Taxes Excluded. The indemnity provided for in Section 14(a) above shall not extend to any Taxes not due in whole or part to: (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(a) above shall not extend to any of the following: (i) in the case of the Lessor and its respective successors, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by, the income, capital, franchises, excess profits or conduct of business (other than taxes which are in the nature of sales, use, value added, excise, license or property taxes) of such Indemnified Party imposed by the United States of America or any state or local or foreign government or other taxing authority (collectively, "Income Taxes") other than "Covered Income Taxes" (as such term is defined below); (ii) in the case of each Financier and the Security Trustee and their respective successors, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by income, receipts, capital, franchises or conduct of business of such Indemnified Party, other than such Taxes imposed by any taxing authority of any jurisdiction to the extent such Taxes exceed the amount that would have been imposed had the Aircraft never been operated to or used in such jurisdiction; (iii) Taxes relating to the Aircraft for any period after the expiration or early termination of the Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise of any remedies pursuant to Section 16 hereof following the occurrence of an Event of Default or pursuant to Exhibit D shall not be excluded from the indemnity provided for in Section 14(a) hereof; (iv) Taxes imposed against the Owner Trustee or Security Trustee with respect to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust Agreement; (v) as to any Indemnified Party, Taxes in respect of the Aircraft or the Operative Agreements which arise out of or are caused by the willful misconduct or gross negligence of such Indemnified Party, or the breach by such Indemnified Party of any express covenant, agreement or representation in the Operative Agreements; (vi) Taxes which become payable by reason of any transfer by an Indemnified Party of all or any portion of its interest in the Aircraft, the Mortgage, the Trust Estate, any interest in any Operative Agreement or shares of stock in an Indemnified Party (other than transfers which occur as a result of the exercise of any rights under Section 16 or Exhibit D hereof, or any remedies under the Mortgage); (vii) Income Taxes imposed on the Trust or the Owner Participant other than Covered Income Taxes; and (viii) Taxes imposed by way of deduction or withholding by the U.S. Federal Government on payments to a Person who is not a United States Person or, except for Covered Income Taxes, by any foreign government on payments to any Person (provided, that if in any case any such Taxes are imposed as a result of a change in a tax treaty after the date hereof that is not already published as a proposed change on the date hereof or on the date an Indemnified Party becomes an Indemnified Party, Lessee and the applicable Indemnified Parties agree to negotiate in good faith a restructuring of the transaction contemplated hereby to eliminate such Taxes without changing the economic terms of this transaction, but if such Taxes are not so eliminated within 90 days from the date of the imposition of such Taxes, Lessor may (unless Lessee agrees to extend the indemnity provided for in Section 14(a) above to cover such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition required under Section 13 hereof on the date so selected by Lessor in its notice of termination).
Appears in 3 contracts
Samples: Purchase Agreement (Atlantic Coast Airlines Inc), Purchase Agreement (Atlantic Coast Airlines Inc), Purchase Agreement (Atlantic Coast Airlines Inc)
Taxes Excluded. The indemnity provided for in Section 14(a7.1(b) above shall not extend to any Taxes not due in whole or part to: (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(a) above shall not extend to any of the followinginclude:
(i) in the case of the Lessor and its respective successorsas to any Equity Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by, the income, capital, franchises, excess profits or conduct of business (other than taxes which are in the nature of sales, use, value added, excise, license or property taxes) of such Indemnified Party any Income Tax imposed by the United States of America or federal government (but not excluding any state or local or foreign government or other taxing authority (collectively, "Income Taxes") other than "Covered Income Taxes" (as such term is defined belowTax required to make a payment on an After-Tax Basis);
(ii) in the case of each Financier and the Security Trustee and their respective successorsas to any Equity Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by income, receipts, capital, franchises or conduct of business of such Indemnified Party, other than such Taxes any Income Tax imposed by any state, local or foreign government or taxing authority of any jurisdiction or subdivision thereof; provided, however, that this exclusion shall not apply to the extent such Taxes (but not including Income Taxes imposed on net income) are attributable to (I) the use or location of any item of the Equipment or the activities of the Lessee or its Affiliates or any sublessee in the taxing jurisdiction, (II) the presence or organization of the Lessee or any sublessee in the taxing jurisdiction, (III) the status of the Lessee or any sublessee as a foreign entity or as an entity owned by a foreign person or (IV) 57 Participation Agreement (TRLI 2001-1B) Lessee or sublessee having made (or deemed to have made) payments to the Tax Indemnitee from the relevant jurisdiction; provided, further, however, that the preceding proviso shall not apply to any jurisdiction where the Owner Trust, the Owner Trustee (other than in its individual capacity) or the Owner Participant has its legal domicile or principal place of business (determined without regard to the transactions contemplated by the Operative Agreement);
(iii) as to any Equity Tax Indemnitee, any Tax that is imposed as a result of the sale, transfer or other disposition, by the Lessor or the Owner Participant of any of its rights with respect to any item of Equipment or the Owner Participant's interest in the Trust Estate unless such sale, transfer or other disposition is a result of an Event of Default, results from any substitution, repair or replacement of any item of Equipment under the Lease, or results from any sale, transfer or disposition required under the Lease (including but not limited to Section 10 of the Lease);
(iv) as to any Equity Tax Indemnitee, any Taxes to the extent they exceed the amount Taxes that would have been imposed had the Aircraft never been operated to an Equity Tax Indemnitee not transferred, sold or used disposed of its interest or rights in such jurisdiction;
(iii) Taxes relating to the Aircraft for any period after the expiration or early termination item of the Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise of any remedies pursuant Equipment to Section 16 hereof following the occurrence of an Event of Default or pursuant to Exhibit D shall not be excluded from the indemnity provided for in Section 14(a) hereof;
(iv) Taxes imposed against the Owner Trustee or Security Trustee with respect to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust Agreementa non-U.S. Person;
(v) as Taxes imposed on a Lender Tax Indemnitee with respect to any Indemnified Party, Taxes period after the payment in respect full of the Aircraft Equipment Notes; provided that the exclusion set forth in this clause (v) shall not apply to Taxes to the extent such Taxes relate to events occurring or matters arising prior to or simultaneously with the Operative Agreements which arise out applicable time of payment of the Equipment Notes or are caused relate to any payment made by the willful misconduct or gross negligence of Lessee after such Indemnified Party, or the breach by such Indemnified Party of any express covenant, agreement or representation in the Operative Agreementsdate;
(vi) as to any Tax Indemnitee, Taxes to the extent caused by any misrepresentation or breach of warranty or covenant by such Tax Indemnitee or a Related Party under any of the Operative Agreements or by the gross negligence or willful misconduct of such Tax Indemnitee or a Related Party;
(vii) as to any Lender Tax Indemnitee, Taxes which become payable as a result of a sale, assignment, transfer or other disposition (whether voluntary or involuntary) by reason of any transfer by an Indemnified Party such Lender Tax Indemnitee of all or any portion of its interest in the AircraftEquipment or any part thereof, the MortgagePledged Equipment or any part thereof, the Trust Estate, the Indenture Estate or any interest in any of the Operative Agreement Agreements or shares of stock in an Indemnified Party (rights created thereunder, other than transfers as a result of (A) the substitution, modification or improvement of the Equipment or any part thereof or the Pledged Equipment or any part thereof, (B) a modification to the Operative Agreements, or (C) a disposition which occur occurs as the result of the exercise of remedies upon a Lease Event of Default; provided, that, notwithstanding the foregoing, the Lessee shall not be obligated to indemnify any Lender Tax Indemnitee with respect to net income taxes imposed within the United States as the result of a 58 Participation Agreement (TRLI 2001-1B) sale, assignment, transfer or other disposition by such Lender Tax Indemnitee or any Taxes imposed as a result of the exercise status of any rights under Section 16 or Exhibit D hereof, or any remedies under the Mortgage)Lender Tax Indemnitee as other than a resident of the United States for tax purposes;
(viiviii) as to any Lender Tax Indemnitee, Taxes imposed as the result of such Lender Tax Indemnitee not being a resident of the United States for tax purposes;
(ix) as to any Lender Tax Indemnitee, Income Taxes or transfer taxes relating to any payments of principal, interest or Make Whole Amount, if any, on the Equipment Notes or the Pass Through Certificates paid to any such Tax Indemnitee that are imposed by (A) any other jurisdiction in which such Indemnitee is subject to such Taxes as a result of it or an Affiliate being organized in such jurisdiction or conducting activities in that jurisdiction unrelated to the transactions contemplated by the Operative Agreements, (B) the United States federal government or (C) any state or local government within the United States;
(x) Taxes to the extent directly resulting from or that would not have been imposed but for (x) in the case of Taxes imposed on or with respect to any Equity Tax Indemnitee, the existence of any Lessor Liens with respect to such Equity Tax Indemnitee, (y) in the case of Taxes imposed on or with respect to any Lender Tax Indemnitee, the existence of any Liens attributable to the Indenture Trustee or Liens attributable to the Pass Through Trustee;
(xi) Taxes imposed on a Tax Indemnitee to the extent that such Taxes would not have been imposed upon such Tax Indemnitee but for any failure of such Tax Indemnitee or a Related Party to comply with (x) any certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes, if such compliance is required under the laws or regulations of such jurisdiction to obtain or establish relief or exemption from or reduction in such Taxes and the Tax Indemnitee or such Related Party was eligible to comply with such requirement or (y) any other certification, information, documentation, reporting or other similar requirements under the Tax laws or regulations of the jurisdiction imposing such Taxes that would establish entitlement to otherwise applicable relief or exemption from such Taxes; provided, however, that the exclusion set forth in this clause (xii) shall not apply (I) if such failure to comply was due to a failure of the Lessee to provide reasonable assistance on request in complying with such requirement, (II) if, in the case of Taxes imposed on the Trust or Owner Participant, in the good faith judgment of the Owner Participant other than Covered Income Taxes; andthere is a risk of adverse consequence to the Owner Participant or any Affiliate from such compliance against which the Owner Participant is not satisfactorily indemnified, (III) in the case of Taxes imposed on the Owner Participant, if any such failure to comply on the part of the Owner Trustee was the result of the Owner Trustee's gross negligence or failure to act in accordance with instructions of the Owner Participant, or (IV) in the Participation Agreement (TRLI 2001-1B) case of any Tax Indemnitee, unless Lessee shall have given such Tax Indemnitee prior written notice of such requirements;
(viiixii) Taxes that are imposed by way with respect to any period after the earlier of deduction or withholding (x) return of the Equipment to the Lessor in accordance with, and at a time and place contemplated by the U.S. Federal Government on payments Lease (including the payment of all amounts due at such time) and (y) the termination of the Term pursuant to a Person who Section 6, 10, 11, 15 or 22 of the Lease and the discharge in full of Lessee's payment obligation's thereunder unless the Equipment is thereafter required to be returned, in which case, after such return; provided, however, that the exclusion set forth in this clause (xii) shall not a United States Person or, except for Covered Income Taxes, by any foreign government on payments apply to Taxes to the extent such Taxes relate to events occurring or matters arising prior to or simultaneously with such return or termination;
(xiii) as to any Person (providedLender Tax Indemnitee, that if Taxes in the nature of an intangible or similar tax upon or with respect to the value of the interest of such Lender Tax Indemnitee in the Indenture Estate, in any case any such Taxes are Equipment Note or Pass Through Certificate imposed as a result of a change such Lender Tax Indemnitee or any Affiliate of such Lender Tax Indemnitee being organized in, or conducting activities unrelated to the contemplated transactions in, the jurisdiction imposing such Taxes;
(xiv) Taxes imposed on the Owner Trustee or the Indenture Trustee that are on, based on or measured by any trustee fees for services rendered by such Tax Indemnitee in a tax treaty after its capacity as trustee under the date hereof that Operative Agreements;
(xv) Taxes imposed on any Tax Indemnitee, or any other person who, together with such Tax Indemnitee, is not already published treated as one employer for employee benefit plan purposes, as a proposed change on result of, or in connection with, any "prohibited transaction," within the date hereof or on the date an Indemnified Party becomes an Indemnified Party, Lessee and the applicable Indemnified Parties agree to negotiate in good faith a restructuring meaning of the transaction contemplated hereby to eliminate such provisions of the Code or regulations thereunder or as set forth in Section 406 of ERISA or the regulations implementing ERISA or Section 4975 of the Code or the regulations thereunder;
(xvi) Taxes without changing the economic terms of this transaction, but if for so long as (x) such Taxes are being contested in accordance with the provisions of Section 7.1(e) hereof, (y) the Lessee is in compliance with its obligations under Section 7.1(e), and (z) the payment of such Taxes is not so eliminated within 90 days from required pursuant to Section 7.1(e);
(xvii) Taxes as to which such Tax Indemnitee is indemnified pursuant to the date Tax Indemnity Agreement;
(xviii) any Taxes imposed on or with respect to any Certificateholder; and
(xix) Taxes imposed as a result of the imposition authorization or giving of any future amendments, supplements, waivers or consents with respect to 60 Participation Agreement (TRLI 2001-1B) any Operative Agreement other than (w) those which are legally required, (x) in connection with the exercise of remedies pursuant to Section 15 of the Lease, (y) such Taxes, Lessor may as have been proposed by the Lessee or consented to by the Lessee or (unless Lessee agrees z) those that are required pursuant to extend the indemnity provided for in Section 14(a) above to cover such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon terms of the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition required under Section 13 hereof on the date so selected by Lessor in its notice of termination)Operative Agreements.
