Common use of Tax Ownership Clause in Contracts

Tax Ownership. The Lessor represents and warrants that it will not, prior to the termination of this Lease, claim ownership of (or any tax benefits, including depreciation, with respect to) the Property for any income tax purposes, it being understood that the Lessee is and will remain the owner of the Property for such income tax purposes until the termination of this Lease. If, notwithstanding the income tax intentions of the parties as set forth herein, the Lessor actually receives any income tax deductions, reductions in income tax or other income tax benefit as a result of any claim for, or recharacterization requiring such party to take, any tax benefits attributable to ownership of the Property for income tax purposes, the Lessor shall pay to the Lessee, together with an amount equal to any reduced Taxes payable by such Tax Indemnitee as a result of such payment, the amount of such income tax savings actually realized by the Lessor (less the amount of any anticipated increase in income tax which the Lessor determines is currently payable as a result of such claim or recharacterization), provided that the Lessee shall agree to reimburse the Lessor for any subsequent increase in the Lessor's income taxes resulting from such claim or recharacterization not taken into account in the payment made to the Lessee, up to the amount paid to the Lessee by the Lessor. The parties agree that this Section 26.5(g) is intended to require a payment to the Lessee if and only if the Lessor shall have actually received an unanticipated tax savings with respect to the Property that would not have been received if the Lessor had advanced funds to the Lessee in the form of a loan secured by the Property in an amount equal to the Lease Balance. Nothing in this Section 26.5(g) shall be construed to require the Lessor to take any affirmative action to realize any tax savings if in its good faith judgment such action may have a material adverse affect on the Lessor.

Tax Ownership. The Lessor represents and warrants that it will ------------- not, prior to the termination of this Lease, claim ownership of (or any tax benefits, including depreciation, with respect to) the Property for any income tax purposes, it being understood that the Lessee is and will remain the owner of the Property for such income tax purposes until the termination of this Lease. If, notwithstanding the income tax intentions of the parties as set forth herein, the Lessor actually receives any income tax deductions, reductions in income tax or other income tax benefit as a result of any claim for, or recharacterization requiring such party to take, any tax benefits attributable to ownership of the Property for income tax purposes, the Lessor shall pay to the Lessee, together with an amount equal to any reduced Taxes payable by such Tax Indemnitee as a result of such payment, the amount of such income tax savings actually realized by the Lessor (less the amount of any anticipated increase in income tax which the Lessor determines is currently payable as a result of such claim or recharacterization), provided that the Lessee shall agree to reimburse the -------- Lessor for any subsequent increase in the Lessor's income taxes resulting from such claim or recharacterization not taken into account in the payment made to the Lessee, up to the amount paid to the Lessee by the Lessor. The parties agree that this Section 26.5(g) is intended to require a payment to --------------- the Lessee if and only if the Lessor shall have actually received an unanticipated tax savings with respect to the Property that would not have been received if the Lessor had advanced funds to the Lessee in the form of a loan secured by the Property in an amount equal to the Lease Balance. Nothing in this Section 26.5(g) shall be construed to require the Lessor to --------------- take any affirmative action to realize any tax savings if in its good faith judgment such action may have a material adverse affect on the Lessor.

Tax Ownership. The Lessor represents and warrants that it will not, prior to the termination of this Leasetermination, claim ownership of (or any tax benefits, including depreciation, with respect to) the Property Leased Assets for any income tax purposes, it being understood that the Lessee is and will remain the owner of the Property Leased Assets for such income tax purposes until the termination of this Lease. If, notwithstanding the income tax intentions of the parties as set forth herein, the Lessor actually receives any income tax deductions, reductions in income tax or other income tax benefit as a result of any claim for, or recharacterization requiring such party to take, any tax benefits attributable to ownership of the Property Leased Assets for income tax purposes, the Lessor shall pay to the Lessee, together with an amount equal to any reduced Taxes payable by such Tax Indemnitee as a result of such payment, Lessee the amount of such income tax savings actually realized by the Lessor (less the amount of any anticipated increase in income tax which the Lessor determines is currently payable as a result of such claim or recharacterization), provided that the Lessee shall agree to reimburse the Lessor for any subsequent increase in the Lessor's income taxes resulting from such claim or recharacterization not taken into account in the payment made to the Lessee, up to the amount paid to the Lessee by the Lessor. The parties agree that this Section 26.5(g26.4(g) is intended to require a payment to the Lessee if and only if the Lessor shall have actually received an unanticipated tax savings with respect to the Property Leased Assets that would not have been received if the Lessor had advanced funds to the Lessee in the form of a loan secured by the Property Leased Assets in an amount equal to the Lease Balanceaggregate amount of Advances made with respect to such Leased Assets. Nothing in this Section 26.5(g26.4(g) shall be construed to require the Lessor to take any affirmative action to realize any tax savings if in its good faith judgment such action may have a material adverse affect on the Lessor.

