Common use of Special Tax Indemnity Clause in Contracts

Special Tax Indemnity. (a) Tenant hereby represents, warrants and covenants to Landlord as follows: (i) during the Term, Tenant will not construct or install any component, improvement, alteration, or addition on any Leased Property, without prior written consent from Landlord, if such construction or installation would cause such Leased Property, or any part thereof, to be “limited use property,” as such term is used in Section 5 of Revenue Procedure 2001-28, (ii) Tenant is not a “tax-exempt entity” within the meaning of Section 168(h)(2) of the Code and will not take any action that would cause any Leased Property, or any part thereof, to constitute “tax-exempt use property” within the meaning of Section 168(h) of the Code; (iii) neither Tenant nor any Affiliate will claim the Depreciation Deductions or otherwise take the position that it is the owner of any Leased Property, or any part thereof, for federal income tax purposes; (iv) as of the Commencement Date, no Leased Property will require any improvement, modification or addition in order to be rendered complete for its intended use by Tenant; and (v) to the best of Tenant’s knowledge, all written information of a factual nature with respect to any Leased Property that was provided to Landlord or an appraiser engaged by Landlord to appraise such Leased Property by or on behalf of Tenant or any Affiliate of Tenant was true and accurate in all material respects as of the date provided to Landlord or such appraiser. Notwithstanding the provisions of clause (iii) above, Tenant may take the position that it is the owner of a Leased Property for federal income tax purposes if Tenant provides to Landlord an opinion of independent tax counsel that such treatment is required by law, and Landlord consents to such treatment, which consent shall not be unreasonably withheld, conditioned or delayed or to the extent required as a result of the Internal Revenue Service making a claim or adjustment against Tenant in connection with such tax reporting, and tax counsel (or Tenant’s outside accounting firm) has concluded that such Internal Revenue Service claim or adjustment has a reasonable basis.

Special Tax Indemnity. (a) Tenant hereby represents, warrants and covenants to Landlord as follows: (i) during the Term, Tenant will not construct or install any component, improvement, alteration, or addition on any the Leased PropertyPremises, without prior written consent from Landlord, if such construction or installation would cause such the Leased PropertyPremises, or any part thereof, to be “limited use property,” as such term is used in Section 5 of Revenue Procedure 2001-28, (ii) Tenant is not a “tax-exempt entity” within the meaning of Section 168(h)(2) of the Code and will not take any action that would cause any the Leased PropertyPremises, or any part thereof, to constitute “tax-exempt use property” within the meaning of Section 168(h) of the Code; (iii) neither Tenant nor any Affiliate will claim the Depreciation Deductions or otherwise take the position that it is the owner of any the Leased PropertyPremises, or any part thereof, for federal income tax purposes; (iv) as of the Commencement Date, no the Leased Property Premises will not require any improvement, modification or addition in order to be rendered complete for its intended use by Tenant; and (v) to the best of Tenant’s knowledge, all written information of a factual nature with respect to any the Leased Property Premises that was provided to Landlord or an appraiser engaged by Landlord to appraise such the Leased Property Premises by or on behalf of Tenant or any Affiliate of Tenant was true and accurate in all material respects as of the date provided to Landlord or such appraiser. Notwithstanding the provisions of clause (iii) above, Tenant may take the position that it is the owner of a the Leased Property Premises for federal income tax purposes if Tenant provides to Landlord an opinion of independent tax counsel that such treatment is required by law, and Landlord consents to such treatment, which consent shall not be unreasonably withheld, conditioned or delayed or to the extent required as a result of the Internal Revenue Service making a claim or adjustment against Tenant in connection with such tax reporting, and tax counsel (or Tenant’s outside accounting firm) has concluded that such Internal Revenue Service claim or adjustment has a reasonable basis.

