DocumentsDocument;
(13) Taxes to any Tax on a Tax Indemnitee to the extent consisting of interest, penalties, fines or additions to Tax resulting from the negligence or willful misconduct of such Tax Indemnitee or any of its Affiliates in connection with the filing of, or failure to file, any tax return, the payment of, or failure to pay any Tax, or the conduct of any proceeding in respect thereof unless resulting from the failure by the Owner to perform its obligations under Section 7(b)(v) hereof;
(14) to any Tax imposed on any Tax Indemnitee under Section 4975 of the Internal Revenue Code or under subtitle B of ERISA or equivalent state law as a result of the use by such Tax Indemnitee or any of its Affiliates of the assets of an "employee benefit plan" (as defined in Section 3(3) of ERISA) to purchase a Secured Certificate or otherwise acquire any interest in any Secured Certificate;
(15) to any Tax that would not have been imposed but for an Indemnitee's breach of amendment to any covenant or the inaccuracy of any representation or warranty of such Indemnitee in any of the Operative Documents;
(14) Taxes in the nature of an intangible or similar Tax imposed upon, or with respect to, (a) the value of Document to which the Owner Participant's interest in the Trust is not a party, which amendment was not requested or the Indenture Trust or (b) the value or the principal amount of any Lender's interest in any of the Equipment Notes;
(15) U.S. withholding taxes imposed on payments consented to a foreign person; and
(16) Taxes imposed by section 4975 of the Code or any successor provision thereto. References to the Owner Participant shall include such Person's respective successors and permitted assigns, officers, directors, servants, employees, agents and Affiliates.in writing; or
Appears in 1 contract
Samples: Participation Agreement (Northwest Airlines Inc /Mn)