Tax Ownership. The Lessor Each Tax Indemnitee represents and warrants that that, except as required by a Governmental Authority, it will not, prior to the termination of this the Lease, claim ownership of (or any tax benefits, including depreciation, with respect to) the Property for any income tax purposes, it being understood that the Lessee is and will remain the owner of the Property for such income tax purposes until the termination of this the Lease. IfThe Lessee represents and warrants to each Indemnitee that, notwithstanding for tax purposes, the income tax intentions Lessee will report for the transactions contemplated by the Operative Documents as indebtedness of the parties as set forth hereinLessee from the Lessor maturing on the Expiration Date and bearing interest at a rate equivalent to the interest on the Loans, Return on Capital and Yield on the Lessor Amounts. Without limiting any other indemnification obligation of the Lessee under any of the Operative Documents, the Lessor actually receives Lessee indemnifies and holds harmless, on an After Tax Basis, the Lessor, the Purchasers and the Lenders from any and all loss, cost, expense or damages suffered or incurred by reason of the Lease not being treated as indebtedness of the Lessee for purposes of federal income tax deductionstaxation; provided, reductions in income tax or other income tax benefit as a result however, that (i) Purchasers and the Lenders shall promptly notify Lessee of any claim for, asserted by any Governmental Authority with respect to the Purchasers or recharacterization requiring the Lenders or any proceeding commenced against a Purchaser or a Lender pursuant to which such party to take, any tax benefits attributable to ownership Governmental Authority contends that the Lease should not be treated as such indebtedness of the Property Lessee for purposes of federal income taxation, (ii) the Lessee shall have the right to consult with the Purchasers or the Lenders with respect to the contest of such claim or proceeding for federal income tax purposes, regardless of the Lessor amount, if any, potentially in controversy, provided, however, that the Purchasers or the Lenders shall pay retain the right to settle or resolve the Lesseeclaim or proceeding in its exclusive discretion, together with an amount equal to any reduced Taxes payable and (iii) the foregoing indemnification obligation of the Lessee shall be determined on the basis of the excess, if any, of the aggregate loss, cost, expense or damage suffered or incurred by such Tax Indemnitee the Purchasers or the Lenders if the Lease is not treated as a result indebtedness of such payment, the amount of such Lessee for federal income tax savings actually realized by the Lessor purposes (less including any costs incurred in contesting such dispute) over the amount of any anticipated increase in such aggregate loss, cost, expense or damage (including federal income tax which tax) that would have been suffered or incurred by the Lessor determines is currently payable Purchasers or the Lenders if the Lease were treated as a result indebtedness of such claim or recharacterization), provided that the Lessee shall agree to reimburse the Lessor for any subsequent increase in the Lessor's income taxes resulting from such claim or recharacterization not taken into account in the payment made to the Lessee, up to taking into account the amount paid to the Lessee actual utilization by the Lessor. The parties agree Purchasers or the Lenders, as applicable, of any deduction or credits (it being understood that this Section 26.5(g) is intended the Purchasers and the Lenders are not expected to require a payment be able to the Lessee if and only if the Lessor shall have actually received an unanticipated tax savings with respect to the Property that would not have been received if the Lessor had advanced funds to the Lessee in the form of a loan secured by the Property in an amount equal to the Lease Balance. Nothing in this Section 26.5(g) shall be construed to require the Lessor to take any affirmative action to realize any tax savings if in its good faith judgment utilize such action may have a material adverse affect on the Lessordeductions or credits).