Special Tax Indemnity. (a) Tenant Lessee shall pay and assume all liability for and does hereby representsagree to indemnify each Indemnified Person and, warrants and covenants to Landlord as follows: (i) during the Termin each case, Tenant will not construct or install any componenttheir accountants, improvement, alteration, or addition on any Leased Property, without prior written consent from Landlord, if such construction or installation would cause such Leased Property, or any part thereof, to be “limited use property,” as such term is used in Section 5 of Revenue Procedure 2001-28, (ii) Tenant is not a “tax-exempt entity” within the meaning of Section 168(h)(2) of the Code and will not take any action that would cause any Leased Property, or any part thereof, to constitute “tax-exempt use property” within the meaning of Section 168(h) of the Code; (iii) neither Tenant nor any Affiliate will claim the Depreciation Deductions or otherwise take the position that it is the owner of any Leased Property, or any part thereof, for federal income tax purposes; (iv) as of the Commencement Date, no Leased Property will require any improvement, modification or addition in order to be rendered complete for its intended use by Tenant; and (v) to the best of Tenant’s knowledge, all written information of a factual nature with respect to any Leased Property that was provided to Landlord or an appraiser engaged by Landlord to appraise such Leased Property by or on behalf of Tenant or any Affiliate of Tenant was true and accurate in all material respects as of the date provided to Landlord or such appraiser. Notwithstanding the provisions of clause (iii) above, Tenant may take the position that it is the owner of a Leased Property for federal income tax purposes if Tenant provides to Landlord an opinion of independent tax counsel that such treatment is required by lawlawyers, and Landlord consents other advisors (each, a "Tax Registration Indemnitee") on an After Tax Basis for any tax, addition to such treatmenttax, which consent shall not be unreasonably withheld, conditioned penalty or delayed or to the extent required other cost as a result of a breach, inaccuracy or incorrectness of the representation found in Section 7.3(dd); provided, however, that this indemnity shall not apply to any tax, additional tax, penalty or other cost arising from (i) the gross negligence or willful misconduct of such Tax Registration Indemnitee; (ii) the inaccuracy or incompleteness of any information provided by such Tax Registration Indemnitee to Lessee to the extent such information is included in the registration form or other related materials and to the extent such failure results in the imposition of increased taxes, additions to tax, penalties or other costs; or (iii) the activities of such Tax Registration Indemnitee unrelated to the transactions contemplated herein that result in the transactions contemplated herein being deemed to be a confidential corporate tax shelter if the transactions contemplated herein would not otherwise have been deemed to be a confidential corporate tax shelter. If a written claim is made or any proceeding is commenced by the Internal Revenue Service making a against any Tax Registration Indemnitee for any amount as to which Lessee has an indemnity obligation pursuant to this Section 12.9, such Tax Registration Indemnitee agrees to notify the Lessee promptly in writing of such proposed claim or adjustment against Tenant proceeding, but the failure to provide such notice shall not release Lessee from its indemnity obligation hereunder except to the extent that it is materially adversely affected thereby. Lessee shall be entitled, at its expense, to require that any amount for which it may be obligated to indemnify a Tax Registration Indemnitee pursuant to this Section 12.9 be contested and to withhold payment during pendency of such contest (if such forbearance is permitted by law), provided that Lessee will pay any cost, expense, interest or penalty associated with such forbearance. A Tax Registration Indemnitee shall have control over any contest commenced pursuant to this Section 12.9(b) but Lessee shall have, upon request, the right to participate (including its counsel) in all proceedings and such Tax Registration Indemnitee shall keep Lessee informed as to all material developments in such contest and afford Lessee an opportunity to discuss with such Tax Registration Indemnitee Lessee's interests with respect to such contest. Lessee and each Tax Registration Indemnitee agree to cooperate with each other with respect to maintaining any required documentation or other information in connection with such the tax reportingshelter registration provisions of Code Section 6111, the investor list provisions of Code Section 6112 44 51 and tax counsel the disclosure statement provisions of Code Section 6011 (or Tenant’s outside accounting firm) has concluded that such Internal Revenue Service claim or adjustment has a reasonable basisand any of the regulations thereunder).

Special Tax Indemnity. (a) Tenant hereby represents, warrants and covenants to Landlord as follows: (i) during the Term, Tenant will not construct or install any component, improvement, alteration, or addition on any the Leased PropertyPremises, without prior written consent from Landlord, if such construction or installation would cause such the Leased PropertyPremises, or any part thereof, to be “"limited use property,” " as such term is used in Section 5 of Revenue Procedure 2001-28, (ii) Tenant is not a “"tax-exempt entity” " within the meaning of Section 168(h)(2) of the Code and will not take any action that would cause any the Leased PropertyPremises, or any part thereof, to constitute “"tax-exempt use property” " within the meaning of Section 168(h) of the Code; (iii) neither Tenant nor any Affiliate will claim the Depreciation Deductions or otherwise take the position that it is the owner of any the Leased PropertyPremises, or any part thereof, for federal income tax purposes; and (iv) as of the Commencement Date, no Leased Property will require any improvement, modification or addition in order to be rendered