Common use of Exclusions from General Tax Indemnity Clause in Contracts

Exclusions from General Tax Indemnity. Section 7.4(a) shall not apply to: (i) Taxes on, based on, or measured by or with respect to net income of the Lessor and the Lender (including, without limitation, minimum Taxes, capital gains Taxes, Taxes on or measured by items of tax preference or alternative minimum Taxes) other than (A) any such Taxes that are, or are in the nature of, sales, use, license, rental or property Taxes, (B) withholding Taxes imposed by the United States or any state in which Leased Property is located (i) on payments with respect to the Notes, to the extent imposed by reason of a change in Applicable Law occurring after the date on which the holder of such Note became the holder of such Note or (ii) on Rent, 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 Lessor prior to the Closing Date; (ii) 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 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 acting as trustee under the Loan Agreement; (iv) Taxes that result from any act, event or omission, or are attributable to any period of time, that occurs after the earliest of (A) the expiration of the Lease Term and, if the Leased 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 in 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 removal of any of the property by the Lessee, (B) any sale or transfer resulting from the exercise by the 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, and (D) any sale or transfer resulting from the Lessor's exercise of remedies under the Lease; (vi) 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 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 the Leased Property or the partnership interests in the Lessor, in transactions other than those permitted by the Operative Documents; (ix) to the extent any interest, penalties or additions to tax result in whole or in part from the failure of a 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 Lessee to supply information necessary for the proper and timely filing of such return that was not in the possession of such Tax Indemnitee; and (x) any Tax that results from the breach by the Lessor of its representation and warranty made in Section 4.2(b) or the breach of any Lender of its representation and warranty made in Section 4.3(b).

Exclusions from General Tax Indemnity. Section 7.4(a) SECTION 8.1 shall not apply to: (i) 8.2.1 Taxes on, based on, or measured by or with respect to the net income of the Lessor and the Lender an Indemnitee (including, without limitation, including minimum Taxes, capital gains Taxes, Taxes on or measured by items of tax preference or alternative minimum Taxes) other than (A) any such Taxes that are, or are in the nature of, sales, use, license, rental (other than Taxes imposed on net rental income) or property Taxes, (B) withholding Taxes imposed by the United States or any state in which Leased Property is located Nevada (iI) on payments with respect to the NotesCertificates, to the extent imposed by reason of a change in Applicable Law occurring after the date on which the holder of such Note became the holder of such Note or (iiII) on Rent, 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 Certificates and (C) Taxes relating to activities of the Lessor prior to the Closing Date; (ii) 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 (other than Nevada) or local taxing authority in such taxes realized by such Tax Indemnitee, state 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 Taxes are imposed as a result of the Lessee in moving the form of loans secured by the Leased Property in an amount equal Equipment or any part thereof 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 Taxesstate; (iii) 8.2.2 Taxes that are based on, measured by or measured by, imposed with respect to the fees or other compensation received by a Person acting as Agent Trustee (in its individual capacitiescapacity) or any Affiliate of any thereof for acting as trustee trustees under the Loan Trust Agreement; (iv) 8.2.3 Taxes that result from any act, event or omission, or are attributable to any period of time, that occurs after the earliest of (A) the expiration of the Lease Term with respect to the Equipment and, if the Leased Property Equipment is required to be returned to the Lessor Trustee 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 Equipment and all other amounts due under the LeaseLease and other Operative