Tax Ownership. The Lessor Each Indemnitee represents and warrants that it will not, prior to the termination of this the Lease, claim ownership of (or any tax benefits, including depreciation, with respect topredicated upon ownership of) the Property Equipment for any income tax purposes, it being understood that the Lessee is and will remain the owner of the Property Equipment for such income tax purposes until the termination of this the Lease. If, notwithstanding the income tax intentions of the parties as set forth herein, the Lessor any Indemnitee actually receives any income tax deductions, reductions in income tax or other income tax benefit as a result of any claim for, or recharacterization requiring such party to take, any tax benefits attributable to ownership of the Property Equipment for income tax purposes, the Lessor and provided that no Lease Event of Default in continuing, such Indemnitee shall pay to the Lessee, together with an amount equal to any reduced Taxes payable by such Tax Indemnitee as a result of such payment, the amount of such income tax savings actually realized by the Lessor such Indemnitee (less the amount of any anticipated increase in income tax which the Lessor determines that is currently payable as a result of such claim or recharacterization), provided that the Lessee shall agree to reimburse the Lessor such Indemnitee for any subsequent increase in the Lessorsuch Indemnitee's income taxes resulting from such claim or recharacterization not taken into account in the payment made to the Lessee, up to the net amount paid to the Lessee by the Lessoreach Indemnitee. The parties agree that this Section 26.5(g8.1(g) is intended to require a payment to the Lessee if and only if the Lessor each Indemnitee shall have actually received an unanticipated tax savings with respect to the Property Equipment that would not have been received if the Lessor each Indemnitee had advanced funds to the Lessee in the form of a loan secured by the Property Equipment in an amount equal to the Lease BalanceEquipment Cost. Nothing in this Section 26.5(g) 8.1 shall be construed to require the Lessor any Indemnitee to take any affirmative action to realize any tax Tax savings or Tax benefit if in its good faith reasonable judgment such action may have a material an adverse affect effect on such Indemnitee (including such action or Tax position being or being viewed as inconsistent with any other action or Tax position claimed by such Indemnitee for the Lessorrelevant period or periods).

Tax Ownership. The Lessor Each Tax Indemnitee represents and warrants that it will not, prior to the termination of this the Master Lease, claim ownership of (or any tax benefits, including depreciation, with respect to) the any Property for any income tax purposes, it being understood that the Lessee is and will remain the owner of the applicable Property for such income tax purposes until the termination of this the Master Lease. If, notwithstanding the income tax intentions of the parties as set forth herein, the Lessor any Tax Indemnitee actually receives any income tax deductions, reductions in income tax or other income tax benefit as a result of any claim for, or recharacterization requiring such party to take, any tax benefits attributable to ownership of the any Property for income tax purposes, the Lessor such Tax Indemnitee shall pay to the Lessee, together with an amount equal to any reduced Taxes payable by such Tax Indemnitee as a result of such payment, the amount of such income tax savings actually realized by the Lessor such Tax Indemnitee (less the amount of any anticipated increase in income tax which the Lessor such Tax Indemnitee determines is currently payable as a result of such claim or recharacterization), provided that the Lessee shall agree to reimburse the Lessor such Tax Indemnitee for any subsequent increase in the Lessorsuch Tax Indemnitee's income taxes resulting from such claim or recharacterization not taken into account in the payment made to the Lessee, up to the net amount paid to the Lessee by the Lessoreach Tax Indemnitee. The parties agree that this Section 26.5(g13.5(g) is intended to require a payment to the Lessee if and only if the Lessor each Tax Indemnitee shall have actually received an unanticipated tax savings with respect to the any Property that would not have been received if the Lessor each Tax Indemnitee had advanced funds to the Lessee in the form of a loan secured by the such Property in an amount equal to the Lease Balanceapplicable Property Cost. Nothing in this Section 26.5(g13.5(g) shall be construed to require the Lessor each Tax Indemnitee to take any affirmative action to realize any tax savings if in its good faith reasonable judgment such action may have a material adverse affect on the Lessoreach Tax Indemnitee.

