Common use of Exclusions from General Tax Indemnity Clause in Contracts

Exclusions from General Tax Indemnity. The provisions of subsection 16(a) shall not apply to a Tax Indemnified Party in the case of: (i) Taxes that are imposed on or measured by the net income, excess profits, receipts (other than any excise or gross receipts tax imposed by the State of Hawaii), franchises, capital or conduct of business of such Tax Indemnified Party, other than any such taxes which are imposed in lieu of any sales, use or value added taxes; (ii) any other Taxes based on, or measured by, the net income of such Tax Indemnified Party (other than (x) Taxes which are, or are in the nature of, sales, use or rental taxes or (y) Taxes imposed by any Taxing Authority (other than a taxing authority for the jurisdiction in which such Tax Indemnified Party is doing business) as a result of a nexus between the jurisdiction of the Taxing Authority and any Item of Equipment or any Part or any part or the activities in the jurisdiction of the Taxing Authority of Lessee, any sublessee or any other user of the Aircraft (other than such Tax Indemnified Party or any Affiliate thereof) or any Affiliate of any of the foregoing); (iii) Taxes that are imposed as a result of (y) any voluntary sale, assignment, transfer or other disposition by such Tax Indemnified Party of any interest of such Tax Indemnified Party in the Aircraft, the Airframe, any Serviced Engine, any Part, or any interest therein, unless such sale, assignment, transfer or disposition results from (1) action taken by or on behalf of such Tax Indemnified Party as provided in or permitted by this Lease in connection with or by reason of any Lessee Event of Default that has occurred and is continuing or any exercise by the Lessor of any of its remedies in connection with any such Lessee Event of Default as provided in or permitted by the Lease, or (2) any replacement or substitution by the Lessee of any Engine or any Part; or (z) any involuntary transfer of any of the foregoing interests in connection with any bankruptcy or other proceeding for the relief of debtors in which such Tax Indemnified Party is the debtor or any foreclosure by a creditor of such Tax Indemnified Party; (iv) Taxes in the nature of penalties, additions to tax, interest or fines resulting directly from the negligence of the Tax Indemnified Party in connection with the preparation or filing of any tax return unless such Tax Indemnified Party files any tax return in a manner requested by Lessee, required to be filed by such Tax Indemnified Party without regard to the transactions contemplated by this Lease, the payment of any taxes shown thereon or the conduct of any proceeding in respect thereof, except to the extent attributable to the failure of Lessee to perform its obligations or to otherwise perform its duties and responsibilities pursuant to this Lease, including, without limitation, the obligation to make payments hereunder; (v) so long as no Lessee Default or Event of Default shall be continuing, Taxes imposed with respect to any period after (i) the expiration of the Term and the return of the Aircraft to the Lessor in accordance with Section 5 of this Lease or (ii) the earlier discharge in full of Lessee's obligation to pay the Stipulated Loss Value and all other amounts due under this Lease; provided, however, that this exception shall not apply to Taxes (x) relating to events occurring or matters arising upon or prior to such expiration and return or discharge, or (y) imposed on or with respect to any payments due after such expiration and return or discharge until after such payments have been made; (vi) Taxes to the extent of the excess of such Taxes over the amount of such Taxes which would have been imposed and indemnified against had there not been a sale, assignment, transfer or other disposition (whether voluntary or, if resulting from bankruptcy, foreclosure (other than foreclosure resulting from a Lessee Event of Default) or similar proceedings in which such Tax Indemnified Party is the debtor, involuntary) by a Tax Indemnified Party of any interest of such Tax Indemnified Party in the Aircraft, the Airframe, any Serviced Engine, or any Part, unless such transfer results from action taken by or on behalf of such Tax Indemnified Party after a Lessee Event of Default has occurred and while it is continuing or any exercise by the Lessor of any of its remedies in connection with any such Lessee Event of Default; (vii) Taxes arising out of or caused by any willful misconduct or gross negligence of such Tax Indemnified Party; (viii) with respect to any Tax Indemnified Party, any Tax that results solely from such Tax Indemnified Party or a related Tax Indemnified Party engaging in transactions other than those contemplated by this Lease or any Long-Term Agreement, or those in which such Tax Indemnified Party is currently engaged; (ix) sales tax incurred by Lessor in connection with the