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Taxes Excluded. The indemnity provided for in Section 14(a7.1 (b) above shall not extend to any Taxes not due in whole or part to: (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(a) above shall not extend to any of the followinginclude:
(i) in the case of the Lessor and its respective successorsas to any Equity Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by, the income, capital, franchises, excess profits or conduct of business (other than taxes which are in the nature of sales, use, value added, excise, license or property taxes) of such Indemnified Party any Income Tax imposed by the United States of America or federal government (but not excluding any state or local or foreign government or other taxing authority (collectively, "Income Taxes") other than "Covered Income Taxes" (as such term is defined belowTax required to make a payment on an After-Tax Basis);
(ii) in the case of each Financier and the Security Trustee and their respective successorsas to any Equity Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by income, receipts, capital, franchises or conduct of business of such Indemnified Party, other than such Taxes any Income Tax imposed by any state, local or foreign government or taxing authority of any jurisdiction or subdivision thereof (but not excluding an Income Tax required to make a payment on an After-Tax Basis); provided, however, that this exclusion shall not apply to the extent such Taxes relate directly or indirectly to (I) the use, location of any item of the Equipment or the activities of the Lessee in the taxing jurisdiction, (II) the presence or organization of the Lessee in the taxing jurisdiction, (III) any payment by or on behalf of the Lessee being made from the taxing jurisdiction, or (IV) the execution or delivery of any Operative Agreement by the Lessee in the taxing jurisdiction; provided, further, however, that the preceding proviso shall not apply to any Taxes that are solely attributable to the fact that the Owner Trust, the Owner Trustee (other than in its individual capacity) or the Owner Participant has its legal domicile or a principal place of business in the taxing jurisdiction (determined without regard to the transactions contemplated by the Operative Agreements);
(iii) as to any Equity Tax Indemnitee, any Tax that is imposed as a result of the voluntary sale, transfer or other disposition, or any involuntary sale, transfer or other disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Equity Tax Indemnitee is a debtor, by the Lessor or the Owner Participant of any of its rights with respect to any item of Equipment or the Owner Participant's interest in the Trust Estate unless such sale, transfer or other disposition is during the continuance of a Lease Event of Default or is otherwise pursuant to the Lessor's exercise of its rights under the Operative Agreements or is as a result of (x) any substitution, replacement, improvement, modification or addition to the Equipment or any portion thereof by the Lessee, a Sublessee, or a Related Person to the Lessee or Sublessee, (y) a requirement of the Lessee in the Operative Agreements or under applicable law, or (z) a purchase of the Equipment or any Unit thereof pursuant to the Lease or the other Operative Agreements;
(iv) as to any Equity Tax Indemnitee, any Taxes to the extent they exceed the amount Taxes that would have been imposed had the Aircraft never been operated to or used in if such jurisdiction;
(iii) Taxes relating to the Aircraft for any period after the expiration or early termination of the Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise of any remedies pursuant to Section 16 hereof following the occurrence of an Event of Default or pursuant to Exhibit D shall not be excluded from the indemnity provided for in Section 14(a) hereof;
(iv) Taxes imposed against the Owner Trustee or Security Trustee with respect to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust AgreementEquity Tax Indemnitee were a U.S. Person;
(v) as Taxes imposed on a Lender Tax Indemnitee, excluding the Policy Tax Indemnitee, with respect to any Indemnified Partyperiod after the payment in full of the Equipment Notes; provided that the exclusion set forth in this clause (v) shall not apply to Taxes to the extent such Taxes (I) relate directly or indirectly to events occurring or matters arising prior to or simultaneously with the date on which all of the principal of, Taxes interest on and all other amounts payable in respect of the Aircraft Equipment Notes have been paid in full or the Operative Agreements which arise out (II) result from a Lease Event of or are caused by the willful misconduct or gross negligence of such Indemnified Party, or the breach by such Indemnified Party of any express covenant, agreement or representation in the Operative AgreementsDefault that has occurred and is continuing;
(vi) Taxes imposed on the Policy Tax Indemnitee with respect to any period after the payment in full of all Equipment Notes, all Policy Provider Amounts and Policy Provider Reimbursement Amounts; provided that the exclusion set forth in this clause (vi) shall not apply to Taxes to the extent such Taxes (I) relate directly or indirectly to events occurring or matters arising prior or simultaneously with the date on which all of the principal of, interest on and other amounts payable in respect of the Equipment Notes, all Policy Provider Amounts and all Policy Provider Reimbursement Amounts have been paid in full or (II) result from a Lease Event of Default that has occurred and is continuing;
(vii) as to any Tax Indemnitee, Taxes to the extent caused by any misrepresentation or breach of warranty or covenant by such Tax Indemnitee or a Related Party of such Tax Indemnitee under any of the Operative Agreements (except to the extent such misrepresentations or breach is attributable to any act or omissions of the Lessee or any sublessee, transferee or assignee of the Lessee) or by the gross negligence or willful misconduct of such Tax Indemnitee or such Related Party;
(viii) as to any Lender Tax Indemnitee, Taxes that become payable as a result of a voluntary sale, assignment, transfer or other disposition, or any involuntary sale, transfer or other disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Lender Tax Indemnitee is a debtor, by reason of any transfer by an Indemnified Party such Lender Tax Indemnitee of all or any portion of its interest in the AircraftEquipment or any part thereof, the MortgageEquipment Notes, the Trust Estate, the Indenture Estate or any of the Operative Agreements or rights created thereunder; provided, however, that is this clause (viii) shall not apply in the case of any sale assignment, transfer or other disposition (whether voluntary of involuntary) which occurs as a result of or while a Lease Event of Default has occurred and is continuing or which occurs as a result of (v) the exercise of remedies for a Lease Event of Default, (w) any substitution, replacement, improvement, modification or addition to the Equipment or any portion thereof by a Lessee, Sublessee or a Related Person to the Lessee or Sublessee, (x) a requirement in the Operative Agreements or under applicable law, (y) a purchase of the Equipment or any Unit thereof pursuant to the Lease or the other Operative Agreements or (z) any assignment to the Policy Provider pursuant to the Policy Provider Documents;
(ix) as to any Lender Tax Indemnitee, Taxes imposed as the result of such Lender Tax Indemnitee not being a U.S. Person;
(x) as to any Lender Tax Indemnitee, Income Taxes or transfer taxes relating to any payments of principal of, interest on or Make Whole Amount or other amounts in respect thereof, if any, on the Equipment Notes or the Pass Through Certificates paid to such Tax Indemnitee provided, that this clause (x) should not be interpreted to prevent any payment from being made on an After-Tax Basis, and provided further that this clause (x) shall not apply to Taxes attributable to (I) the use or location of any item of Equipment or the activities of the Lessee in the taxing jurisdiction, (II) the presence or organization of the Lessee in the taxing jurisdiction or (III) the execution or delivery of any Operative Agreement in the taxing jurisdiction; provided, further, however, the preceding provision shall not apply to any jurisdiction where such Lender Tax Indemnitee has its legal domicile or shares a place of stock business (determined without regard to the transitions contemplated by the Operative Agreements);
(xi) Taxes to the extent directly resulting from or that would not have been imposed but for (x) in the case of Taxes imposed on or with respect to any Equity Tax Indemnitee, the existence of any Lessor Liens with respect to such Equity Tax Indemnitee, or (y) in the case of Taxes imposed on or with respect to any Lender Tax Indemnitee, the existence of any Liens attributable to the Indenture Trustee that are unrelated to the transactions contemplated by the Operative Agreements or Liens attributable to the Pass Through Trustee that are unrelated to the transactions contemplated by the Operative Agreements;
(xii) Taxes imposed on a Tax Indemnitee to the extent that such Taxes would not have been imposed upon such Tax Indemnitee but for any failure of such Tax Indemnitee or a Related Party of such Tax Indemnitee to comply with (x) any certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes, if such compliance is required under the laws or regulations of such jurisdiction to obtain or establish relief or exemption from or reduction in such Taxes and the Tax Indemnitee or such Related Party was eligible to comply with such requirement or (y) any other certification, information, documentation, reporting or other similar requirements under the Tax laws or regulations of the jurisdiction imposing such Taxes that would establish entitlement to otherwise applicable relief or exemption from such Taxes and the Tax Indemnitee or such Related Party was eligible to comply with such requirement; provided, however, that the exclusion set forth in this clause (xii) shall not apply (I) if such failure to comply was due to a failure of the Lessee to provide such Tax Indemnitee reasonable assistance on request in complying with such requirement, (II) if in the good faith judgment of such Tax Indemnitee there is a risk of adverse consequence to such Tax Indemnitee or any Affiliate from such compliance against which such Tax Indemnitee is not satisfactorily indemnified, or (III) in the case of any Tax Indemnitee, unless Lessee shall have given such Tax Indemnitee prior timely written notice of such requirements;
(xiii) as to the Equity Tax Indemnitee, Taxes that are imposed with respect to any period after both of the following shall have occurred: (x) the termination of the Lease Term pursuant to Section 6, 10, 11 or 22 of the Lease (unless the Equipment is thereafter required to be returned, in which case, after such return) and (y) the payment by the Lessee of all amounts due and owing by it to the Equity Tax Indemnitee under the Lease and other Operative Agreements; provided, however, that the exclusion set forth in this clause (xiii) shall not apply (I) to Taxes to the extent such Taxes relate to events occurring or matters arising prior to or simultaneously with such return or termination and (II) so long as a Lease Event of Default has occurred and is continuing;
(xiv) as to any Lender Tax Indemnitee, Taxes in the nature of an Indemnified Party intangible or similar tax upon or with respect to the value of the interest of such Lender Tax Indemnitee in the Indenture Estate, in any Equipment Note or Pass Through Certificate imposed as a result of such Lender Tax Indemnitee or any Affiliate of such Lender Tax Indemnitee being organized in, or conducting activities unrelated to the contemplated transactions in, the jurisdiction imposing such Taxes, provided however, that this exclusion shall not apply to the incremental amount of such taxes that arise from such Lender Tax Indemnitee's participation in the transactions contemplated herein;
(xv) Taxes imposed on the Owner Trustee, the Pass Through Trustee or the Indenture Trustee that are on, based on or measured by any trustee fees for services rendered by such Tax Indemnitee;
(xvi) Except as set forth in Section 7.2, Taxes imposed on any Tax Indemnitee, or any other than transfers person who, together with such Tax Indemnitee, is treated as one employer for employee benefit plan purposes, as a result of, or in connection with, any "prohibited transaction," within the meaning of the provisions of the Code or regulations thereunder or as set forth in Section 406 of ERISA or the regulations implementing ERISA or Section 4975 of the Code or the regulations thereunder;
(xvii) Taxes for so long as (x) such Taxes are being contested in accordance with the provisions of Section 7.1 (e) hereof, (y) the Lessee is in compliance with its obligations under Section 7.1(e), and (z) the payment of such Taxes is not required pursuant to Section 7.1(e); provided, however, that with respect to a Lender Tax Indemnitee this clause (xvii) shall only apply so long as the non-payment of the contested Tax does not result in any Lender Tax Indemnitee failing to receive all required payments when due under the Equipment Notes;
(xviii) as to any Equity Tax Indemnitee, Taxes as to which occur such Tax Indemnitee is indemnified pursuant to any Tax Indemnity Agreement;
(xix) any Taxes imposed on or with respect to any Certificateholder;
(xx) Taxes imposed on a Tax Indemnitee as a result of the authorization or giving of any future amendments, supplements, waivers or consents by such Tax Indemnitee with respect to any Operative Agreement other than (w) in connection with the exercise of any rights under remedies pursuant to Section 16 15 of the Lease or Exhibit D hereofwhile a Lease Event of Default has occurred and is continuing, (x) such as have been proposed by the Lessee or consented to by the Lessee in writing, (y) those that are required by applicable law or pursuant to the terms of the Operative Agreements, or (z) those that may be necessary or appropriate to, and are in conformity with, any remedies under amendment, supplement, waiver or consent proposed by the Mortgage)Lessee or consented to by the Lessee in writing;
(viixxi) Income Taxes imposed on under Section 6707 or Section 6708 of the Trust Code; provided, however, that this clause (xxi) shall not apply to any Taxes imposed under Section 6707(a) to the extent such Taxes arise (x) as a result of the Lessee or any Sublessee providing the Designated Organizer, (within the meaning of Temporary Treasury Regulation Section 301.6111-1T, Q/A 38 and 39) any false or misleading information or (y) as a result of the Lessee failing to provide the Designated Organizer or Tax Indemnitee with any item of information that is required under Section 6111 or Section 6112 of the Code or the Owner Participant other than Covered Income Taxesregulations promulgated thereunder, which the Lessee possesses, that is requested by the Designated Organizer or Tax Indemnitee from the Lessee; and
(viiixxii) Taxes other than as addressed in clause (xxi) of this Section 7.1(c), interest, penalties and additions to tax that would not have been imposed by way but for the failure of deduction or withholding by the U.S. Federal Government on payments a Tax Indemnitee to a Person who is not a United States Person orfile any required document timely and properly, except for Covered Income Taxes, by any foreign government on payments to any Person (provided, the extent that if in any case any such Taxes are imposed as a failure is the direct result of Lessee's breach of its obligations under Section 7.1(g) or of a change in a tax treaty after Lease Event of Default. For purposes of this section 7.1(c), any reference to the date hereof that is not already published as a proposed change on Lessee shall include the date hereof or on the date an Indemnified Party becomes an Indemnified Party, Lessee and the applicable Indemnified Parties agree to negotiate in good faith a restructuring any Related Party of the transaction contemplated hereby to eliminate such Taxes without changing the economic terms of this transaction, but if such Taxes are not so eliminated within 90 days from the date of the imposition of such Taxes, Lessor may (unless Lessee agrees to extend the indemnity provided for in Section 14(a) above to cover such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition required under Section 13 hereof on the date so selected by Lessor in its notice of termination).