Tax Ownership. The Lessor Each Tax Indemnitee represents and warrants that except as actually required by law it will not, prior to the termination of this Lease, (i) not claim ownership of (or any tax benefits, including depreciation, with respect to) the Property for any income tax purposes, it being understood that the Lessee is and will remain the owner of the Property leased under the Master Lease for such income tax purposes until and (ii) treat all Notes and all portions of the termination Equity Investment as Indebtedness of the Lessee for federal income tax purposes; provided that this Leasesentence shall not preclude the Lessor from claiming ownership of, and any tax benefits with respect to, the Property for periods beginning after (x) the Property has been returned to the Lessor pursuant to the Lessee's exercise of the Remarketing Option or (y) the Lessor has exercised remedies under Section 19 of the Master Lease and foreclosed or otherwise sold the Property pursuant to such exercise. If, notwithstanding the income tax intentions of the parties as set forth herein, the Lessor any Tax Indemnitee actually receives any income tax deductions, reductions in income tax or other income tax benefit benefits (collectively, "Income Tax Savings") as a result of any claim for, or recharacterization requiring such party to take, any tax benefits attributable to ownership of the Property for income tax purposes, the Lessor such Tax Indemnitee shall pay to the LesseeGuarantor, together with an amount equal to any reduced Taxes payable by such Tax Indemnitee as a result of such payment, the amount of such income tax savings Income Tax Savings actually realized by the Lessor such Tax Indemnitee (less the amount of any anticipated increase in income tax which the Lessor determines is currently payable as a result of such claim or recharacterization), provided that the Guarantor and the Lessee shall agree to reimburse the Lessor such Tax Indemnitee for any subsequent increase in the Lessorsuch Tax Indemnitee's income taxes resulting from such claim or recharacterization not taken into account in the payment made to the LesseeGuarantor, up to the net amount paid to the Lessee Guarantor by the Lessoreach Tax Indemnitee and provided further, that no Default or Event of Default shall have occurred and be continuing. The parties agree that this Section 26.5(g13.4(g) is intended to require a Tax Indemnitee to make a payment to the Lessee Guarantor if and only if the Lessor such Tax Indemnitee shall have actually received an any net unanticipated tax savings Income Tax Savings with respect to the Property that would not have been received if the Lessor such Tax Indemnitee had advanced funds to the Lessee in the form of under an arrangement properly characterized for federal income tax purposes as a loan secured by the thy Property in an amount equal to such Tax Indemnitee's portion of the Outstanding Lease Balance. Nothing in this Section 26.5(g13.4(g) shall be construed to require the Lessor any Tax Indemnitee to take any affirmative action to realize any tax savings Income Tax Savings if in its sole discretion, exercised in good faith judgment faith, such action may have a material adverse affect effect on such Tax Indemnitee (including as a result of such position being or being viewed as materially inconsistent with any other tax position claimed by such Tax Indemnitee for the Lessorrelevant period or periods).

Tax Ownership. The Lessor Each Tax Indemnitee represents and warrants that it will not, prior to the termination of this the Master Lease, claim ownership of (or any tax benefits, including depreciation, with respect to) the any Property for any income tax purposes, it being understood that the Lessee is and will remain the owner of the applicable Property for such income tax purposes until the termination of this the Master Lease. If, notwithstanding the income tax intentions of the parties as set forth herein, the Lessor any Tax Indemnitee actually receives any income tax deductions, reductions in income tax or other income tax benefit as a result of any claim for, or recharacterization requiring such party to take, any tax benefits attributable to ownership of the any Property for income tax purposes, the Lessor such Tax Indemnitee shall pay to the Lessee, together with an amount equal to any reduced Taxes payable by such Tax Indemnitee as a result of such payment, the amount of such income tax savings actually realized by the Lessor such Tax Indemnitee (less the amount of any anticipated increase in income tax which the Lessor such Tax Indemnitee determines is currently payable as a result of such claim or recharacterization), provided PROVIDED that the Lessee shall agree to reimburse the Lessor such Tax Indemnitee for any subsequent increase in the Lessorsuch Tax Indemnitee's income taxes resulting from such claim or recharacterization not taken into account in the payment made to the Lessee, up to the net amount paid to the Lessee by the Lessoreach Tax Indemnitee. The parties agree that this Section 26.5(gSECTION 13.5(g) is intended to require a payment to the Lessee if and only if the Lessor each Tax Indemnitee shall have actually received an unanticipated tax savings with respect to the any Property that would not have been received if the Lessor each Tax Indemnitee had advanced funds to the Lessee in the form of a loan secured by the such Property in an amount equal to the Lease Balanceapplicable Property Cost. Nothing in this Section 26.5(gSECTION 13.5(g) shall be construed to require the Lessor each Tax Indemnitee to take any affirmative action to realize any tax savings if in its good faith reasonable judgment such action may have a material adverse affect on the Lessoreach Tax Indemnitee.