maintenance of the Serviced Aircraft pursuant to Attachment A to Exhibit E hereto, other than any such tax, whether in the form of a sales tax, gross receipts tax or other functional equivalent of a sales tax imposed by the State of Hawaii; (x) any Tax to the extent such Tax would not have been imposed if a Tax Indemnified Party or a related Tax Indemnified Party had not engaged in activities in the jurisdiction imposing such Tax which activities are unrelated to the transactions contemplated by the this Lease or the other Long Term Agreements, but only to the extent such Tax would not have been payable in the absence of such unrelated activities; or (xi) any failure of a Tax Indemnified Party to comply with (I) certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Tax, if such compliance is required by statute or by regulation of the jurisdiction imposing such Tax as a precondition to relief or exemption from such Tax; or (II) any other certification, information, documentation, reporting or other similar requirements under the Tax laws or regulations of the jurisdiction imposing such Tax that would establish entitlement to otherwise applicable relief or exemption from such Tax; provided, however, that the exclusion set forth in this subsection 16(a)(x) shall not apply if (v) such failure to comply was due to a failure of the Lessee to provide such Tax Indemnified Party with the information required to be supplied by the Lessee in order for such Tax Indemnified Party to comply with such requirement or due to a failure of the Lessee to notify such Tax Indemnified Party of such requirement and such Tax Indemnified Party was not otherwise aware of such requirement; or (w) such failure to comply was done upon the advice, concurrence and/or direction or with the knowledge of the Lessee.

Exclusions from General Tax Indemnity. The provisions of subsection 16(aSection 7(b)(i) shall not apply: (1) in the case of an Indemnitee which is the Owner Participant, the Owner Trustee, the Trust Estate, or a successor or assign of any thereof, to any Income Tax (as defined in Section 7(b)(xii) hereof) imposed by (A) the United States Federal government, (9) any state or local taxing jurisdictions or authorities in the United States provided, however, that this clause (B) shall not apply to a Tax Indemnified Party in the case of: (i) Income Taxes that are imposed on or measured by the net income, excess profits, receipts (other than any excise or gross receipts tax those imposed by the State of Hawaii), franchises, capital or conduct of business of such Tax Indemnified Party, other than any such taxes which are imposed in lieu of any sales, use or value added taxes; (iion net income) any other Taxes based on, or measured by, the net income of such Tax Indemnified Party (other than (x) Taxes which are, or are in the nature of, sales, use or rental taxes or (y) Taxes imposed by any Taxing Authority (other than a taxing authority for the jurisdiction state and local jurisdictions in which such Tax Indemnified Party is doing business) as a result of a nexus between the jurisdiction of the Taxing Authority and any Item of Equipment Lessee or any Part sublessee, assignee or any part or the activities in the jurisdiction of the Taxing Authority of Lessee, any sublessee or any other user of the Aircraft or any Engine maintains its principal place of business, or (C) any foreign government or any PARTICIPATION AGREEMENT (1992 757 [__]) political subdivision or taxing authority thereof or any territory or possession of the United States or by any international authority, other than to the extent imposed by such Tax Indemnified Party or any Affiliate thereofjurisdiction described in this clause (C) or any Affiliate of any by reason of the foregoing)use, operation, location or registration of the Aircraft to or in such jurisdiction; (iii2) in the case of an Indemnitee which is a Loan Participant or any Certificate Holder or any successor or assign of either thereof, to Income Taxes that are or transfer taxes relating to any payments of principal, interest or premium, if any, on the Loan Certificates, or to a Certificate Holder, imposed by any government or taxing authority; (3) to any Tax imposed on an Indemnitee which is the Owner Participant, the Owner Trustee, or the Trust Estate, or any successor or assign of any thereof, as a result of (yA) any a voluntary sale, assignment, transfer or other disposition by such Tax Indemnified Party Indemnitee of all or any portion of its interest in the Aircraft, Airframe, Engines or any Part or part thereof, the Trust Estate or the Operative Documents including, without limitation, the voluntary revocation of such Tax Indemnified Party the trust created by the Trust Agreement, or (B) an involuntary transfer or disposition of all or any portion of its respective equitable or legal ownership interest in the Aircraft, the Airframe, any Serviced Enginethe Engines, any Part, the Parts or any