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Taxes Excluded. The indemnity provided for in Section 14(a7.1 (b) above shall not extend to any Taxes not due in whole or part to: (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(a) above shall not extend to any of the followinginclude:
(i) in the case of the Lessor and its respective successorsas to any Equity Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by, the income, capital, franchises, excess profits or conduct of business (other than taxes which are in the nature of sales, use, value added, excise, license or property taxes) of such Indemnified Party any Income Tax imposed by the United States of America or federal government (but not excluding any state or local or foreign government or other taxing authority (collectively, "Income Taxes") other than "Covered Income Taxes" (as such term is defined belowTax required to make a payment on an After-Tax Basis);
(ii) in the case of each Financier and the Security Trustee and their respective successorsas to any Equity Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by income, receipts, capital, franchises or conduct of business of such Indemnified Party, other than such Taxes any Income Tax imposed by any state, local or foreign government or taxing authority of any jurisdiction or subdivision thereof (but not excluding an Income Tax required to make a payment on an After-Tax Basis); provided, however, that this exclusion shall not apply to the extent such Taxes relate directly or indirectly to (I) the use, location of any item of the Equipment or the activities of the Lessee in the taxing jurisdiction, (II) the presence or organization of the Lessee in the taxing jurisdiction, (III) any payment by or on behalf of the Lessee being made from the taxing jurisdiction, or (IV) the execution or delivery of any Operative Agreement by the Lessee in the taxing jurisdiction; provided, further, however, that the preceding proviso shall not apply to any Taxes that are solely attributable to the fact that the Owner Trust, the Owner Trustee (other than in its individual capacity) or the Owner Participant has its legal domicile or a principal place of business in the taxing jurisdiction (determined without regard to the transactions contemplated by the Operative Agreements);
(iii) as to any Equity Tax Indemnitee, any Tax that is imposed as a result of the voluntary sale, transfer or other disposition, or any involuntary sale, transfer or other disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Equity Tax Indemnitee is a debtor, by the Lessor or the Owner Participant of any of its rights with respect to any item of Equipment or the Owner Participant's interest in the Trust Estate unless such sale, transfer or other disposition is during the continuance of a Lease Event of Default or is otherwise pursuant to the Lessor's exercise of its rights under the Operative Agreements or is as a result of (x) any substitution, replacement, improvement, modification or addition to the Equipment or any portion thereof by the Lessee, a Sublessee, or a Related Person to the Lessee or Sublessee, (y) a requirement of the Lessee in the Operative Agreements or under applicable law, or (z) a purchase of the Equipment or any Unit thereof pursuant to the Lease or the other Operative Agreements;
(iv) as to any Equity Tax Indemnitee, any Taxes to the extent they exceed the amount Taxes that would have been imposed had the Aircraft never been operated to or used in if such jurisdiction;
(iii) Taxes relating to the Aircraft for any period after the expiration or early termination of the Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise of any remedies pursuant to Section 16 hereof following the occurrence of an Event of Default or pursuant to Exhibit D shall not be excluded from the indemnity provided for in Section 14(a) hereof;
(iv) Taxes imposed against the Owner Trustee or Security Trustee with respect to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust AgreementEquity Tax Indemnitee were a U.S. Person;
(v) as Taxes imposed on a Lender Tax Indemnitee, excluding the Policy Tax Indemnitee, with respect to any Indemnified Partyperiod after the payment in full of the Equipment Notes; provided that the exclusion set forth in this clause (v) shall not apply to Taxes to the extent such Taxes (I) relate directly or indirectly to events occurring or matters arising prior to or simultaneously with the date on which all of the principal of, Taxes interest on and all other amounts payable in respect of the Aircraft Equipment Notes have been paid in full or the Operative Agreements which arise out (II) result from a Lease Event of or are caused by the willful misconduct or gross negligence of such Indemnified Party, or the breach by such Indemnified Party of any express covenant, agreement or representation in the Operative AgreementsDefault that has occurred and is continuing;
(vi) Taxes imposed on the Policy Tax Indemnitee with respect to any period after the payment in full of all Equipment Notes, all Policy Provider Amounts and Policy Provider Reimbursement Amounts; provided that the exclusion set forth in this clause (vi) shall not apply to Taxes to the extent such Taxes (I) relate directly or indirectly to events occurring or matters arising prior or simultaneously with the date on which all of the principal of, interest on and other amounts payable in respect of the Equipment Notes, all Policy Provider Amounts and all Policy Provider Reimbursement Amounts have been paid in full or (II) result from a Lease Event of Default that has occurred and is continuing;
(vii) as to any Tax Indemnitee, Taxes to the extent caused by any misrepresentation or breach of warranty or covenant by such Tax Indemnitee or a Related Party of such Tax Indemnitee under any of the Operative Agreements (except to the extent such misrepresentations or breach is attributable to any act or omissions of the Lessee or any sublessee, transferee or assignee of the Lessee) or by the gross negligence or willful misconduct of such Tax Indemnitee or such Related Party;
(viii) as to any Lender Tax Indemnitee, Taxes that become payable as a result of a voluntary sale, assignment, transfer or other disposition, or any involuntary sale, transfer or other disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Lender Tax Indemnitee is a debtor, by reason of any transfer by an Indemnified Party such Lender Tax Indemnitee of all or any portion of its interest in the AircraftEquipment or any part thereof, the MortgageEquipment Notes, the Trust Estate, the Indenture Estate or any interest of the Operative Agreements or rights created thereunder; provided, however, that is this clause (viii) shall not apply in the case of any Operative Agreement sale assignment, transfer or shares other disposition (whether voluntary of stock in an Indemnified Party (other than transfers involuntary) which occur occurs as a result of or while a Lease Event of Default has occurred and is continuing or which occurs as a result of (v) the exercise of remedies for a Lease Event of Default, (w) any rights under Section 16 substitution, replacement, improvement, modification or Exhibit D hereof, addition to the Equipment or any remedies portion thereof by a Lessee, Sublessee or a Related Person to the Lessee or Sublessee, (x) a requirement in the Operative Agreements or under applicable law, (y) a purchase of the MortgageEquipment or any Unit thereof pursuant to the Lease or the other Operative Agreements or (z) any assignment to the Policy Provider pursuant to the Policy Provider Documents;
(ix) as to any Lender Tax Indemnitee, Taxes imposed as the result of such Lender Tax Indemnitee not being a U.S. Person;
(x) as to any Lender Tax Indemnitee, Income Taxes or transfer taxes relating to any payments of principal of, interest on or Make Whole Amount or other amounts in respect thereof, if any, on the Equipment Notes or the Pass Through Certificates paid to such Tax Indemnitee provided, that this clause (x) should not be interpreted to prevent any payment from being made on an After-Tax Basis, and provided further that this clause (x) shall not apply to Taxes attributable to (I) the use or location of any item of Equipment or the activities of the Lessee in the taxing jurisdiction, (II) the presence or organization of the Lessee in the taxing jurisdiction or (III) the execution or delivery of any Operative Agreement in the taxing jurisdiction; provided, further, however, the preceding provision shall not apply to any jurisdiction where such Lender Tax Indemnitee has its legal domicile or a place of business (determined without regard to the transitions contemplated by the Operative Agreements);
(viixi) Income Taxes to the extent directly resulting from or that would not have been imposed but for (x) in the case of Taxes imposed on or with respect to any Equity Tax Indemnitee, the Trust existence of any Lessor Liens with respect to such Equity Tax Indemnitee, or (y) in the Owner Participant other than Covered Income Taxes; andcase of Taxes imposed on or with respect to any Lender Tax Indemnitee, the existence of any Liens attributable to the Indenture Trustee that are unrelated to the transactions contemplated by the Operative Agreements or Liens attributable to the Pass Through Trustee that are unrelated to the transactions contemplated by the Operative Agreements;
(viiixii) Taxes imposed by way of deduction or withholding by on a Tax Indemnitee to the U.S. Federal Government on payments to a Person who is not a United States Person or, except for Covered Income Taxes, by any foreign government on payments to any Person (provided, extent that if in any case any such Taxes are would not have been imposed as upon such Tax Indemnitee but for any failure of such Tax Indemnitee or a result Related Party of a change in a tax treaty after such Tax Indemnitee to comply with (x) any certification, information, documentation, reporting or other similar requirements concerning the date hereof that is not already published as a proposed change on nationality, residence, identity or connection with the date hereof or on the date an Indemnified Party becomes an Indemnified Party, Lessee and the applicable Indemnified Parties agree to negotiate in good faith a restructuring of the transaction contemplated hereby to eliminate such Taxes without changing the economic terms of this transaction, but if such Taxes are not so eliminated within 90 days from the date of the imposition of jurisdiction imposing such Taxes, Lessor may (unless Lessee agrees to extend the indemnity provided for in Section 14(a) above to cover if such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition compliance is required under Section 13 hereof on the date so selected by Lessor laws or regulations of such jurisdiction to obtain or establish relief or exemption from or reduction in its notice of termination).such Taxes and the Tax Indemnitee or such Related Party was eligible to comply with such requirement or
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Taxes Excluded. The indemnity provided for in Section 14(a7.1(b) above shall not extend to any Taxes not due in whole or part to: (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(a) above shall not extend to any of the followinginclude:
(i) in the case of the Lessor and its respective successorsas to any Equity Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by, the income, capital, franchises, excess profits or conduct of business (other than taxes which are in the nature of sales, use, value added, excise, license or property taxes) of such Indemnified Party any Income Tax imposed by the United States of America or federal government (but not excluding any state or local or foreign government or other taxing authority (collectively, "Income Taxes") other than "Covered Income Taxes" (as such term is defined belowTax required to make a payment on an After-Tax Basis);
(ii) in the case of each Financier and the Security Trustee and their respective successorsas to any Equity Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by income, receipts, capital, franchises or conduct of business of such Indemnified Party, other than such Taxes any Income Tax imposed by any state, local or foreign government or taxing authority of any jurisdiction or subdivision Participation Agreement (TRLI 2001-1A) 61 thereof; provided, however, that this exclusion shall not apply to the extent such Taxes (but not including Income Taxes imposed on net income) are attributable to (I) the use or location of any item of the Equipment or the activities of the Lessee or its Affiliates or any sublessee in the taxing jurisdiction, (II) the presence or organization of the Lessee or any sublessee in the taxing jurisdiction, (III) the status of the Lessee or any sublessee as a foreign entity or as an entity owned by a foreign person or (IV) Lessee or sublessee having made (or deemed to have made) payments to the Tax Indemnitee from the relevant jurisdiction; provided, further, however, that the preceding proviso shall not apply to any jurisdiction where the Owner Trust, the Owner Trustee (other than in its individual capacity) or the Owner Participant has its legal domicile or principal place of business (determined without regard to the transactions contemplated by the Operative Agreement);
(iii) as to any Equity Tax Indemnitee, any Tax that is imposed as a result of the sale, transfer or other disposition, by the Lessor or the Owner Participant of any of its rights with respect to any item of Equipment or the Owner Participant's interest in the Trust Estate unless such sale, transfer or other disposition is a result of an Event of Default, results from any substitution, repair or replacement of any item of Equipment under the Lease, or results from any sale, transfer or disposition required under the Lease (including but not limited to Section 10 of the Lease);
(iv) as to any Equity Tax Indemnitee, any Taxes to the extent they exceed the amount Taxes that would have been imposed had the Aircraft never been operated to an Equity Tax Indemnitee not transferred, sold or used disposed of its interest or rights in such jurisdiction;
(iii) Taxes relating to the Aircraft for any period after the expiration or early termination item of the Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise of any remedies pursuant Equipment to Section 16 hereof following the occurrence of an Event of Default or pursuant to Exhibit D shall not be excluded from the indemnity provided for in Section 14(a) hereof;
(iv) Taxes imposed against the Owner Trustee or Security Trustee with respect to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust Agreementa non-U.S. Person;
(v) as Taxes imposed on a Lender Tax Indemnitee with respect to any Indemnified Party, Taxes period after the payment in respect full of the Aircraft Equipment Notes; provided that the exclusion set forth in this clause (v) shall not apply to Taxes to the extent such Taxes relate to events occurring or matters arising prior to or simultaneously with the Operative Agreements which arise out applicable time of payment of the Equipment Notes or are caused relate to any payment made by the willful misconduct or gross negligence of Lessee after such Indemnified Party, or the breach by such Indemnified Party of any express covenant, agreement or representation in the Operative Agreementsdate;
(vi) as to any Tax Indemnitee, Taxes to the extent caused by any misrepresentation or breach of warranty or covenant by such Tax Indemnitee or a Related Party under any of the Operative Agreements or by the gross negligence or willful misconduct of such Tax Indemnitee or a Related Party;
(vii) as to any Lender Tax Indemnitee, Taxes which become payable as a result of a sale, assignment, transfer or other disposition (whether voluntary or involuntary) by reason of any transfer by an Indemnified Party such Lender Tax Indemnitee of all or any portion of its interest in the AircraftEquipment or any part thereof, the MortgagePledged Equipment or Participation Agreement (TRLI 2001-1A) 62 any part thereof, the Trust Estate, the Indenture Estate or any interest in any of the Operative Agreement Agreements or shares of stock in an Indemnified Party (rights created thereunder, other than transfers as a result of (A) the substitution, modification or improvement of the Equipment or any part thereof or the Pledged Equipment or any part thereof, (B) a modification to the Operative Agreements, or (C) a disposition which occur occurs as the result of the exercise of remedies upon a Lease Event of Default; provided, that, notwithstanding the foregoing, the Lessee shall not be obligated to indemnify any Lender Tax Indemnitee with respect to net income taxes imposed within the United States as the result of a sale, assignment, transfer or other disposition by such Lender Tax Indemnitee or any Taxes imposed as a result of the exercise status of any rights under Section 16 or Exhibit D hereof, or any remedies under the Mortgage)Lender Tax Indemnitee as other than a resident of the United States for tax purposes;
(viiviii) as to any Lender Tax Indemnitee, Taxes imposed as the result of such Lender Tax Indemnitee not being a resident of the United States for tax purposes;
(ix) as to any Lender Tax Indemnitee, Income Taxes or transfer taxes relating to any payments of principal, interest or Make Whole Amount, if any, on the Equipment Notes or the Pass Through Certificates paid to any such Tax Indemnitee that are imposed by (A) any other jurisdiction in which such Indemnitee is subject to such Taxes as a result of it or an Affiliate being organized in such jurisdiction or conducting activities in that jurisdiction unrelated to the transactions contemplated by the Operative Agreements, (B) the United States federal government or (C) any state or local government within the United States;
(x) Taxes to the extent directly resulting from or that would not have been imposed but for (x) in the case of Taxes imposed on or with respect to any Equity Tax Indemnitee, the existence of any Lessor Liens with respect to such Equity Tax Indemnitee, (y) in the case of Taxes imposed on or with respect to any Lender Tax Indemnitee, the existence of any Liens attributable to the Indenture Trustee or Liens attributable to the Pass Through Trustee;
(xi) Taxes imposed on a Tax Indemnitee to the extent that such Taxes would not have been imposed upon such Tax Indemnitee but for any failure of such Tax Indemnitee or a Related Party to comply with (x) any certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes, if such compliance is required under the laws or regulations of such jurisdiction to obtain or establish relief or exemption from or reduction in such Taxes and the Tax Indemnitee or such Related Party was eligible to comply with such requirement or (y) any other certification, information, documentation, reporting or other similar requirements under the Tax laws or regulations of the jurisdiction imposing such Taxes that would establish entitlement to otherwise applicable relief Participation Agreement (TRLI 2001-1A) 63 or exemption from such Taxes; provided, however, that the exclusion set forth in this clause (xii) shall not apply (I) if such failure to comply was due to a failure of the Lessee to provide reasonable assistance on request in complying with such requirement, (II) if, in the case of Taxes imposed on the Trust or Owner Participant, in the good faith judgment of the Owner Participant other than Covered Income Taxes; andthere is a risk of adverse consequence to the Owner Participant or any Affiliate from such compliance against which the Owner Participant is not satisfactorily indemnified, (III) in the case of Taxes imposed on the Owner Participant, if any such failure to comply on the part of the Owner Trustee was the result of the Owner Trustee's gross negligence or failure to act in accordance with instructions of the Owner Participant, or (IV) in the case of any Tax Indemnitee, unless Lessee shall have given such Tax Indemnitee prior written notice of such requirements;
(viiixii) Taxes that are imposed by way with respect to any period after the earlier of deduction or withholding (x) return of the Equipment to the Lessor in accordance with, and at a time and place contemplated by the U.S. Federal Government on payments Lease (including the payment of all amounts due at such time) and (y) the termination of the Term pursuant to a Person who Section 6, 10, 11, 15 or 22 of the Lease and the discharge in full of Lessee's payment obligation's thereunder unless the Equipment is thereafter required to be returned, in which case, after such return; provided, however, that the exclusion set forth in this clause (xii) shall not a United States Person or, except for Covered Income Taxes, by any foreign government on payments apply to Taxes to the extent such Taxes relate to events occurring or matters arising prior to or simultaneously with such return or termination;
(xiii) as to any Person (providedLender Tax Indemnitee, that if Taxes in the nature of an intangible or similar tax upon or with respect to the value of the interest of such Lender Tax Indemnitee in the Indenture Estate, in any case any such Taxes are Equipment Note or Pass Through Certificate imposed as a result of a change such Lender Tax Indemnitee or any Affiliate of such Lender Tax Indemnitee being organized in, or conducting activities unrelated to the contemplated transactions in, the jurisdiction imposing such Taxes;
(xiv) Taxes imposed on the Owner Trustee or the Indenture Trustee that are on, based on or measured by any trustee fees for services rendered by such Tax Indemnitee in a tax treaty after its capacity as trustee under the date hereof that Operative Agreements;
(xv) Taxes imposed on any Tax Indemnitee, or any other person who, together with such Tax Indemnitee, is not already published treated as one employer for employee benefit plan purposes, as a proposed change on result of, or in connection with, any "prohibited transaction," within the date hereof or on the date an Indemnified Party becomes an Indemnified Party, Lessee and the applicable Indemnified Parties agree to negotiate in good faith a restructuring meaning of the transaction contemplated hereby to eliminate such provisions of the Code or regulations thereunder or as set forth in Section 406 of ERISA or the regulations implementing ERISA or Section 4975 of the Code or the regulations thereunder; Participation Agreement (TRLI 2001-1A) 64
(xvi) Taxes without changing the economic terms of this transaction, but if for so long as (x) such Taxes are being contested in accordance with the provisions of Section 7.1(e) hereof, (y) the Lessee is in compliance with its obligations under Section 7.1(e), and (z) the payment of such Taxes is not so eliminated within 90 days from required pursuant to Section 7.1(e);
(xvii) Taxes as to which such Tax Indemnitee is indemnified pursuant to the date Tax Indemnity Agreement;
(xviii) any Taxes imposed on or with respect to any Certificateholder; and
(xix) Taxes imposed as a result of the imposition authorization or giving of any future amendments, supplements, waivers or consents with respect to any Operative Agreement other than (w) those which are legally required, (x) in connection with the exercise of remedies pursuant to Section 15 of the Lease, (y) such Taxes, Lessor may as have been proposed by the Lessee or consented to by the Lessee or (unless Lessee agrees z) those that are required pursuant to extend the indemnity provided for in Section 14(a) above to cover such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon terms of the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition required under Section 13 hereof on the date so selected by Lessor in its notice of termination)Operative Agreements.