Documents, unless such Taxes (and interest, penalties and late charges related thereto) 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) 8.2.4 Taxes imposed on a Tax an 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 Equipment or any part thereof, or any interest therein or any interest or obligation arising under the Operative DocumentsDocuments or any Certificates, or from any sale, assignment, transfer or other disposition of any interest in 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 removal of any of the property Equipment by the Lessee, (B) any sale or transfer resulting from the exercise by the Lessee of any early termination option, any purchase option or sale option, (C) any transfer under Section 5.2 of the Lease and (D) any sale or transfer while an a Lease Event of Default shall have occurred and be continuing under the Lease, and (D) any sale or transfer resulting from the Lessor's exercise of remedies under the Lease; 8.2.5 Taxes (viother than sales, use, rental or property Taxes imposed by a jurisdiction in which the Equipment is located) imposed against or payable by an Indemnitee to the extent such Taxes would not have been imposed or payable but for the situs of organization, any Tax which is being contested place of business or the activities of an Indemnitee in accordance the jurisdiction imposing such Taxes (unless such place of business or activities are a result of the presence of the Equipment or the activities of Lessee or any of its Affiliates in or with the provisions of Section 7.4(crespect to such jurisdiction), during the pendency of such contest; (vii) any Tax that is 8.2.6 Taxes imposed on a Tax Indemnitee as a result of any failure by an Indemnitee to comply with any certification or other procedure timely requested by (and prepared for filing by Lessor) Lessee in writing in accordance with Section 15.3 hereof and is addressed to the Lessor and each Holder, and required by applicable law as a precondition to any exemption from, or reduction of, such Tax IndemniteeTaxes to which such Indemnitee would be entitled, so long as no such procedure would expose such Indemnitee to any adverse consequences and such failure is not due to Lessee's gross negligence failure to provide information reasonably requested or willful misconduct (other than gross negligence or willful misconduct imputed to reasonable assistance in complying with such Tax Indemnitee solely by reason of its interest in the Leased Property)requirements; (viii) any Tax to the extent resulting from a Tax Indemnitee engaging after the Closing Date, with respect to the Leased Property or the partnership interests in the Lessor, in transactions other than those permitted by the Operative Documents; (ix) to the extent any 8.2.7 Any interest, penalties or additions to tax imposed as a result in whole or in part from of the failure of a Tax an Indemnitee to file a any return that it is required to file under Section 8.5 in a procedurally proper and timely manner, manner unless such failure (A) results from the transactions contemplated is caused by the Operative Documents in circumstances where the failure of Lessee did not give timely notice to fulfill its obligations under SECTION 8.5 with respect to such Tax Indemnitee return; 8.2.8 Taxes (and such Tax Indemnitee otherwise had no actual knowledgeother than sales, use, rental or property Taxes imposed by a jurisdiction in which the Equipment is located) to the extent of the excess of such filing requirement Taxes over the amount of any comparable Taxes that would have permitted been imposed had there not been a proper transfer (other than a transfer described in clauses (A), (B), (C) and timely filing (D) of such returnSECTION 8.2.4) made by any Indemnitee or a predecessor in interest of any Indemnitee; PROVIDED, HOWEVER, that the exclusion in this SECTION 8.2.8 shall not apply to any amount necessary to make any payment hereunder After Tax; 8.2.9 Taxes that would not have been imposed but for the inaccuracy of any representation of an Indemnitee, or (B) results from the failure of the Lessee to supply information necessary for the proper and timely filing of such return that was not in the possession of such Tax Indemnitee; and (x) any Tax that results from the breach by the Lessor of its representation and warranty made in Section 4.2(b) or the breach an Indemnitee of any Lender of its representation and warranty made or covenant, contained in Section 4.3(b)SECTION 4.2, SECTION 4.3 or ARTICLE VI.