Tax Ownership. The Lessor represents Each Participant represents, warrants and warrants covenants that it will not, prior to the termination of this the Master Lease, claim ownership of (or any tax benefits, including depreciation, with respect to) the any Property for any income tax purposes, it being understood that the each Lessee is and will remain the owner of each Property leased by it under the Property Master Lease for such income tax purposes until the termination of this the Master Lease. If, notwithstanding the income tax intentions of the parties as set forth hereinin this SECTION 11.5(d) and in SECTION 5.1 hereof, the Lessor any Participant actually receives any income tax deductions, reductions in income tax or other income tax benefit as a result of any claim fora recharacterization by a federal, state or recharacterization local taxing authority requiring such party to take, take any tax benefits attributable to ownership of the Property for income tax purposes, the Lessor such Participant shall pay to the applicable Lessee, together with an amount equal to any reduced Taxes payable by such Tax Indemnitee as a result of such payment, the amount of such income tax savings actually realized by the Lessor such Participant (less the amount of any anticipated increase in income tax which the Lessor Participant determines is currently payable as a result of such claim or recharacterization), provided PROVIDED that the applicable Lessee shall agree to reimburse the Lessor such Participant for any subsequent increase in the Lessorsuch Participant's income taxes resulting from such claim or recharacterization not taken into account in the payment made to the such Lessee, up to the amount paid to the such Lessee by the Lessorsuch Participant. The parties agree that this Section 26.5(gSECTION 11.5(d) is intended to require a payment to the a Lessee if and only if the Lessor a Participant shall have actually received an unanticipated tax savings with respect to the a Property that would not have been received if the Lessor had advanced funds to the such Lessee in the form of a loan secured by the Property leased by such Lessee in an amount equal to the Lease Balanceapplicable Property Cost. Nothing in this Section 26.5(gSECTION 11.5(d) shall be construed to require the Lessor a Participant to take any affirmative action to realize any tax savings if in its good faith judgment such action may have a material adverse affect on the Lessorsuch Participant.

Tax Ownership. The Lessor represents and warrants that it ------------- will not, prior to the termination of this Lease, claim ownership of (or any tax benefits, including depreciation, with respect to) the Property for any income tax purposes, it being understood that the Lessee is and will remain the owner of the Property for such income tax purposes until the termination of this Lease. If, notwithstanding the income tax intentions of the parties Parties as set forth herein, the Lessor actually receives any income tax deductions, reductions in income tax or other income tax benefit as a result of any claim for, or recharacterization requiring such party to take, any tax benefits attributable to ownership of the Property for income tax purposes, the Lessor shall pay to the Lessee, together with an amount equal to any reduced Taxes payable by such Tax Indemnitee as a result of such payment, the amount of such income tax savings actually realized by the Lessor (less the amount of any anticipated increase in income tax which the Lessor determines is currently payable as a result of such claim or recharacterization), provided that the Lessee shall agree to reimburse the Lessor for any -------- subsequent increase in the Lessor's income taxes resulting from such claim or recharacterization not taken into account in the payment made to the Lessee, up to the amount paid to the Lessee by the Lessor. The parties agree that this Section 26.5(g) is intended to require a payment --------------- to the Lessee if and only if the Lessor shall have actually received an unanticipated tax savings with respect to the Property that would not have been received if the Lessor had advanced funds to the Lessee in the form of a loan secured by the Property in an amount equal to the Lease Balance. Nothing in this Section 26.5(g) shall be construed to require --------------- the Lessor to take any affirmative action to realize any tax savings if in its good faith judgment such action may have a material adverse affect on the Lessor.