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Taxes Excluded. The indemnity provided for in Section 14(a7.1(b) above shall not extend to any Taxes not due in whole or part toinclude: Participation Agreement (1TRLI 2001-1C) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(a) above shall not extend to any of the following:66
(i) in the case of the Lessor and its respective successorsas to any Equity Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by, the income, capital, franchises, excess profits or conduct of business (other than taxes which are in the nature of sales, use, value added, excise, license or property taxes) of such Indemnified Party any Income Tax imposed by the United States of America or federal government (but not excluding any state or local or foreign government or other taxing authority (collectively, "Income Taxes") other than "Covered Income Taxes" (as such term is defined belowTax required to make a payment on an After-Tax Basis);
(ii) in the case of each Financier and the Security Trustee and their respective successorsas to any Equity Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by income, receipts, capital, franchises or conduct of business of such Indemnified Party, other than such Taxes any Income Tax imposed by any state, local or foreign government or taxing authority of any jurisdiction or subdivision thereof; provided, however, that this exclusion shall not apply to the extent such Taxes (but not including Income Taxes imposed on net income) are attributable to (I) the use or location of any item of the Equipment or the activities of the Lessee or its Affiliates or any sublessee in the taxing jurisdiction, (II) the presence or organization of the Lessee or any sublessee in the taxing jurisdiction, (III) the status of the Lessee or any sublessee as a foreign entity or as an entity owned by a foreign person or (IV) Lessee or sublessee having made (or deemed to have made) payments to the Tax Indemnitee from the relevant jurisdiction; provided, further, however, that the preceding proviso shall not apply to any jurisdiction where the Owner Trust, the Owner Trustee (other than in its individual capacity) or the Owner Participant has its legal domicile or principal place of business (determined without regard to the transactions contemplated by the Operative Agreement);
(iii) as to any Equity Tax Indemnitee, any Tax that is imposed as a result of the sale, transfer or other disposition, by the Lessor or the Owner Participant of any of its rights with respect to any item of Equipment, Equity Collateral or the Owner Participant's interest in the Trust Estate unless such sale, transfer or other disposition is a result of an Event of Default, results from any substitution, repair or replacement of any item of Equipment under the Lease, or results from any sale, transfer or disposition required under the Lease (including but not limited to Section 10 of the Lease);
(iv) as to any Equity Tax Indemnitee, any Taxes to the extent they exceed the amount Taxes that would have been imposed had the Aircraft never been operated to an Equity Tax Indemnitee not transferred, sold or used disposed of its interest or rights in such jurisdiction;
(iii) Taxes relating to the Aircraft for any period after the expiration or early termination item of the Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise of any remedies pursuant Equipment to Section 16 hereof following the occurrence of an Event of Default or pursuant to Exhibit D shall not be excluded from the indemnity provided for in Section 14(a) hereof;
(iv) Taxes imposed against the Owner Trustee or Security Trustee with respect to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust Agreementa non-U.S. Person;
(v) as Taxes imposed on a Lender Tax Indemnitee with respect to any Indemnified Party, Taxes period after the payment in respect full of the Aircraft Equipment Notes; provided that the exclusion set forth in this clause (v) shall not apply to Taxes to the extent such Taxes relate to events occurring or matters arising prior to or simultaneously with the Operative Agreements which arise out applicable time of payment of the Equipment Notes or are caused relate to any payment made by the willful misconduct or gross negligence of Lessee after such Indemnified Party, or the breach by such Indemnified Party of any express covenant, agreement or representation in the Operative Agreementsdate;
(vi) as to any Tax Indemnitee, Taxes to the extent caused by any misrepresentation or breach of warranty or covenant by such Tax Participation Agreement (TRLI 2001-1C) Indemnitee or a Related Party under any of the Operative Agreements or by the gross negligence or willful misconduct of such Tax Indemnitee or a Related Party;
(vii) as to any Lender Tax Indemnitee, Taxes which become payable as a result of a sale, assignment, transfer or other disposition (whether voluntary or involuntary) by reason of any transfer by an Indemnified Party such Lender Tax Indemnitee of all or any portion of its interest in the AircraftEquipment or any part thereof, the MortgagePledged Equipment or any part thereof, the Trust Estate, the Indenture Estate or any interest in any of the Operative Agreement Agreements or shares of stock in an Indemnified Party (rights created thereunder, other than transfers as a result of (A) the substitution, modification or improvement of the Equipment or any part thereof or the Pledged Equipment or any part thereof, (B) a modification to the Operative Agreements, or (C) a disposition which occur occurs as the result of the exercise of remedies upon a Lease Event of Default; provided, that, notwithstanding the foregoing, the Lessee shall not be obligated to indemnify any Lender Tax Indemnitee with respect to net income taxes imposed within the United States as the result of a sale, assignment, transfer or other disposition by such Lender Tax Indemnitee or any Taxes imposed as a result of the exercise status of any rights under Section 16 or Exhibit D hereof, or any remedies under the Mortgage)Lender Tax Indemnitee as other than a resident of the United States for tax purposes;
(viiviii) as to any Lender Tax Indemnitee, Taxes imposed as the result of such Lender Tax Indemnitee not being a resident of the United States for tax purposes;
(ix) as to any Lender Tax Indemnitee, Income Taxes or transfer taxes relating to any payments of principal, interest or Make Whole Amount, if any, on the Equipment Notes or the Pass Through Certificates paid to any such Tax Indemnitee that are imposed by (A) any other jurisdiction in which such Indemnitee is subject to such Taxes as a result of it or an Affiliate being organized in such jurisdiction or conducting activities in that jurisdiction unrelated to the transactions contemplated by the Operative Agreements, (B) the United States federal government or (C) any state or local government within the United States;
(x) Taxes to the extent directly resulting from or that would not have been imposed but for (x) in the case of Taxes imposed on or with respect to any Equity Tax Indemnitee, the existence of any Lessor Liens with respect to such Equity Tax Indemnitee, (y) in the case of Taxes imposed on or with respect to any Lender Tax Indemnitee, the existence of any Liens attributable to the Indenture Trustee or Liens attributable to the Pass Through Trustee;
(xi) Taxes imposed on a Tax Indemnitee to the extent that such Taxes would not have been imposed upon such Tax Indemnitee but for any failure of such Tax Indemnitee or a Related Party to comply with (x) any certification, information, documentation, reporting or other similar requirements Participation Agreement (TRLI 2001-1C) concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes, if such compliance is required under the laws or regulations of such jurisdiction to obtain or establish relief or exemption from or reduction in such Taxes and the Tax Indemnitee or such Related Party was eligible to comply with such requirement or (y) any other certification, information, documentation, reporting or other similar requirements under the Tax laws or regulations of the jurisdiction imposing such Taxes that would establish entitlement to otherwise applicable relief or exemption from such Taxes; provided, however, that the exclusion set forth in this clause (xii) shall not apply (I) if such failure to comply was due to a failure of the Lessee to provide reasonable assistance on request in complying with such requirement, (II) if, in the case of Taxes imposed on the Trust or Owner Participant, in the good faith judgment of the Owner Participant other than Covered Income Taxes; andthere is a risk of adverse consequence to the Owner Participant or any Affiliate from such compliance against which the Owner Participant is not satisfactorily indemnified, (III) in the case of Taxes imposed on the Owner Participant, if any such failure to comply on the part of the Owner Trustee was the result of the Owner Trustee's gross negligence or failure to act in accordance with instructions of the Owner Participant, or (IV) in the case of any Tax Indemnitee, unless Lessee shall have given such Tax Indemnitee prior written notice of such requirements;
(viiixii) Taxes that are imposed by way with respect to any period after the earlier of deduction or withholding (x) return of the Equipment to the Lessor in accordance with, and at a time and place contemplated by the U.S. Federal Government on payments Lease (including the payment of all amounts due at such time) and (y) the termination of the Term pursuant to a Person who Section 6, 10, 11, 15 or 22 of the Lease and the discharge in full of Lessee's payment obligation's thereunder unless the Equipment is thereafter required to be returned, in which case, after such return; provided, however, that the exclusion set forth in this clause (xii) shall not a United States Person or, except for Covered Income Taxes, by any foreign government on payments apply to Taxes to the extent such Taxes relate to events occurring or matters arising prior to or simultaneously with such return or termination;
(xiii) as to any Person (providedLender Tax Indemnitee, that if Taxes in the nature of an intangible or similar tax upon or with respect to the value of the interest of such Lender Tax Indemnitee in the Indenture Estate, in any case any such Taxes are Equipment Note or Pass Through Certificate imposed as a result of a change such Lender Tax Indemnitee or any Affiliate of such Lender Tax Indemnitee being organized in, or conducting activities unrelated to the contemplated transactions in, the jurisdiction imposing such Taxes;
(xiv) Taxes imposed on the Owner Trustee or the Indenture Trustee that are on, based on or measured by any trustee fees for services rendered by such Tax Indemnitee in a tax treaty after its capacity as trustee under the date hereof that Operative Agreements; Participation Agreement (TRLI 2001-1C)
(xv) Taxes imposed on any Tax Indemnitee, or any other person who, together with such Tax Indemnitee, is not already published treated as one employer for employee benefit plan purposes, as a proposed change on result of, or in connection with, any "prohibited transaction," within the date hereof or on the date an Indemnified Party becomes an Indemnified Party, Lessee and the applicable Indemnified Parties agree to negotiate in good faith a restructuring meaning of the transaction contemplated hereby to eliminate such provisions of the Code or regulations thereunder or as set forth in Section 406 of ERISA or the regulations implementing ERISA or Section 4975 of the Code or the regulations thereunder;
(xvi) Taxes without changing the economic terms of this transaction, but if for so long as (x) such Taxes are being contested in accordance with the provisions of Section 7.1(e) hereof, (y) the Lessee is in compliance with its obligations under Section 7.1(e), and (z) the payment of such Taxes is not so eliminated within 90 days from required pursuant to Section 7.1(e);
(xvii) Taxes as to which such Tax Indemnitee is indemnified pursuant to the date Tax Indemnity Agreement;
(xviii) any Taxes imposed on or with respect to any Certificateholder; and
(xix) Taxes imposed as a result of the imposition authorization or giving of any future amendments, supplements, waivers or consents with respect to any Operative Agreement other than (w) those which are legally required, (x) in connection with the exercise of remedies pursuant to Section 15 of the Lease, (y) such Taxes, Lessor may as have been proposed by the Lessee or consented to by the Lessee or (unless Lessee agrees z) those that are required pursuant to extend the indemnity provided for in Section 14(a) above to cover such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon terms of the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition required under Section 13 hereof on the date so selected by Lessor in its notice of termination)Operative Agreements.