interest thereinpart thereof, unless the Trust Estate or the Operative Documents, by reason of a bankruptcy or other similar proceedings involving such saleIndemnitee, assignmentprovided, however, that this Section 7 (b) (ii) (3) shall not apply if such transfer or disposition results from shall occur, (1x) action taken by as a result of a Default or on behalf an Event of such Tax Indemnified Party as provided in Default, or permitted by this Lease (y) in connection with the termination of the Lease Agreement or by reason action or direction of the Lessee pursuant to Sections 8, 9, 10 or 19 thereof; (4) to any Tax imposed on any Indemnitee which is a Loan Participant, any Certificate Holder, the Mortgagee or the Trust Indenture Estate or any successor or assign of any Lessee thereof, as a result of a voluntary or involuntary transfer or other disposition of all or any portion of its respective equitable or legal interests in the Trust Estate or the Trust Indenture Estate or the Operative Documents unless, in each case, such transfer or disposition shall occur (A) upon 30 days prior notice PARTICIPATION AGREEMENT (1992 757 [__]) during a period when an Event of Default that has occurred and is continuing under the Lease Agreement at the time of transfer or disposition, or (B) in connection with the termination of the Lease Agreement or action or direction of the Lessee pursuant to Sections 9, 10 or 19 thereof; (5) to any exercise Tax imposed on the Owner Participant, Trust Estate or Owner Trustee which results from the willful misconduct or gross negligence of such Indemnitee; (6) to any Tax imposed on an Indemnitee which is a Loan Participant, a Certificate Holder, Mortgagee or Trust Indenture Estate which results from the willful misconduct or gross negligence of such Indemnitee; (7) to any Tax based on or measured by any fees received by the Lessor of any of its remedies Owner Trustee or the Mortgagee in connection with any such Lessee Event of Default as provided in or permitted transaction contemplated by the Lease, or (2) any replacement or substitution by the Lessee of any Engine or any Part; or (z) any involuntary transfer of any of the foregoing interests in connection with any bankruptcy or other proceeding for the relief of debtors in which such Tax Indemnified Party is the debtor or any foreclosure by a creditor of such Tax Indemnified PartyOperative Documents; (iv) Taxes in the nature of penalties, additions to tax, interest or fines resulting directly from the negligence of the Tax Indemnified Party in connection with the preparation or filing of any tax return unless such Tax Indemnified Party files any tax return in a manner requested by Lessee, required to be filed by such Tax Indemnified Party without regard to the transactions contemplated by this Lease, the payment of any taxes shown thereon or the conduct of any proceeding in respect thereof, except to the extent attributable to the failure of Lessee to perform its obligations or to otherwise perform its duties and responsibilities pursuant to this Lease, including, without limitation, the obligation to make payments hereunder; (v) 8) so long as no Lessee Default or Event of Default shall be continuing, Taxes to any Tax imposed with respect to any time period commencing after (i) the expiration of the Term and the (A) return of the Aircraft to the Lessor in accordance with Section 5 of this Lease or Aircraft, (iiB) the earlier discharge in full of Lessee's obligation to pay the Stipulated Loss Value or the Termination Value and all other amounts due under this Leasethe Lease Agreement or (C) placement in storage of the Aircraft pursuant to Section 5(d) of the Lease Agreement; provided, however, that this exception shall not apply to Taxes (x) relating unless such Tax relates to events occurring or matters arising occurring prior to or simultaneously with the earliest of such times; (9) in the case of an Indemnitee which is a Loan Participant or any Certificate Holder, or any successor or assign of either thereof, to any Tax in the nature of an intangible or similar tax upon or prior with respect to the value of the interest of such expiration and return Loan Participant or discharge, any Certificate Holder in any of the Loan Certificates imposed by any government or taxing authority; (y10) to any Tax imposed on or with respect to any payments due after such expiration and return a transferee (or discharge until after such payments have been made; (visubsequent transferee) Taxes to the extent of the excess of such Taxes over the amount of such Taxes which would have been imposed and indemnified against had there not been a sale, assignment, transfer or other disposition (whether voluntary or, if resulting from bankruptcy, foreclosure (other than foreclosure resulting from a Lessee Event of Default) or similar proceedings in which such Tax Indemnified Party is the debtor, involuntary) by a Tax Indemnified Party of any interest of