Exclusions from General Tax Indemnity. Section 7.4(a) shall not apply to: (i) Taxes on, based on, or measured by or with respect to net income of the Lessor Lessor, the Agent and the Lender Lenders (including, without limitation, minimum Taxes, capital gains Taxes, Taxes on or measured by items of tax preference or alternative minimum Taxes) other than (A) any such Taxes that are, or are in the nature of, sales, use, license, rental or property Taxes, and (B) withholding Taxes imposed by the United States or any state in which Leased Property is located (i) on payments with respect to the Notes, to the extent imposed by reason of a change in Applicable Law occurring after the date on which the holder of such Note became the holder of such Note Initial Closing Date or (ii) on Rent, 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 Lessor prior to the Closing DateAmounts; (ii) Taxes on, based on, on or in the nature of or measured by Taxes on doing business, business privilege, franchise, capital, capital stock, net worth, bank shares or mercantile license or similar taxes 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 each Funding Date the Lessor and the Lender Lenders had advanced funds to a Lessee or the Lessee 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 TaxesTaxes relating to any Leased Property; (iii) Taxes that 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 acting as trustee under the Loan Agreement; (iv) Taxes that result from any act, event or omission, or are attributable to any period of time, that occurs after the earliest earlier of (A) the expiration of the Lease Term with respect to any Leased Property and, if the such Leased 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 Lessees’ obligations to pay the Lease Balance, or any amount determined by reference thereto, with respect to the 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 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 the 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 in 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 removal of any of the property Leased Property by the any Lessee, (B) any sale or transfer resulting from the exercise by the 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, and (D) any sale or transfer resulting from the Lessor's ’s exercise of remedies under the Lease; (vi) 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 ’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 any Leased Property); (viii) any Tax to the extent resulting from a Tax Indemnitee engaging after the Closing Date, with respect to the Leased Property or the partnership interests in the Lessor, in transactions other than those permitted by the Operative Documents; (ix) to the extent any interest, penalties or additions to tax result in whole or in part from the failure of a 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 a 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 Lessee to supply information necessary for the proper and timely filing of such return of such Tax that was not in the possession of such Tax Indemnitee; and; (xix) as to Lessor, any Tax that results from the breach by the Lessor of its representation and warranty made in Section 4.2(b4.3(g) or as to any Lender the breach of any such Lender of its representation and warranty made in Section 4.3(b4.4(b); and (x) any Tax that results from a Tax Indemnitee engaging, with respect to a Leased Property, in transactions other than those permitted by the Operative Documents.

Exclusions from General Tax Indemnity. Section 7.4(a) shall not apply to: (i) Taxes on, based on, or measured by or with respect to net income of the Lessor Lessor, the Agent and the Lender Lenders (including, without limitation, minimum Taxes, capital gains Taxes, Taxes on or measured by items of tax preference or alternative minimum Taxes) other than (A) any such Taxes that are, or are in the nature of, sales, use, license, rental or property Taxes, and (B) withholding Taxes imposed by the United States or any state in which Leased Property is located (i) on payments with respect to the NotesNote, to the extent imposed by reason of a change in Applicable Law occurring after the date on which the holder of such Note Lender became the holder of such Note a Lender hereunder or (ii) on Rent, 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 Lessor prior to the Closing DateAmounts; (ii) Taxes on, based on, or in the nature of of, or measured by Taxes on doing business, business and business privilege, franchise, capital, capital stock, net worth, or mercantile license gross receipts or similar taxes 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 each Funding Date the Lessor and the Lender Lenders had advanced funds to the 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 TaxesTaxes relating to any Leased Property; (iii) Taxes that 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 acting as trustee under the any Loan AgreementDocument; (iv) Taxes that result from any act, event or omission, or are attributable to any period of time, that occurs after the earliest earlier of (A) the expiration of the Lease Term with respect to any Leased Property and, if the such Leased 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 ’s obligations to pay the Lease Balance, or any amount determined by reference thereto, with respect to the 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 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 the 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 in 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 removal of any of the property Leased Property by the Lessee, (B) any sale or transfer resulting from the exercise by the 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 Leasecontinuing, and (D) any sale or transfer resulting from the Lessor's ’s exercise of remedies under the Lease; (vi) 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 ’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 any Leased Property); (viii) any Tax to the extent resulting that results from a Tax Indemnitee engaging after the Closing Dateengaging, with respect to the any Leased Property or the partnership interests in the LessorProperty, in transactions other than those permitted unrelated to the Leased Properties or the transactions contemplated by the Operative Documents; (ix) to the extent 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 returnreturn 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; and (x) any Tax that results from the breach by the Lessor of its representation and warranty made in Section 4.2(b4.3(d) or the breach of any Lender of its representation and warranty made in Section 4.3(b4.4(b).