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Taxes Excluded. The indemnity provided for in Section 14(a7.1 (b) above shall not extend to any Taxes not due in whole or part to: (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(a) above shall not extend to any of the followinginclude:
(i) in the case of the Lessor and its respective successorsas to any Equity Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by, the income, capital, franchises, excess profits or conduct of business (other than taxes which are in the nature of sales, use, value added, excise, license or property taxes) of such Indemnified Party any Income Tax imposed by the United States of America or federal government (but not excluding any state or local or foreign government or other taxing authority (collectively, "Income Taxes") other than "Covered Income Taxes" (as such term is defined belowTax required to make a payment on an After-Tax Basis);
(ii) in the case of each Financier and the Security Trustee and their respective successorsas to any Equity Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by income, receipts, capital, franchises or conduct of business of such Indemnified Party, other than such Taxes any Income Tax imposed by any state, local or foreign government or taxing authority of any jurisdiction or subdivision thereof (but not excluding an Income Tax required to make a payment on an After-Tax Basis); provided, however, that this exclusion shall not apply to the extent such Taxes relate directly or indirectly to (I) the use, location of any item of the Equipment or the activities of the Lessee in the taxing jurisdiction, (II) the presence or organization of the Lessee in the taxing jurisdiction, (III) any payment by or on behalf of the Lessee being made from the taxing jurisdiction, or (IV) the execution or delivery of any Operative Agreement by the Lessee in the taxing jurisdiction; provided, further, however, that the preceding proviso shall not apply to any Taxes that are solely attributable to the fact that the Owner Trust, the Owner Trustee (other than in its individual capacity) or the Owner Participant or any Related Party thereto has its legal domicile or a principal place of business in the taxing jurisdiction (determined without regard to the transactions contemplated by the Operative Agreements or any similar lease transaction between the Owner Participant and the Lessee or an Affiliate of the Lessee);
(iii) as to any Equity Tax Indemnitee, any Tax that is imposed as a result of the voluntary sale, transfer or other disposition, or any involuntary sale, transfer or other disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Equity Tax Indemnitee is a debtor, by the Lessor or the Owner Participant of any of its rights with respect to any item of Equipment or the Owner Participant's interest in the Trust Estate unless such sale, transfer or other disposition is during the continuance of a Lease Event of Default or is otherwise pursuant to the Lessor's exercise of its rights under the Operative Agreements or is as a result of (x) any substitution, replacement, improvement, modification or addition to the Equipment or any portion thereof by the Lessee, a Sublessee, or a Related Party to the Lessee or Sublessee, (y) a requirement of the Lessee in the Operative Agreements or under applicable law, or (z) a purchase of the Equipment or any Unit thereof pursuant to the Lease or the other Operative Agreements;
(iv) as to any Equity Tax Indemnitee, any Taxes to the extent they exceed the amount Taxes that would have been imposed had the Aircraft never been operated to or used in if such jurisdiction;
(iii) Taxes relating to the Aircraft for any period after the expiration or early termination of the Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise of any remedies pursuant to Section 16 hereof following the occurrence of an Event of Default or pursuant to Exhibit D shall not be excluded from the indemnity provided for in Section 14(a) hereof;
(iv) Taxes imposed against the Owner Trustee or Security Trustee with respect to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust AgreementEquity Tax Indemnitee were a U.S. Person;
(v) as Taxes imposed on a Lender Tax Indemnitee, excluding the Policy Tax Indemnitee, with respect to any Indemnified Partyperiod after the payment in full of the Equipment Notes; provided that the exclusion set forth in this clause (v) shall not apply to Taxes to the extent such Taxes (I) relate directly or indirectly to events occurring or matters arising prior to or simultaneously with the date on which all of the principal of, Taxes interest on and all other amounts payable in respect of the Aircraft Equipment Notes have been paid in full or the Operative Agreements which arise out (II) result from a Lease Event of or are caused by the willful misconduct or gross negligence of such Indemnified Party, or the breach by such Indemnified Party of any express covenant, agreement or representation in the Operative AgreementsDefault that has occurred and is continuing;
(vi) Taxes imposed on the Policy Tax Indemnitee with respect to any period after the payment in full of all Equipment Notes, all Policy Provider Amounts and Policy Provider Reimbursement Costs; provided that the exclusion set forth in this clause (vi) shall not apply to Taxes to the extent such Taxes (I) relate directly or indirectly to events occurring or matters arising prior or simultaneously with the date on which all of the principal of, interest on and other amounts payable in respect of the Equipment Notes, all Policy Provider Amounts and all Policy Provider Reimbursement Costs have been paid in full or (II) result from a Lease Event of Default that has occurred and is continuing;
(vii) as to any Tax Indemnitee, Taxes to the extent caused by any misrepresentation or breach of warranty or covenant by such Tax Indemnitee or a Related Party of such Tax Indemnitee under any of the Operative Agreements (except to the extent such misrepresentations or breach is attributable to any act or omissions of the Lessee or any sublessee, transferee or assignee of the Lessee) or by the gross negligence or willful misconduct of such Tax Indemnitee or such Related Party;
(viii) as to any Lender Tax Indemnitee, Taxes that become payable as a result of a voluntary sale, assignment, transfer or other disposition, or any involuntary sale, transfer or other disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Lender Tax Indemnitee is a debtor, by reason of any transfer by an Indemnified Party such Lender Tax Indemnitee of all or any portion of its interest in the AircraftEquipment or any part thereof, the MortgageEquipment Notes, the Trust Estate, the Indenture Estate or any of the Operative Agreements or rights created thereunder; provided, however, that is this clause (viii) shall not apply in the case of any sale assignment, transfer or other disposition (whether voluntary of involuntary) which occurs as a result of or while a Lease Event of Default has occurred and is continuing or which occurs as a result of (v) the exercise of remedies for a Lease Event of Default, (w) any substitution, replacement, improvement, modification or addition to the Equipment or any portion thereof by a Lessee, Sublessee or a Related Party to the Lessee or Sublessee, (x) a requirement in the Operative Agreements or under applicable law, (y) a purchase of the Equipment or any Unit thereof pursuant to the Lease or the other Operative Agreements or (z) any assignment to the Policy Provider pursuant to the Policy Provider Documents;
(ix) as to any Lender Tax Indemnitee, Taxes imposed as the result of such Lender Tax Indemnitee not being a U.S. Person;
(x) as to any Lender Tax Indemnitee, Income Taxes or transfer taxes relating to any payments of principal of, interest on or Make Whole Amount or other amounts in respect thereof, if any, on the Equipment Notes or the Pass Through Certificates paid to such Tax Indemnitee provided, that this clause (x) should not be interpreted to prevent any payment from being made on an After-Tax Basis, and provided further that this clause (x) shall not apply to Taxes attributable to (I) the use or location of any item of Equipment or the activities of the Lessee in the taxing jurisdiction, (II) the presence or organization of the Lessee in the taxing jurisdiction or (III) the execution or delivery of any Operative Agreement in the taxing jurisdiction; provided, further, however, the preceding provision shall not apply to any jurisdiction where such Lender Tax Indemnitee or shares any Related Party of stock such Lender Tax Indemnitee has its legal domicile or a place of business (determined without regard to the transitions contemplated by the Operative Agreements);
(xi) Taxes to the extent directly resulting from or that would not have been imposed but for (x) in the case of Taxes imposed on or with respect to any Equity Tax Indemnitee, the existence of any Lessor Liens with respect to such Equity Tax Indemnitee, or (y) in the case of Taxes imposed on or with respect to any Lender Tax Indemnitee, the existence of any Liens attributable to the Indenture Trustee that are unrelated to the transactions contemplated by the Operative Agreements or Liens attributable to the Pass Through Trustee that are unrelated to the transactions contemplated by the Operative Agreements;
(xii) Taxes imposed on a Tax Indemnitee to the extent that such Taxes would not have been imposed upon such Tax Indemnitee but for any failure of such Tax Indemnitee or a Related Party of such Tax Indemnitee to comply with (x) any certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes, if such compliance is required under the laws or regulations of such jurisdiction to obtain or establish relief or exemption from or reduction in such Taxes and the Tax Indemnitee or such Related Party was eligible to comply with such requirement or (y) any other certification, information, documentation, reporting or other similar requirements under the Tax laws or regulations of the jurisdiction imposing such Taxes that would establish entitlement to otherwise applicable relief or exemption from such Taxes and the Tax Indemnitee or such Related Party was eligible to comply with such requirement; provided, however, that the exclusion set forth in this clause (xii) shall not apply (I) if such failure to comply was due to a failure of the Lessee to provide such Tax Indemnitee reasonable assistance on request in complying with such requirement, (II) if in the good faith judgment of such Tax Indemnitee there is a risk of adverse consequence to such Tax Indemnitee or any Affiliate from such compliance against which such Tax Indemnitee is not satisfactorily indemnified, or (III) in the case of any Tax Indemnitee, unless Lessee shall have given such Tax Indemnitee prior timely written notice of such requirements;
(xiii) as to the Equity Tax Indemnitee, Taxes that are imposed with respect to any period after both of the following shall have occurred: (x) the termination of the Lease Term pursuant to Section 6, 10, 11 or 22 of the Lease (unless the Equipment is thereafter required to be returned, in which case, after such return) and (y) the payment by the Lessee of all amounts due and owing by it to the Equity Tax Indemnitee under the Lease and other Operative Agreements; provided, however, that the exclusion set forth in this clause (xiii) shall not apply (I) to Taxes to the extent such Taxes relate to events occurring or matters arising prior to or simultaneously with such return or termination and (II) so long as a Lease Event of Default has occurred and is continuing;
(xiv) as to any Lender Tax Indemnitee, Taxes in the nature of an Indemnified Party intangible or similar tax upon or with respect to the value of the interest of such Lender Tax Indemnitee in the Indenture Estate, in any Equipment Note or Pass Through Certificate imposed as a result of such Lender Tax Indemnitee or any Affiliate of such Lender Tax Indemnitee being organized in, or conducting activities unrelated to the contemplated transactions in, the jurisdiction imposing such Taxes, provided however, that this exclusion shall not apply to the incremental amount of such taxes that arise from such Lender Tax Indemnitee's participation in the transactions contemplated herein;
(xv) Taxes imposed on the Owner Trustee, the Pass Through Trustee or the Indenture Trustee that are on, based on or measured by any trustee fees for services rendered by such Tax Indemnitee;
(xvi) Except as set forth in Section 7.2, Taxes imposed on any Tax Indemnitee, or any other than transfers person who, together with such Tax Indemnitee, is treated as one employer for employee benefit plan purposes, as a result of, or in connection with, any "prohibited transaction," within the meaning of the provisions of the Code or regulations thereunder or as set forth in Section 406 of ERISA or the regulations implementing ERISA or Section 4975 of the Code or the regulations thereunder;
(xvii) Taxes for so long as (x) such Taxes are being contested in accordance with the provisions of Section 7.1 (e) hereof, (y) the Lessee is in compliance with its obligations under Section 7.1(e), and (z) the payment of such Taxes is not required pursuant to Section 7.1(e); provided, however, that with respect to a Lender Tax Indemnitee this clause (xvii) shall only apply so long as the non-payment of the contested Tax does not result in any Lender Tax Indemnitee failing to receive all required payments when due under the Equipment Notes;
(xviii) as to any Equity Tax Indemnitee, Taxes as to which occur such Tax Indemnitee is indemnified pursuant to the Tax Indemnity Agreement;
(xix) any Taxes imposed on or with respect to any Certificateholder;
(xx) Taxes imposed on a Tax Indemnitee as a result of the authorization or giving of any future amendments, supplements, waivers or consents by such Tax Indemnitee with respect to any Operative Agreement other than (w) in connection with the exercise of any rights under remedies pursuant to Section 16 15 of the Lease or Exhibit D hereofwhile a Lease Event of Default has occurred and is continuing, (x) such as have been proposed by the Lessee or consented to by the Lessee in writing, (y) those that are required by applicable law or pursuant to the terms of the Operative Agreements, or (z) those that may be necessary or appropriate to, and are in conformity with, any remedies under amendment, supplement, waiver or consent proposed by the Mortgage)Lessee or consented to by the Lessee in writing;
(viixxi) Income Taxes imposed on under Section 6707 or Section 6708 of the Trust Code or with respect to provisions of state or local law similar to Sections 6707 and 6708 of the Code; provided, however, that this clause (xxi) shall not apply to any Taxes imposed under Section 6707(a) to the extent such Taxes arise (x) as a result of the Lessee or any Sublessee providing the Designated Organizer, (within the meaning of Temporary Treasury Regulation Section 301.6111-1T, Q/A 38 and 39) any false or misleading information or (y) as a result of the Lessee failing to provide the Designated Organizer or Tax Indemnitee with any item of information that is required under Section 6111 or Section 6112 of the Code or the Owner Participant other than Covered Income Taxesregulations promulgated thereunder, which the Lessee possesses, that is requested by the Designated Organizer or Tax Indemnitee from the Lessee; and
(viiixxii) Taxes other than as addressed in clause (xxi) of this Section 7.1(c), interest, penalties and additions to tax that would not have been imposed by way but for the failure of deduction or withholding by the U.S. Federal Government on payments a Tax Indemnitee to a Person who is not a United States Person orfile any required document timely and properly, except for Covered Income Taxesto the extent that such failure is the direct result of Lessee's breach of its obligations under Section 7.1(g) or of a Lease Event of Default. For purposes of this section 7.1(c), by any foreign government on payments reference to the Lessee shall include the Lessee and any Person (providedRelated Party of the Lessee. Furthermore, that if the activities described in Section 7.1(m) shall not constitute an event described in any case any such Taxes are imposed as a result of a change in a tax treaty after the date hereof that is not already published as a proposed change on the date hereof or on the date an Indemnified Party becomes an Indemnified Party, Lessee and the applicable Indemnified Parties agree to negotiate in good faith a restructuring of the transaction contemplated hereby to eliminate such Taxes without changing the economic terms exclusions of this transaction, but if such Taxes are not so eliminated within 90 days from the date of the imposition of such Taxes, Lessor may (unless Lessee agrees to extend the indemnity provided for in Section 14(a) above to cover such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition required under Section 13 hereof on the date so selected by Lessor in its notice of termination7.1(c).