such Tax Indemnified Party in the Aircraft, the Airframe, any Serviced Engine, or any Part, unless such transfer results from action taken by or on behalf of such Tax Indemnified Party after a Lessee Event of Default has occurred and while it is continuing or any exercise by the Lessor of any of its remedies in connection with any such Lessee Event of Default; (vii) Taxes arising out of or caused by any willful misconduct or gross negligence of such Tax Indemnified Party; (viii) with respect to any Tax Indemnified Party, any Tax that results solely from such Tax Indemnified Party or a related Tax Indemnified Party engaging in transactions other than those contemplated by this Lease or any Long-Term Agreement, or those in which such Tax Indemnified Party is currently engaged; (ix) sales tax incurred by Lessor in connection with the maintenance of the Serviced Aircraft pursuant to Attachment A to Exhibit E hereto, other than any such tax, whether in the form of a sales tax, gross receipts tax or other functional equivalent of a sales tax imposed by the State of Hawaii; (x) any Tax an original Indemnitee to the extent such Tax would not have been required to be withheld or imposed on or with respect to such original Indemnitee; provided, that the exception in PARTICIPATION AGREEMENT (1992 757 [__]) this Section 7 (b) (ii) (10) shall not apply to any transferee (or subsequent transferee) where such transfer shall have occurred at any time after a declaration of Default in accordance with Section 15 of the Lease Agreement and while an Event of Default shall be continuing under the Lease Agreement at the time of transfer; (11) to any Tax imposed on the Owner Trustee or an Owner Participant resulting from, or which would not have occurred but for, a Lessor Lien (including for this purpose Liens that would be Lessor Liens but for the proviso to the definition of Lessor Liens); (12) to any Tax, if a any, which has been included in the Lessor's Cost; and (13) to any Tax Indemnified Party or a related imposed on the Owner Participant by any jurisdiction to the extent such Tax Indemnified Party had not engaged in would have been imposed on the Owner Participant for activities in the such jurisdiction imposing such Tax which activities are unrelated to the transactions contemplated by the this Lease or the other Long Term Agreements, but only to the extent such Tax would not have been payable in the absence of such unrelated activities; orOperative Documents; (xi14) to any failure of a Tax Indemnified Party to comply with (I) certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Tax, if such compliance any, for which Lessee is required by statute or by regulation of obligated to pay the jurisdiction imposing such Tax as a precondition to relief or exemption from such Tax; or (II) any other certification, information, documentation, reporting or other similar requirements Owner Participant under the Tax laws Indemnity Agreement. Notwithstanding any other provision of this Section 7(b) to the contrary, the Lessee will indemnify the Owner Trustee and the Owner Participant (and any Affiliate of either thereof) for any obligation with respect to United States federal withholding taxes imposed on the Owner Trustee or regulations the Owner Participant (or any Affiliate of either thereof) with respect to the Loan Certificates (or any debt issued to refinance or refund such Loan Certificates) or as a result of a claim by the Internal Revenue Service asserted against the Trust Estate, the Owner Trustee or the Owner Participant (or any Affiliate of the jurisdiction imposing foregoing). The Lessee shall be subrogated to the rights and defenses of the Owner Trustee and the Owner Participant (and any Affiliate of either thereof) in respect of such withholding taxes, including the rights and defenses in Section 9(z) of this Agreement. The provisions of this Section 7(b) (ii) shall not apply to any Tax that would establish entitlement imposed in respect of the receipt or accrual of any indemnity payment made by Lessee pursuant to otherwise applicable relief this Section 7(b) or exemption from such TaxSection 7(c) hereof; provided, however, that the exclusion set forth in this subsection 16(a)(x) clause shall not apply if PARTICIPATION AGREEMENT (v1992 757 [__]) such failure to comply was due result in any duplication of any amounts of any gross-up payable under Section 7(b), Section 7(c) hereof or for making payments to a failure of the Lessee to provide such Relevant Indemnitee on an After-Tax Indemnified Party with the information required to be supplied by the Lessee in order for such Tax Indemnified Party to comply with such requirement or due to a failure of the Lessee to notify such Tax Indemnified Party of such requirement and such Tax Indemnified Party was not otherwise aware of such requirement; or (w) such failure to comply was done upon the advice, concurrence and/or direction or with the knowledge of the LesseeBasis.