complete for its intended use by Tenant; and (v) to the best of Tenant’s 's knowledge, all written information of a factual nature with respect to any the Leased Property Premises that was provided to Landlord or an appraiser engaged by Landlord to appraise such the Leased Property Premises by or on behalf of Tenant or any Affiliate of Tenant was true and accurate in all material respects as of the date provided to Landlord or such appraiser. Notwithstanding the provisions of clause (iii) above, Tenant may take the position that it is the owner of a the Leased Property Premises for federal income tax purposes if Tenant provides to Landlord an opinion of independent tax counsel that such treatment is required by law, and Landlord consents to such treatment, which consent shall not be unreasonably withheld, conditioned or delayed or to the extent required as a result of the Internal Revenue Service making a claim or adjustment against Tenant in connection with such tax reporting, and tax counsel (or Tenant’s 's outside accounting firm) has concluded that such Internal Revenue Service claim or adjustment has a reasonable basis. If as a result of an Event of Default, or the misrepresentation of or breach by Tenant of any of the warranties, representations and covenants set forth in clause (a) of this Paragraph 30, the Depreciation Deductions are lost, disallowed, eliminated, reduced, recaptured, compromised, delayed or otherwise made unavailable to Landlord in computing its liability for federal income tax (a "Deduction Loss"), or, if as a result of the occurrence of an Event of Default, Landlord is required to include in its income from this Lease amounts other than Anticipated Lease Income (an "Inclusion", any Inclusion or Deduction Loss referred to as a "Loss"), subject to clause (c) of this Paragraph 30, Tenant shall make the Tax Indemnity Payment to Landlord in accordance with this Paragraph 30. The "Tax Indemnity Payment" shall be the amount that is required to be paid to Landlord in order to insure that Landlord's after-tax net return from this Lease (the "Net Return") will be equal to, but no greater than, the Net Return Landlord expected to receive as of the Commencement Date (the "Expected Net Return"). The amount of the Tax Indemnity Payment shall be computed using the same methodology and assumptions used in computing the Expected Net Return, including without limitation, that the Depreciation Deductions are Landlord's only tax deductions with respect to this Lease, that Landlord is able to fully utilize the Depreciation Deductions and, in the case of Inclusions, is fully taxable on its net income at the maximum federal income tax rate then in effect for corporations. If Tenant requests that the amount of the Tax Indemnity Payment be verified, Tenant and Landlord shall appoint a mutually acceptable unrelated recognized lease broker or lease advisor (such acceptance not to be unreasonably withheld) to confirm the calculations of the Tax Indemnity Payment. Landlord shall provide such broker or advisor with the methodology and assumptions used in computing the Expected Net Return, as well as all other information utilized by Landlord in computing the Tax Indemnity Payment, provided that such broker or advisor agrees to maintain the confidentiality of such information (including from Tenant) pursuant to a written agreement reasonably acceptable to Landlord. The conclusion of such broker or advisor shall be conclusive and binding on Landlord and Tenant with respect to the related Tax Indemnity Payment. If such broker or advisor concludes that Landlord's calculation of the Tax Indemnity Payment is correct or is lower than the correct Tax Indemnity Payment, Tenant shall pay for the costs and expenses of such broker or advisor; if such broker or advisor concludes that Landlord's calculation of the Tax Indemnity Payment is too high, Landlord shall pay the costs and expenses of such broker or advisor. Tenant shall pay to Landlord the Tax Indemnity Payment within 30 days of receiving written notice from Landlord describing the Loss and the calculation of the Tax Indemnity Payment; provided, however that Tenant shall not be required to pay the Tax Indemnity Payment with respect to any Loss so long as such Loss is being contested pursuant to this Paragraph 30. Landlord shall promptly notify Tenant in writing of any actual or proposed claim, adjustment or other action of any tax authority received by Landlord in writing with respect to which Tenant may be required to provide indemnification under this Paragraph 30 ("Proposed Adjustment") (but failure of Landlord to so notify Tenant shall not relieve Tenant of its obligations hereunder except to the extent that Tenant's contest rights hereunder are materially adversely affected). If Tenant shall request in writing within sixty (60) days after Landlord's notice described above that the Proposed Adjustment be contested (or such shorter period specified in Landlord's notice as the time period within which Landlord is required by the applicable Governmental Authority to take action), Landlord shall contest the Proposed Adjustment and will not settle any contest thereof without the consent of Tenant, which consent shall not be unreasonably withheld; provided, however, that: (i) prior to taking such action, Tenant shall have furnished Landlord with an opinion of independent tax advisor chosen by Tenant and reasonably acceptable to Landlord, to the effect that Landlord has a reasonable possibility of success in contesting the claim; (ii) prior to taking such action, Tenant shall have (A) acknowledged its obligation to indemnify Landlord hereunder in the event Landlord does not prevail in such contest and (B) agreed to reimburse Landlord promptly on demand (or, if so requested by Landlord, in advance) for all reasonable out-of-pocket costs and expenses that Landlord incurs in connection with contesting such claim, including without limitation reasonable attorneys' and accountants' fees and expenses; (iii) no Event of Default shall exist and be continuing; (iv) Landlord shall not be obligated to contest any proposed amount that is less than $100,000; and (v) Landlord shall in all events control the contest, and Tenant shall not have any right to inspect the books and records of Landlord, but shall have reasonable opportunity to review and comment on portions of documentation, protests, memoranda or briefs (which may be redacted portions) relating exclusively to a Proposed Adjustment. In the event Landlord pays the tax claimed and then seeks a refund, Landlord may require Tenant to advance funds sufficient to pay the tax that would be indemnified by Tenant hereunder if the refund claim were resolved adversely to Landlord. To the extent the refund claim is successful, the refund received from the taxing authority and attributable to funds advanced by Tenant shall be refunded to Tenant, including any interest actually received and fairly attributable to amounts advanced by Tenant, unless the refund is needed to pay an indemnity. Notwithstanding anything to the contrary in this Xxxxxxxxx 00, Xxxxxxxx may at any time decline to take any further action with respect to a Proposed Adjustment or may settle any contest without the consent of Tenant; provided, however, that if Tenant has properly requested such action pursuant to this Xxxxxxxxx 00, Xxxxxxxx shall notify Tenant in writing that Landlord waives its right to any indemnity payment by Tenant (other than with respect to the expenses of the contest incurred prior to such notice) that Tenant would otherwise be obligated to pay pursuant to this Paragraph 30 in respect of such adjustment, including any indemnities arising from such adjustment in subsequent years or that would arise by reason of the fact that the subject matter of such adjustment is of a continuing nature. In the case of any such waiver by Landlord of its rights to an indemnity payment from Tenant, Landlord shall return to Tenant any amounts previously paid by Tenant to Landlord for expenses or costs related to the contest (to the extent not yet expended) and, if applicable, any amounts paid by Tenant for taxes with respect to which Landlord has waived its right to an indemnity (plus interest on such tax payment at the rate then applicable under the Code to refunds of federal income taxes). For purposes of this Paragraph 30, "Landlord" shall be deemed to include the consolidated Federal taxpayer group of which Landlord is a member. If as a result of a Tax Loss for which Tenant has paid an indemnity hereunder, Landlord shall actually realize any federal, state or local income tax savings that it would not have realized but for such Tax Loss (or the event or circumstance giving rise thereto), which tax savings have not previously been taken into account in computing the amount of the Tax Indemnity Payment hereunder, then Landlord shall promptly pay to Tenant an amount equal to the sum of (A) the amount of such tax savings and (B) the amount of any additional federal, state and local income tax savings as a result of any payment made pursuant to this sentence; provided, however, Landlord shall not be required to make any such payment to the extent that the cumulative amount of such payments would exceed the amount of all Tax Indemnity Payment by Tenant to Landlord pursuant to Paragraph 30 with respect to such Tax Loss. If for any reason any tax benefit or savings taken into account in computing the amount of any Tax Indemnity Payment or any payment to the Tenant pursuant to this Paragraph 30, shall be lost or otherwise determined to be unavailable, such loss or unavailability shall be treated as a Loss for which Tenant is required to indemnify the Landlord under this Paragraph 30. Landlord shall act in good faith in filing its returns, dealing with tax authorities and pursuing tax benefits and savings that would, in each case, minimize Tenant's indemnity obligations hereunder. Notwithstanding anything herein to the contrary, the provisions of this Paragraph 30 shall survive the earlier termination of this Lease.

Special Tax Indemnity. (a) Tenant hereby represents, warrants and covenants to Landlord as follows: (i) during the Term, Tenant will not construct or install any component, improvement, alteration, or addition on any the Leased PropertyPremises, without prior written consent from Landlord, if such construction or installation would cause such the Leased PropertyPremises, or any part thereof, to be “limited use property,” as such term is used in Section 5 of Revenue Procedure 2001-28, (ii) Tenant is not a “tax-exempt entity” within the meaning of Section 168(h)(2) of the Code and will not take any action that would cause any the Leased PropertyPremises, or any part thereof, to constitute “tax-exempt use property” within the meaning of Section 168(h) of the Code; (iii) neither Tenant nor any Affiliate will claim the Depreciation Deductions or otherwise take the position that it is the owner of any the Leased PropertyPremises, or any part thereof, for federal income tax purposes; and (iv) as of the Commencement Date, no Leased Property will require any improvement, modification or addition in order to be rendered complete for its intended use by Tenant; and (v) to the best of Tenant’s knowledge, all written information of a factual nature with respect to any the Leased Property Premises that was provided to Landlord or an appraiser engaged by Landlord to appraise such the Leased Property Premises by or on behalf of Tenant or any Affiliate of Tenant was true and accurate in all material respects as of the date provided to Landlord or such appraiser. Notwithstanding the provisions of clause (iii) above, Tenant may take the position that it is the owner of a the Leased Property Premises for federal income tax purposes if Tenant provides to Landlord an opinion of independent tax counsel that such treatment is required by law, and Landlord consents to such treatment, which consent shall not be unreasonably withheld, conditioned or delayed or to the extent required as a result of the Internal Revenue Service making a claim or adjustment against Tenant in connection with such tax reporting, and tax counsel (or Tenant’s outside accounting firm) has concluded that such Internal Revenue Service claim or adjustment has a reasonable basis.