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Taxes Excluded. The indemnity provided for in Section 14(a7.1 (b) above shall not extend to any Taxes not due in whole or part to: (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(a) above shall not extend to any of the followinginclude:
(i) in the case of the Lessor and its respective successorsas to any Equity Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by, the income, capital, franchises, excess profits or conduct of business (other than taxes which are in the nature of sales, use, value added, excise, license or property taxes) of such Indemnified Party any Income Tax imposed by the United States of America or federal government (but not excluding any state or local or foreign government or other taxing authority (collectively, "Income Taxes") other than "Covered Income Taxes" (as such term is defined belowTax required to make a payment on an After-Tax Basis);
(ii) in the case of each Financier and the Security Trustee and their respective successorsas to any Equity Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by income, receipts, capital, franchises or conduct of business of such Indemnified Party, other than such Taxes any Income Tax imposed by any state, local or foreign government or taxing authority of any jurisdiction or subdivision thereof (but not excluding an Income Tax required to make a payment on an After-Tax Basis); provided, however, that this exclusion shall not apply to the extent such Taxes relate directly or indirectly to (I) the use, location of any item of the Equipment or the activities of the Lessee in the taxing jurisdiction, (II) the presence or organization of the Lessee in the taxing jurisdiction, (III) any payment by or on behalf of the Lessee being made from the taxing jurisdiction, or (IV) the execution or delivery of any Operative Agreement by the Lessee in the taxing jurisdiction; provided, further, however, that the preceding proviso shall not apply to any Taxes that are solely attributable to the fact that the Owner Trust, the Owner Trustee (other than in its individual capacity) or the Owner Participant has its legal domicile or a principal place of business in the taxing jurisdiction (determined without regard to the transactions contemplated by the Operative Agreements);
(iii) as to any Equity Tax Indemnitee, any Tax that is imposed as a result of the voluntary sale, transfer or other disposition, or any involuntary sale, transfer or other disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Equity Tax Indemnitee is a debtor, by the Lessor or the Owner Participant of any of its rights with respect to any item of Equipment or the Owner Participant's interest in the Trust Estate unless such sale, transfer or other disposition is during the continuance of a Lease Event of Default or is otherwise pursuant to the Lessor's exercise of its rights under the Operative Agreements or is as a result of (x) any substitution, replacement, improvement, modification or addition to the Equipment or any portion thereof by the Lessee, a Sublessee, or a Related Person to the Lessee or Sublessee, (y) a requirement of the Lessee in the Operative Agreements or under applicable law, or (z) a purchase of the Equipment or any Unit thereof pursuant to the Lease or the other Operative Agreements;
(iv) as to any Equity Tax Indemnitee, any Taxes to the extent they exceed the amount Taxes that would have been imposed had the Aircraft never been operated to or used in if such jurisdiction;
(iii) Taxes relating to the Aircraft for any period after the expiration or early termination of the Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise of any remedies pursuant to Section 16 hereof following the occurrence of an Event of Default or pursuant to Exhibit D shall not be excluded from the indemnity provided for in Section 14(a) hereof;
(iv) Taxes imposed against the Owner Trustee or Security Trustee with respect to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust AgreementEquity Tax Indemnitee were a U.S. Person;
(v) as Taxes imposed on a Lender Tax Indemnitee, excluding the Policy Tax Indemnitee, with respect to any Indemnified Partyperiod after the payment in full of the Equipment Notes; provided that the exclusion set forth in this clause (v) shall not apply to Taxes to the extent such Taxes (I) relate directly or indirectly to events occurring or matters arising prior to or simultaneously with the date on which all of the principal of, Taxes interest on and all other amounts payable in respect of the Aircraft Equipment Notes have been paid in full or the Operative Agreements which arise out (II) result from a Lease Event of or are caused by the willful misconduct or gross negligence of such Indemnified Party, or the breach by such Indemnified Party of any express covenant, agreement or representation in the Operative AgreementsDefault that has occurred and is continuing;
(vi) Taxes imposed on the Policy Tax Indemnitee with respect to any period after the payment in full of all Equipment Notes, all Policy Provider Amounts and Policy Provider Reimbursement Amounts; provided that the exclusion set forth in this clause (vi) shall not apply to Taxes to the extent such Taxes (I) relate directly or indirectly to events occurring or matters arising prior or simultaneously with the date on which all of the principal of, interest on and other amounts payable in respect of the Equipment Notes, all Policy Provider Amounts and all Policy Provider Reimbursement Amounts have been paid in full or (II) result from a Lease Event of Default that has occurred and is continuing;
(vii) as to any Tax Indemnitee, Taxes to the extent caused by any misrepresentation or breach of warranty or covenant by such Tax Indemnitee or a Related Party of such Tax Indemnitee under any of the Operative Agreements (except to the extent such misrepresentations or breach is attributable to any act or omissions of the Lessee or any sublessee, transferee or assignee of the Lessee) or by the gross negligence or willful misconduct of such Tax Indemnitee or such Related Party;
(viii) as to any Lender Tax Indemnitee, Taxes that become payable as a result of a voluntary sale, assignment, transfer or other disposition, or any involuntary sale, transfer or other disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Lender Tax Indemnitee is a debtor, by reason of any transfer by an Indemnified Party such Lender Tax Indemnitee of all or any portion of its interest in the AircraftEquipment or any part thereof, the MortgageEquipment Notes, the Trust Estate, the Indenture Estate or any of the Operative Agreements or rights created thereunder; provided, however, that is this clause (viii) shall not apply in the case of any sale assignment, transfer or other disposition (whether voluntary of involuntary) which occurs as a result of or while a Lease Event of Default has occurred and is continuing or which occurs as a result of (v) the exercise of remedies for a Lease Event of Default, (w) any substitution, replacement, improvement, modification or addition to the Equipment or any portion thereof by a Lessee, Sublessee or a Related Person to the Lessee or Sublessee, (x) a requirement in the Operative Agreements or under applicable law, (y) a purchase of the Equipment or any Unit thereof pursuant to the Lease or the other Operative Agreements or (z) any assignment to the Policy Provider pursuant to the Policy Provider Documents;
(ix) as to any Lender Tax Indemnitee, Taxes imposed as the result of such Lender Tax Indemnitee not being a U.S. Person;
(x) as to any Lender Tax Indemnitee, Income Taxes or transfer taxes relating to any payments of principal of, interest on or Make Whole Amount or other amounts in respect thereof, if any, on the Equipment Notes or the Pass Through Certificates paid to such Tax Indemnitee provided, that this clause (x) should not be interpreted to prevent any payment from being made on an After-Tax Basis, and provided further that this clause (x) shall not apply to Taxes attributable to (I) the use or location of any item of Equipment or the activities of the Lessee in the taxing jurisdiction, (II) the presence or organization of the Lessee in the taxing jurisdiction or (III) the execution or delivery of any Operative Agreement in the taxing jurisdiction; provided, further, however, the preceding provision shall not apply to any jurisdiction where such Lender Tax Indemnitee has its legal domicile or shares a place of stock business (determined without regard to the transitions contemplated by the Operative Agreements);
(xi) Taxes to the extent directly resulting from or that would not have been imposed but for (x) in the case of Taxes imposed on or with respect to any Equity Tax Indemnitee, the existence of any Lessor Liens with respect to such Equity Tax Indemnitee, or (y) in the case of Taxes imposed on or with respect to any Lender Tax Indemnitee, the existence of any Liens attributable to the Indenture Trustee that are unrelated to the transactions contemplated by the Operative Agreements or Liens attributable to the Pass Through Trustee that are unrelated to the transactions contemplated by the Operative Agreements;
(xii) Taxes imposed on a Tax Indemnitee to the extent that such Taxes would not have been imposed upon such Tax Indemnitee but for any failure of such Tax Indemnitee or a Related Party of such Tax Indemnitee to comply with (x) any certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes, if such compliance is required under the laws or regulations of such jurisdiction to obtain or establish relief or exemption from or reduction in such Taxes and the Tax Indemnitee or such Related Party was eligible to comply with such requirement or (y) any other certification, information, documentation, reporting or other similar requirements under the Tax laws or regulations of the jurisdiction imposing such Taxes that would establish entitlement to otherwise applicable relief or exemption from such Taxes and the Tax Indemnitee or such Related Party was eligible to comply with such requirement; provided, however, that the exclusion set forth in this clause (xii) shall not apply (I) if such failure to comply was due to a failure of the Lessee to provide such Tax Indemnitee reasonable assistance on request in complying with such requirement, (II) if in the good faith judgment of such Tax Indemnitee there is a risk of adverse consequence to such Tax Indemnitee or any Affiliate from such compliance against which such Tax Indemnitee is not satisfactorily indemnified, or (III) in the case of any Tax Indemnitee, unless Lessee shall have given such Tax Indemnitee prior timely written notice of such requirements;
(xiii) as to the Equity Tax Indemnitee, Taxes that are imposed with respect to any period after both of the following shall have occurred: (x) the termination of the Lease Term pursuant to Section 6, 10, 11 or 22 of the Lease (unless the Equipment is thereafter required to be returned, in which case, after such return) and (y) the payment by the Lessee of all amounts due and owing by it to the Equity Tax Indemnitee under the Lease and other Operative Agreements; provided, however, that the exclusion set forth in this clause (xiii) shall not apply (I) to Taxes to the extent such Taxes relate to events occurring or matters arising prior to or simultaneously with such return or termination and (II) so long as a Lease Event of Default has occurred and is continuing;
(xiv) as to any Lender Tax Indemnitee, Taxes in the nature of an Indemnified Party intangible or similar tax upon or with respect to the value of the interest of such Lender Tax Indemnitee in the Indenture Estate, in any Equipment Note or Pass Through Certificate imposed as a result of such Lender Tax Indemnitee or any Affiliate of such Lender Tax Indemnitee being organized in, or conducting activities unrelated to the contemplated transactions in, the jurisdiction imposing such Taxes, provided however, that this exclusion shall not apply to the incremental amount of such taxes that arise from such Lender Tax Indemnitee's participation in the transactions contemplated herein;
(xv) Taxes imposed on the Owner Trustee, the Pass Through Trustee or the Indenture Trustee that are on, based on or measured by any trustee fees for services rendered by such Tax Indemnitee;
(xvi) Except as set forth in Section 7.2, Taxes imposed on any Tax Indemnitee, or any other than transfers person who, together with such Tax Indemnitee, is treated as one employer for employee benefit plan purposes, as a result of, or in connection with, any "prohibited transaction," within the meaning of the provisions of the Code or regulations thereunder or as set forth in Section 406 of ERISA or the regulations implementing ERISA or Section 4975 of the Code or the regulations thereunder;
(xvii) Taxes for so long as (x) such Taxes are being contested in accordance with the provisions of Section 7.1 (e) hereof, (y) the Lessee is in compliance with its obligations under Section 7.1(e), and (z) the payment of such Taxes is not required pursuant to Section 7.1(e); provided, however, that with respect to a Lender Tax Indemnitee this clause (xvii) shall only apply so long as the non-payment of the contested Tax does not result in any Lender Tax Indemnitee failing to receive all required payments when due under the Equipment Notes;
(xviii) as to any Equity Tax Indemnitee, Taxes as to which occur such Tax Indemnitee is indemnified pursuant to the Tax Indemnity Agreement;
(xix) any Taxes imposed on or with respect to any Certificateholder;
(xx) Taxes imposed on a Tax Indemnitee as a result of the authorization or giving of any future amendments, supplements, waivers or consents by such Tax Indemnitee with respect to any Operative Agreement other than (w) in connection with the exercise of any rights under remedies pursuant to Section 16 15 of the Lease or Exhibit D hereofwhile a Lease Event of Default has occurred and is continuing, (x) such as have been proposed by the Lessee or consented to by the Lessee in writing, (y) those that are required by applicable law or pursuant to the terms of the Operative Agreements, or (z) those that may be necessary or appropriate to, and are in conformity with, any remedies under amendment, supplement, waiver or consent proposed by the Mortgage)Lessee or consented to by the Lessee in writing;
(viixxi) Income Taxes imposed on under Section 6707 or Section 6708 of the Trust Code; provided, however, that this clause (xxi) shall not apply to any Taxes imposed under Section 6707(a) to the extent such Taxes arise (x) as a result of the Lessee or any Sublessee providing the Designated Organizer, (within the meaning of Temporary Treasury Regulation Section 301.6111-1T, Q/A 38 and 39) any false or misleading information or (y) as a result of the Lessee failing to provide the Designated Organizer or Tax Indemnitee with any item of information that is required under Section 6111 or Section 6112 of the Code or the Owner Participant other than Covered Income Taxesregulations promulgated thereunder, which the Lessee possesses, that is requested by the Designated Organizer or Tax Indemnitee from the Lessee; and
(viiixxii) Taxes other than as addressed in clause (xxi) of this Section 7.1(c), interest, penalties and additions to tax that would not have been imposed by way but for the failure of deduction or withholding by the U.S. Federal Government on payments a Tax Indemnitee to a Person who is not a United States Person orfile any required document timely and properly, except for Covered Income Taxesto the extent that such failure is the direct result of Lessee's breach of its obligations under Section 7.1(g) or of a Lease Event of Default. For purposes of this section 7.1(c), by any foreign government on payments reference to the Lessee shall include the Lessee and any Person (providedRelated Party of the Lessee. Furthermore, that if the activities described in Section 7.1(m) shall not constitute an event described in any case any such Taxes are imposed as a result of a change in a tax treaty after the date hereof that is not already published as a proposed change on the date hereof or on the date an Indemnified Party becomes an Indemnified Party, Lessee and the applicable Indemnified Parties agree to negotiate in good faith a restructuring of the transaction contemplated hereby to eliminate such Taxes without changing the economic terms exclusions of this transaction, but if such Taxes are not so eliminated within 90 days from the date of the imposition of such Taxes, Lessor may (unless Lessee agrees to extend the indemnity provided for in Section 14(a) above to cover such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition required under Section 13 hereof on the date so selected by Lessor in its notice of termination7.1(c).
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Taxes Excluded. The indemnity provided for in Section 14(a7.1 (b) above shall not extend to any Taxes not due in whole or part to: (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(a) above shall not extend to any of the followinginclude:
(i) in the case of the Lessor and its respective successorsas to any Equity Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by, the income, capital, franchises, excess profits or conduct of business (other than taxes which are in the nature of sales, use, value added, excise, license or property taxes) of such Indemnified Party any Income Tax imposed by the United States of America or federal government (but not excluding any state or local or foreign government or other taxing authority (collectively, "Income Taxes") other than "Covered Income Taxes" (as such term is defined belowTax required to make a payment on an After-Tax Basis);
(ii) in the case of each Financier and the Security Trustee and their respective successorsas to any Equity Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by income, receipts, capital, franchises or conduct of business of such Indemnified Party, other than such Taxes any Income Tax imposed by any state, local or foreign government or taxing authority of any jurisdiction or subdivision thereof (but not excluding an Income Tax required to make a payment on an After-Tax Basis); provided, however, that this exclusion shall not apply to the extent such Taxes relate directly or indirectly to (I) the use, location of any item of the Equipment or the activities of the Lessee in the taxing jurisdiction, (II) the presence or organization of the Lessee in the taxing jurisdiction, (III) any payment by or on behalf of the Lessee being made from the taxing jurisdiction, or (IV) the execution or delivery of any Operative Agreement by the Lessee in the taxing jurisdiction; provided, further, however, that the preceding proviso shall not apply to any Taxes that are solely attributable to the fact that the Owner Trust, the Owner Trustee (other than in its individual capacity) or the Owner Participant has its legal domicile or a principal place of business in the taxing jurisdiction (determined without regard to the transactions contemplated by the Operative Agreements);