Tax Ownership. The Lessor Each Tax Indemnitee represents and warrants that it will not, prior to the termination of this the Master Lease, claim ownership of (or any tax benefits, including depreciation, with respect to) the any Property for any income tax purposes, it being understood that the each Lessee is and will remain the owner of the applicable Property for such income tax purposes at least until the termination of this the Master Lease. If, notwithstanding the income tax intentions of the parties as set forth herein, the Lessor any Tax Indemnitee actually receives any income tax deductions, reductions in income tax or other income tax benefit as a result of any claim for, or recharacterization or other event or circumstance requiring such party to take, any tax benefits attributable to ownership of the any Property for income tax purposes, the Lessor such Tax Indemnitee shall pay to the applicable Lessee, together with an amount equal to any reduced Taxes payable by such Tax Indemnitee as a result of such payment, the amount of such income tax savings actually realized by the Lessor such Tax Indemnitee (less the amount of any anticipated increase in income tax which the Lessor such Tax Indemnitee determines is currently payable as a result of such claim or recharacterization), provided that the each Lessee shall agree to reimburse the Lessor such Tax Indemnitee for any subsequent increase in the Lessorsuch Tax Indemnitee's income taxes resulting from such claim or recharacterization not taken into account in the payment made to the such Lessee, up to the net amount paid to the such Lessee by the Lessoreach Tax Indemnitee. The parties agree that this Section 26.5(g13.5(g) is intended to require a payment to the a Lessee if and only if the Lessor a Tax Indemnitee shall have actually received an unanticipated tax savings with respect to the any Property that would not have been received if the Lessor such Tax Indemnitee had advanced funds to the such Lessee in the form of a loan secured by the such Property in an amount equal to the Lease Balanceapplicable Property Cost. Nothing in this Section 26.5(g) Each Tax Indemnitee shall be construed to require the Lessor required in good faith to take any affirmative action to realize any such tax savings except if in its good faith reasonable judgment such action may will have a material adverse affect on the Lessorsuch Tax Indemnitee.

Tax Ownership. The Lessor Each Participant represents and warrants that it will not, prior to the termination of this Leasethe Master Lease with respect to each Property, claim ownership of (or any tax benefits, including depreciation, with respect to) the Property for any income tax purposes, it being understood that the Lessee is and will remain the owner of the Property for such income tax purposes until the termination of this Leasethe Master Lease with respect to each Property. If, notwithstanding the -43- 76 income tax intentions of the parties as set forth hereinin this Section d and in Section 1 hereof, the Lessor any Participant actually receives any income tax deductions, reductions in income tax or other income tax benefit as a result of any claim for, or recharacterization requiring such party to take, any tax benefits attributable to ownership of the Property for income tax purposes, the Lessor such Participant shall pay to the Lessee, together with an amount equal to any reduced Taxes payable by such Tax Indemnitee as a result of such payment, the amount of such income tax savings actually realized by the Lessor such Participant (less the amount of any anticipated increase in income tax which the Lessor Participant determines is currently payable as a result of such claim or recharacterization), provided that the Lessee shall agree to reimburse the Lessor such Participant for any subsequent increase in the Lessorsuch Participant's income taxes resulting from such claim or recharacterization not taken into account in the payment made to the Lessee, up to the amount paid to the Lessee by the Lessorsuch Participant. The parties agree that this Section 26.5(g) d is intended to require a payment to the Lessee if and only if the Lessor a Participant shall have actually received an unanticipated tax savings with respect to the a Property that would not have been received if the Lessor had advanced funds to the Lessee in the form of a loan secured by any of the Property Properties in an amount equal to the Lease Balanceapplicable Property Costs. Nothing in this Section 26.5(g) d shall be construed to require the Lessor a Participant to take any affirmative action to realize any tax savings if in its good faith judgment such action may have a material adverse affect on the Lessorsuch Participant.