(iii) as to any Equity Tax Indemnitee, any Tax that is imposed as a result of the voluntary sale, transfer or other disposition, or any involuntary sale, transfer or other disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Equity Tax Indemnitee is a debtor, by the Lessor or the Owner Participant of any of its rights with respect to any item of Equipment or the Owner Participant's interest in the Trust Estate unless such sale, transfer or other disposition is during the continuance of a Lease Event of Default or is otherwise pursuant to the Lessor's exercise of its rights under the Operative Agreements or is as a result of (x) any substitution, replacement, improvement, modification or addition to the Equipment or any portion thereof by the Lessee, a Sublessee, or a Related Person to the Lessee or Sublessee, (y) a requirement of the Lessee in the Operative Agreements or under applicable law, or (z) a purchase of the Equipment or any Unit thereof pursuant to the Lease or the other Operative Agreements;
(iv) as to any Equity Tax Indemnitee, any Taxes to the extent they exceed the amount Taxes that would have been imposed had the Aircraft never been operated to or used in if such jurisdiction;
(iii) Taxes relating to the Aircraft for any period after the expiration or early termination of the Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise of any remedies pursuant to Section 16 hereof following the occurrence of an Event of Default or pursuant to Exhibit D shall not be excluded from the indemnity provided for in Section 14(a) hereof;
(iv) Taxes imposed against the Owner Trustee or Security Trustee with respect to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust AgreementEquity Tax Indemnitee were a U.S. Person;
(v) as Taxes imposed on a Lender Tax Indemnitee, excluding the Policy Tax Indemnitee, with respect to any Indemnified Partyperiod after the payment in full of the Equipment Notes; provided that the exclusion set forth in this clause (v) shall not apply to Taxes to the extent such Taxes (I) relate directly or indirectly to events occurring or matters arising prior to or simultaneously with the date on which all of the principal of, Taxes interest on and all other amounts payable in respect of the Aircraft Equipment Notes have been paid in full or the Operative Agreements which arise out (II) result from a Lease Event of or are caused by the willful misconduct or gross negligence of such Indemnified Party, or the breach by such Indemnified Party of any express covenant, agreement or representation in the Operative AgreementsDefault that has occurred and is continuing;
(vi) Taxes imposed on the Policy Tax Indemnitee with respect to any period after the payment in full of all Equipment Notes, all Policy Provider Amounts and Policy Provider Reimbursement Amounts; provided that the exclusion set forth in this clause (vi) shall not apply to Taxes to the extent such Taxes (I) relate directly or indirectly to events occurring or matters arising prior or simultaneously with the date on which all of the principal of, interest on and other amounts payable in respect of the Equipment Notes, all Policy Provider Amounts and all Policy Provider Reimbursement Amounts have been paid in full or (II) result from a Lease Event of Default that has occurred and is continuing;
(vii) as to any Tax Indemnitee, Taxes to the extent caused by any misrepresentation or breach of warranty or covenant by such Tax Indemnitee or a Related Party of such Tax Indemnitee under any of the Operative Agreements (except to the extent such misrepresentations or breach is attributable to any act or omissions of the Lessee or any sublessee, transferee or assignee of the Lessee) or by the gross negligence or willful misconduct of such Tax Indemnitee or such Related Party;
(viii) as to any Lender Tax Indemnitee, Taxes that become payable as a result of a voluntary sale, assignment, transfer or other disposition, or any involuntary sale, transfer or other disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Lender Tax Indemnitee is a debtor, by reason of any transfer by an Indemnified Party such Lender Tax Indemnitee of all or any portion of its interest in the AircraftEquipment or any part thereof, the MortgageEquipment Notes, the Trust Estate, the Indenture Estate or any interest of the Operative Agreements or rights created thereunder; provided, however, that is this clause (viii) shall not apply in the case of any Operative Agreement sale assignment, transfer or shares other disposition (whether voluntary of stock in an Indemnified Party (other than transfers involuntary) which occur occurs as a result of or while a Lease Event of Default has occurred and is continuing or which occurs as a result of (v) the exercise of remedies for a Lease Event of Default, (w) any rights under Section 16 substitution, replacement, improvement, modification or Exhibit D hereof, addition to the Equipment or any remedies portion thereof by a Lessee, Sublessee or a Related Person to the Lessee or Sublessee, (x) a requirement in the Operative Agreements or under applicable law, (y) a purchase of the MortgageEquipment or any Unit thereof pursuant to the Lease or the other Operative Agreements or (z) any assignment to the Policy Provider pursuant to the Policy Provider Documents;
(ix) as to any Lender Tax Indemnitee, Taxes imposed as the result of such Lender Tax Indemnitee not being a U.S. Person;
(x) as to any Lender Tax Indemnitee, Income Taxes or transfer taxes relating to any payments of principal of, interest on or Make Whole Amount or other amounts in respect thereof, if any, on the Equipment Notes or the Pass Through Certificates paid to such Tax Indemnitee provided, that this clause (x) should not be interpreted to prevent any payment from being made on an After-Tax Basis, and provided further that this clause (x) shall not apply to Taxes attributable to (I) the use or location of any item of Equipment or the activities of the Lessee in the taxing jurisdiction, (II) the presence or organization of the Lessee in the taxing jurisdiction or (III) the execution or delivery of any Operative Agreement in the taxing jurisdiction; provided, further, however, the preceding provision shall not apply to any jurisdiction where such Lender Tax Indemnitee has its legal domicile or a place of business (determined without regard to the transitions contemplated by the Operative Agreements);
(viixi) Income Taxes to the extent directly resulting from or that would not have been imposed but for (x) in the case of Taxes imposed on or with respect to any Equity Tax Indemnitee, the Trust existence of any Lessor Liens with respect to such Equity Tax Indemnitee, or (y) in the Owner Participant other than Covered Income Taxes; andcase of Taxes imposed on or with respect to any Lender Tax Indemnitee, the existence of any Liens attributable to the Indenture Trustee that are unrelated to the transactions contemplated by the Operative Agreements or Liens attributable to the Pass Through Trustee that are unrelated to the transactions contemplated by the Operative Agreements;
(viiixii) Taxes imposed by way on a Tax Indemnitee to the extent that such Taxes would not have been imposed upon such Tax Indemnitee but for any failure of deduction such Tax Indemnitee or withholding a Related Party of such Tax Indemnitee to comply with (x) any certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes, if such compliance is required under the laws or regulations of such jurisdiction to obtain or establish relief or exemption from or reduction in such Taxes and the Tax Indemnitee or such Related Party was eligible to comply with such requirement or (y) any other certification, information, documentation, reporting or other similar requirements under the Tax laws or regulations of the jurisdiction imposing such Taxes that would establish entitlement to otherwise applicable relief or exemption from such Taxes and the Tax Indemnitee or such Related Party was eligible to comply with such requirement; provided, however, that the exclusion set forth in this clause (xii) shall not apply (I) if such failure to comply was due to a failure of the Lessee to provide such Tax Indemnitee reasonable assistance on request in complying with such requirement, (II) if in the good faith judgment of such Tax Indemnitee there is a risk of adverse consequence to such Tax Indemnitee or any Affiliate from such compliance against which such Tax Indemnitee is not satisfactorily indemnified, or (III) in the case of any Tax Indemnitee, unless Lessee shall have given such Tax Indemnitee prior timely written notice of such requirements;
(xiii) as to the Equity Tax Indemnitee, Taxes that are imposed with respect to any period after both of the following shall have occurred: (x) the termination of the Lease Term pursuant to Section 6, 10, 11 or 22 of the Lease (unless the Equipment is thereafter required to be returned, in which case, after such return) and (y) the payment by the U.S. Federal Government on payments Lessee of all amounts due and owing by it to the Equity Tax Indemnitee under the Lease and other Operative Agreements; provided, however, that the exclusion set forth in this clause (xiii) shall not apply (I) to Taxes to the extent such Taxes relate to events occurring or matters arising prior to or simultaneously with such return or termination and (II) so long as a Person who Lease Event of Default has occurred and is not a United States Person or, except for Covered Income Taxes, by any foreign government on payments continuing;
(xiv) as to any Person (providedLender Tax Indemnitee, that if Taxes in the nature of an intangible or similar tax upon or with respect to the value of the interest of such Lender Tax Indemnitee in the Indenture Estate, in any case any such Taxes are Equipment Note or Pass Through Certificate imposed as a result of a change such Lender Tax Indemnitee or any Affiliate of such Lender Tax Indemnitee being organized in, or conducting activities unrelated to the contemplated transactions in, the jurisdiction imposing such Taxes, provided however, that this exclusion shall not apply to the incremental amount of such taxes that arise from such Lender Tax Indemnitee's participation in a tax treaty after the date hereof transactions contemplated herein;
(xv) Taxes imposed on the Owner Trustee, the Pass Through Trustee or the Indenture Trustee that are on, based on or measured by any trustee fees for services rendered by such Tax Indemnitee;
(xvi) Except as set forth in Section 7.2, Taxes imposed on any Tax Indemnitee, or any other person who, together with such Tax Indemnitee, is not already published treated as one employer for employee benefit plan purposes, as a proposed change on result of, or in connection with, any "prohibited transaction," within the date hereof or on the date an Indemnified Party becomes an Indemnified Party, Lessee and the applicable Indemnified Parties agree to negotiate in good faith a restructuring meaning of the transaction contemplated hereby to eliminate such provisions of the Code or regulations thereunder or as set forth in Section 406 of ERISA or the regulations implementing ERISA or Section 4975 of the Code or the regulations thereunder;
(xvii) Taxes without changing the economic terms of this transaction, but if for so long as (x) such Taxes are being contested in accordance with the provisions of Section 7.1 (e) hereof, (y) the Lessee is in compliance with its obligations under Section 7.1(e), and (z) the payment of such Taxes is not required pursuant to Section 7.1(e); provided, however, that with respect to a Lender Tax Indemnitee this clause (xvii) shall only apply so eliminated within 90 days from long as the date non-payment of the imposition of contested Tax does not result in any Lender Tax Indemnitee failing to receive all required payments when due under the Equipment Notes;
(xviii) as to any Equity Tax Indemnitee, Taxes as to which such Taxes, Lessor may Tax Indemnitee is indemnified pursuant to the Tax Indemnity Agreement; (unless Lessee agrees xix) any Taxes imposed on or with respect to extend the indemnity provided for in Section 14(a) above to cover such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition required under Section 13 hereof on the date so selected by Lessor in its notice of termination).any Certificateholder;
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Taxes Excluded. The indemnity provided for in Section 14(a) above shall not extend to any Taxes not due in whole or part to: paragraph (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(ab) above shall not extend to any of the following:
(i) in In the case of the Lessor and its respective successors, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured byOwner Participant, the incomeOwner Trustee or the Trust Estate, capitalIncome Taxes (as defined in Section 7.1(l), franchises, excess profits or conduct of business (other than taxes which are in the nature of sales, use, value added, excise, license or property taxesbelow) of such Indemnified Party imposed by (A) the United States federal government, other than any United States federal Income Taxes imposed by way of America deduction or withholding upon or with respect to payments on any Equipment Notes, together with any penalties, fines, additions to Tax or interest related thereto (provided that this subclause (A) shall not be construed as preventing Lessee from recouping any such deduction or withholding from the Indenture Trustee, the Pass Through Trustee or any Certificateholder or as giving to the Indenture Trustee a right to indemnification by the Lessee for Taxes payable pursuant to Section 6.09 of the Indenture), (B) any state or local or foreign government or other taxing authority tax jurisdiction in the United States (collectively, "Income Taxes") other than "Covered Income Taxes" (as unless such term is defined below);Tax
(ii) Taxes imposed with respect to any period after the earliest of (x) the return of possession of the Equipment to the Owner Participant or the placement of the Equipment in storage at the request of the Owner Participant, in either case pursuant to Section 6 of the Lease, (y) the termination of the Lease Term pursuant to Section 22.1 or Section 22.3 of the Lease, or (z) the discharge in full of the Lessee's obligation to pay the Termination Value or the Stipulated Loss Value and all other amounts due, if any, under Section 10 or 11.2 of the Lease, as the case of each Financier and may be, with respect to the Security Trustee and their respective successors, transferees or assigns permitted under Equipment; provided that the terms of the Operative Agreements, taxes on, based on, or measured by income, receipts, capital, franchises or conduct of business of such Indemnified Party, other than such exclusion set forth in this clause (ii) shall not apply to Taxes imposed by any taxing authority of any jurisdiction to the extent such Taxes exceed the amount that would have been imposed had the Aircraft never been operated relate to events occurring or matters arising prior to or used in simultaneously with such jurisdictiontime;
(iii) As to any Tax Indemnitee, Taxes relating to the Aircraft for extent caused by any period after misrepresentation or breach of warranty or covenant under the expiration Operative Agreements or early termination by the gross negligence or willful misconduct of the Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise of any remedies pursuant to Section 16 hereof following the occurrence of an Event of Default or pursuant to Exhibit D shall not be excluded from the indemnity provided for in Section 14(a) hereofsuch Tax Indemnitee;
(iv) Taxes imposed against the Owner Trustee or Security Trustee with respect As to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust Agreement;
(v) as to any Indemnified PartyTax Indemnitee, Taxes in respect of the Aircraft or the Operative Agreements which arise out of or are caused by the willful misconduct or gross negligence of such Indemnified Party, or the breach by such Indemnified Party of any express covenant, agreement or representation in the Operative Agreements;
(vi) Taxes which become payable as a result of a sale, assignment, transfer or other disposition (whether voluntary or involuntary) by reason of any transfer by an Indemnified Party such Tax Indemnitee of all or any portion of its interest in the Aircraft, the MortgageEquipment or any part thereof, the Trust Estate, Estate or any interest in any of the Operative Agreement Agreements or shares of stock in an Indemnified Party (rights created thereunder other than transfers which occur as a result of the substitution, modification or improvement of the Equipment or any part thereof or a disposition which occurs as the result of the exercise of remedies for a Lease Event of Default, any rights under Section 16 disposition which occurs during the continuance of a Lease Event of Default or Exhibit D hereofa purchase of any Unit pursuant to the Lease; provided, that,
(v) Taxes which result from the Owner Trustee's engaging on behalf of the Trust Estate in transactions unrelated to those permitted or contemplated by the Operative Agreements;
(vi) As to any remedies under Tax Indemnitee, Taxes to the Mortgage);extent they exceed the Taxes that would have been imposed had the initial Tax Indemnitee not transferred, sold or otherwise disposed of any interest held by such Tax Indemnitee pursuant to any of the Operative Agreements; and
(vii) Income Taxes imposed on the Trust or Owner Trustee based on the Owner Participant other than Covered Income Taxes; and
(viii) Taxes imposed by way of deduction or withholding by Trustee's fee for services under the U.S. Federal Government on payments to a Person who is not a United States Person or, except for Covered Income Taxes, by any foreign government on payments to any Person (provided, that if in any case any such Taxes are imposed as a result of a change in a tax treaty after the date hereof that is not already published as a proposed change on the date hereof or on the date an Indemnified Party becomes an Indemnified Party, Lessee and the applicable Indemnified Parties agree to negotiate in good faith a restructuring of the transaction contemplated hereby to eliminate such Taxes without changing the economic terms of this transaction, but if such Taxes are not so eliminated within 90 days from the date of the imposition of such Taxes, Lessor may (unless Lessee agrees to extend the indemnity provided for in Section 14(a) above to cover such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition required under Section 13 hereof on the date so selected by Lessor in its notice of termination)Trust Agreement.
Appears in 1 contract
Taxes Excluded. The indemnity provided for in Section 14(a) above shall not extend to any Taxes not due in whole or part to: (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(aparagraph 13(b) above shall not extend to any of the following:following (in each case, except in the case of Taxes otherwise indemnifiable under the Operative Documents, additional amounts necessary to indemnify a Tax Indemnitee for such Taxes on an After-Tax Basis): Participation Agreement
(1) Federal income taxes;
(2) in the case of each Tax Indemnitee which is a Lender, (i) net income taxes and (ii) other taxes that would not have been incurred but for such Indemnitee or a person related thereto being organized in the jurisdiction imposing such taxes or conducting activities therein that are unrelated to the contemplated transactions;
(3) in the case of each Certificate Holder, (i) net income taxes other than net income taxes imposed by jurisdictions in which such Indemnitee is not otherwise subject to such taxes to the extent such net income taxes exceed the net income taxes that would have been payable if the Lease had been treated as a secured loan and (ii) other taxes that would not have been incurred but for such Indemnitee or a person related thereto being organized in the jurisdiction imposing such taxes or conducting activities therein that are unrelated to the contemplated transactions;
(4) in the case of the Lessor, income, franchise, conduct of business or similar taxes that are imposed on the Lessor and its respective successorsnot the Certificate Holders and that, transferees if imposed on the Certificate Holders, would not have been indemnified against (including all Taxes imposed on Lessor by any taxing authority as a result of being treated as an entity other than a "flow-through" entity or assigns permitted under a "disregarded" entity, but subject to the terms final "notwithstanding" provision at the end of the Operative Agreements, taxes on, based on, this Section 13(c));
(5) Taxes imposed on or measured byby the net or gross income, the excess profits, receipts, minimum or alternative minimum taxable income, capital, franchisesnet worth, excess profits tax preferences, accumulated earnings or capital gains of a Tax Indemnitee or that are conduct of business, doing business or franchise Taxes of such Tax Indemnitee (other than taxes any Taxes which are, or are in the nature of of, sales, use, value addedtransfer, excise, license rental, license, ad valorem or property taxesTaxes imposed by reason of the location, use, operation or presence of the Property or any part thereof or a Person which is the Lessee, any sublessee, any sub-sublessee, assignee or any other Person using through any of the foregoing (including any Affiliate of any of the foregoing, but excluding the Lessor, any Participant or any Affiliate of any such excluded Person) of (each, a "LESSEE PERSON") in such Indemnified Party jurisdiction or the fact that any payment by a Lessee Person contemplated by the Operative Documents is made from such jurisdiction) ("INCOME TAXES") imposed by the United States of America or any state or local or foreign government or other taxing authority within the United States or by any governmental or taxing authority of a foreign country, or any political subdivision or taxing authority thereof, or by any international taxing authority); provided, however, provisions of this clause (collectively, "5) relating to Income Taxes") Taxes shall not exclude from the indemnity described in this Section 13 any state or local Income Taxes (other than "Covered Income Taxes" Taxes based on or measured by net income) imposed by reason of the location, use, operation or presence of any Improvement or any part thereof in any state in which the Platform or the Property is located, other than any other state which such Tax Indemnitee agrees in writing (as such term on or prior to any Participation Agreement Improvements becoming subject to the Operative Documents) is defined below)excluded from the indemnity otherwise implied by the proviso to this clause 5;
(ii6) in the case Taxes arising out of each Financier and the Security Trustee and their respective successors, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by incomeacts, receiptsomissions, capitalevents or periods of time (or any combination of the foregoing) which occur after (and are not attributable to acts, franchises omissions or conduct events occurring contemporaneously with or prior to) the payment in full of business all amounts payable by the Lessee pursuant to and in accordance with the Operative Documents, or the earlier discharge in full of such Indemnified Partythe Lessee's payment obligations under and in accordance with the Lease and the other Operative Documents, other than such Taxes imposed by any taxing authority and the earliest of any jurisdiction to the extent such Taxes exceed the amount that would have been imposed had the Aircraft never been operated to or used in such jurisdiction;
(iiix) Taxes relating to the Aircraft for any period after the expiration or early termination of the Lease Term and return of the Aircraft by LesseeProperty in accordance with the return provisions of the Lease, (y) the termination of the Lease in accordance with the applicable provisions of the Lease and return or disposition of the Property in accordance with the Lease, or (z) the termination of the Lease in accordance with the applicable provisions of the Lease and the transfer of all right, title and interest in the Property to the Lessee pursuant to its exercise of any of its purchase options (other than sales or other transfer taxes as imposed thereon) except that that, notwithstanding anything to the contrary, Taxes incurred in connection with the exercise of any remedies pursuant to Section 16 hereof following the occurrence of an a Lease Event of to Default or pursuant to Exhibit D shall not be excluded from the indemnity provided for in Section 14(a) hereofindemnity;
(iv7) Taxes imposed against the Owner Trustee or Security Trustee with respect to any fees received by it for services rendered in its capacity on a Tax Indemnitee as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust Agreement;
(v) as to any Indemnified Party, Taxes in respect a result of the Aircraft or the Operative Agreements which arise out of or are caused by the willful misconduct or gross negligence of such Indemnified PartyTax Indemnitee (other than gross negligence or willful misconduct not actually committed by but instead imputed to, such Indemnitee by reason of such Tax Indemnitee's participation in the transactions and entering into the Operative Documents) or the breach by such Indemnified Party any Tax Indemnitee of any express covenantrepresentation, agreement warranty or representation covenant set forth in the Operative AgreementsDocuments;
(vi) 8) Taxes imposed on a Tax Indemnitee which become became payable by reason of any transfer or disposition by an Indemnified Party such Tax Indemnitee of any interest in some or all of the Platform or the Property, the Operative Documents, any other Tax Indemnitee or the Trust Estate other than (A) Taxes that result from transfers or dispositions which occur while a Lease Event of Default has occurred and is continuing or (B) Taxes that result from any transfer or disposition to the Lessee or at the Lessee's direction pursuant to the terms of the Lease (other than Section 19(b) thereof if clause (A) of this Section 13(c)(8) is not applicable);
(9) Taxes imposed upon the Owner Trustee with respect to any trustee's fees for services rendered in its capacity as trustee;
(10) Taxes that have been included in Allocated Construction Cost or Transaction Expenses;
(11) Taxes that would not have been imposed but for the situs of organization of a Tax Indemnitee, the place of business of a Tax Indemnitee or the activities of a Tax Indemnitee that are unrelated to the transactions Participation Agreement contemplated by the Operative Documents, in each case, in the jurisdiction imposing such Taxes (other than any such place of business or activities attributable to any Lessee Person's activities or the use, location, operation or registration of the Property or any portion part thereof in such jurisdiction);
(12) Taxes that result from a failure by a Tax Indemnitee to comply with any certification or other procedure reasonably required by any applicable law as a condition to any exemption from, or reduction of, such Tax to which such Tax Indemnitee would be entitled, so long as
(a) Lessee shall have notified such Tax Indemnitee promptly of such requirement, (b) no such procedure would expose such Tax Indemnitee, in its good faith determination, to any materially adverse consequences and (c) such failure is not due to Lessee's failure to provide information reasonably requested or reasonable assistance in complying with such requirement, it being understood that all certification requirements with respect to United States withholding taxes shall be deemed to be reasonably required and the foregoing clauses (a) through (c) shall be deemed to have been satisfied by the Lessee;
(13) Except with respect to the additional amount necessary to indemnify Taxes, otherwise required to be indemnified under the Operative Documents on an After-Tax Basis, on an After-Tax Basis, Taxes imposed on or against or payable by a transferee of a Tax Indemnitee to the extent of the excess of such Taxes over the amount of such Taxes which would have been imposed and indemnified hereunder had there not been a transfer by the original Tax Indemnitee from which such transferee derives its interest in the Aircraft, the Mortgage, the Trust EstateProperty, any interest in any part thereof, such Indemnitee or the Operative Agreement or shares of stock in an Indemnified Party (Documents, other than transfers which occur a transfer following a Lease Event of Default; and
(14) Taxes imposed on Lessor that arise as a result of Lessor not being considered a US Person as defined in 7701(a)(30) of the exercise of any rights under Section 16 or Exhibit D hereof, or any remedies under the Mortgage);
(vii) Income Taxes imposed on the Trust or the Owner Participant other than Covered Income Taxes; and
(viii) Taxes imposed by way of deduction or withholding by the U.S. Federal Government on payments to a Person who is not a United States Person orCode, except for Covered Income Taxes, by any foreign government on payments to any Person (provided, that if in any case any such Taxes are imposed as a result of a change in a US tax treaty after the date hereof that is not already published as a proposed change on the date hereof law or on the date an Indemnified Party becomes an Indemnified Party, Lessee and the applicable Indemnified Parties agree to negotiate in good faith a restructuring treaty. Notwithstanding any of the transaction contemplated hereby to eliminate such Taxes without changing the economic terms of this transactionexclusions otherwise set forth in Section 13(c)(1) through (14), but if such Taxes are not so eliminated within 90 days from the date of the imposition of such Taxes, Lessor may (unless Lessee agrees to extend the indemnity provided for set forth in Section 14(a13(b) above shall apply to cover such Taxes) elect any Texas franchise taxes imposed on or with respect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition required under Section 13 hereof on the date so selected by Lessor in its notice of termination).if:
Appears in 1 contract
Samples: Participation Agreement (Cal Dive International Inc)
Taxes Excluded. The indemnity provided for in Section 14(a) above shall not extend to any Taxes not due in whole or part to: paragraph (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(ab) above shall not extend to any of the following:
(i) Taxes which are based upon, measured by or in respect to gross or net income or gross or net receipts (including (x) commercial activity taxes, business activity taxes and other similar taxes that are based upon, measured by or in respect of such income or receipts and (y) all Taxes which are in lieu of a gross or net income tax or gross or net receipts tax); Taxes on items of preference or any minimum tax; value added taxes; business and occupation taxes; franchise taxes; or Taxes based upon Owner Participant’s or Lessor’s capital stock or net worth; provided that there shall not be excluded under this subparagraph (i) any (x) sales, use, property, value added, license, rental, ad valorem or Taxes in the nature thereof and (y) any Taxes imposed by any government or taxing authority of or in a foreign country if, and to the extent, such Taxes are imposed as a result of (A) the operation, presence or registration in such jurisdiction of any Unit or part thereof, (B) the presence in such jurisdiction of a permanent establishment or fixed place of business of any Lessee Person, (C) the residence, nationality or place of management and control of any Lessee Person, (D) the payment by any Lessee Person of any amount due under the Operative Agreements which is treated as paid from such jurisdiction or (E) any combination of factors (A)-(D); provided, further, that in the case of a Loan Participant, there shall not be excluded under this subparagraph (i) Taxes imposed by withholding or deduction.
(ii) In the case of a Loan Participant, Taxes imposed by withholding or deduction, unless and to the extent such Loan Participant is a “resident” of the Federal Republic of Germany, as defined for purposes of the Treaty as in effect on the Delivery Date in the case of the Lessor Original Loan Participant and its respective successors, transferees or assigns permitted under as in effect on the terms of the Operative Agreements, taxes on, based on, or measured by, the income, capital, franchises, excess profits or conduct of business (date a Loan Participant other than taxes which the Original Loan Participant acquires its interest in an Equipment Note or other Operative Agreement, and such Taxes are in the nature of sales, use, value added, excise, license or property taxes) of such Indemnified Party imposed by the United States as a result of America a Change in Tax Law on or with respect to the payment of principal, interest or any state or local or foreign government other sums payable under an Equipment Note or other taxing authority (collectively, "Income Taxes") other than "Covered Income Taxes" (as amounts payable to such term is defined below);
(ii) in the case of each Financier and the Security Trustee and their respective successors, transferees or assigns permitted holder under the terms of the Operative AgreementsAgreements by Lessee, taxes on, based on, Indenture Trustee or measured by income, receipts, capital, franchises or conduct of business of such Indemnified Party, other than such Taxes imposed by any taxing authority of any jurisdiction to the extent such Taxes exceed the amount that would have been imposed had the Aircraft never been operated to or used in such jurisdictionOwner Trustee;
(iii) Taxes relating imposed with respect to the Aircraft for any period after the expiration earliest of (x) the return of possession of the Equipment to Owner Participant or early the placement of the Equipment in storage at the request of Owner Participant, in either case pursuant to Section 6 of the Lease and only so long as no Lease Event of Default shall have occurred and be continuing, (y) the termination of the Lease Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise of any remedies pursuant to Section 16 hereof following 22.1 of the occurrence Lease, or (z) the discharge in full of an Event Lessee’s obligation to pay the Termination Value or the Stipulated Loss Value and all other amounts due, if any, under Section 10 or 11.2 of Default or pursuant the Lease, as the case may be, with respect to Exhibit D the Equipment; provided that the exclusion set forth in this clause (ii) shall not be excluded from apply to Taxes to the indemnity provided for in Section 14(a) hereofextent such Taxes relate to events occurring or matters arising prior to or simultaneously with such time (including Taxes on or with respect to any payment to a Tax Indemnitee due after the termination or expiration of the Lease if such payment relates to events occurring or matters arising prior to or simultaneously with such time);
(iv) Taxes imposed against the Owner Trustee or Security Trustee with respect to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust Agreement;
(v) as to any Indemnified Party, Taxes in respect of the Aircraft or the Operative Agreements a Tax Indemnitee which arise out of or are caused by any breach by such Tax Indemnitee of any of its representations, warranties or covenants in any of the willful misconduct or gross negligence of such Indemnified PartyOperative Agreements, or the breach by gross negligence or willful misconduct of such Indemnified Party of any express covenant, agreement or representation in the Operative AgreementsTax Indemnitee;
(viv) Taxes which become payable as a result of a sale, assignment, transfer or other disposition (whether voluntary or involuntary) by reason of any transfer by an Indemnified Party a Tax Indemnitee of all or any portion of its interest in the Aircraft, the MortgageEquipment or any part thereof, the Trust Estate, Estate or any interest in any of the Operative Agreement Agreements or shares of stock in an Indemnified Party (rights created thereunder other than transfers which occur as a result disposition attributable to (v) a Lease Event of Default (but only while a Lease Event of Default has occurred and is continuing), (w) an Event of Loss, (x) the exercise by Lessee of the termination right pursuant to Section 10 of the Lease, (y) the exercise by Lessee of the purchase rights pursuant to Section 23 of the Lease and (z) the replacement, substitution, subleasing or interchange of any rights under Section 16 Unit by any Lessee Person;
(vi) Taxes imposed with respect to any fees received by Indenture Trustee or Exhibit D hereof, or any remedies under the Mortgage)Owner Trustee for services rendered in its capacity as trustee;
(vii) Income Taxes imposed on which have been included in the Trust or the Owner Participant other than Covered Income Taxes; andEquipment Cost;
(viii) Taxes imposed by way for which Lessee is obligated to indemnify Owner Participant or Owner Trustee under the Tax Indemnity Agreement;
(ix) Taxes which result from Owner Trustee’s engaging on behalf of deduction the Trust Estate acting upon the instruction of Owner Participant in transactions other than those permitted or withholding contemplated by the U.S. Federal Government on payments Operative Agreements unless attributable to a Person who is not a United States Person orthe exercise of default remedies pursuant to Article V of the Trust Agreement;
(x) Taxes imposed pursuant to sections 6707, except for Covered Income Taxes, by any foreign government on payments 6707A or 6708 of the Code;
(xi) As to any Person (provided, that if in Tax Indemnitee any case any such Taxes are imposed as a result of any modification, amendment, supplement, consent, or waiver to any Operative Agreement entered into by such Tax Indemnitee or any related Tax Indemnitee thereof other than any modification, amendment, supplement, consent, or waiver (A) consented to in writing, requested in writing or initiated by the Lessee, (B) while a change Lease Event of Default shall have occurred and is continuing or (C) that is required by the Operative Agreements or by law;
(xii) Taxes imposed against a particular Indemnified Person resulting from any prohibited transaction, within the meaning of section 4975(c)(1) of the Code, occurring with respect to the purchase or holding of Equipment Notes or circumstances when such Indemnified Person or any Person in such Indemnified Person’s Related Indemnitee Group caused such purchase or holding and knew it would constitute such a prohibited transaction;
(xiii) Taxes imposed on a Tax Indemnitee to the extent resulting from a failure of such Tax Indemnitee to provide any certificate, documentation, or other evidence requested by Lessee in a tax treaty after the date hereof that is not already published timely manner and required under applicable law as a proposed change condition to the allowance of a reduction in such Tax, but only if such Tax Indemnitee was legally eligible to provide such certificate, document or other evidence (based on the date hereof or on the date an Indemnified Party becomes an Indemnified Party, Lessee and the applicable Indemnified Parties agree to negotiate in a good faith judgment of such Tax Indemnitee that it is legally entitled and eligible to do so) without unindemnified adverse consequences (other than certain de minimis costs);
(xiv) Taxes imposed on a restructuring Tax Indemnitee to the extent consisting of interest, penalties, fines or additions to Tax in connection with the transaction contemplated hereby filing of, or failure to eliminate such Taxes without changing file, any tax return, the economic terms payment of, or failure to pay any Tax, or the conduct of this transaction, but if such Taxes are not so eliminated within 90 days any proceeding in respect thereof unless resulting from the date of the imposition of such Taxes, Lessor may (unless failure by Lessee agrees to extend the indemnity provided for in Section 14(a) above to cover such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition required perform its obligations under Section 13 hereof on the date so selected by Lessor in its notice of termination)7.1 hereof.
Appears in 1 contract
Taxes Excluded. The indemnity provided for in Section 14(a) above shall not extend to any Taxes not due in whole or part to: (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(a) above 7.2 shall not extend to any of the following:
(ia) in the case of the Lessor and its respective successorsas to any Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by, the income, capital, franchises, excess profits or conduct of business (other than taxes which are in the nature of sales, use, value added, excise, license or property taxes) of such Indemnified Party Taxes imposed by any taxing authority of or in the United States of America or any state or local or foreign government or other taxing authority (collectively, "Income Taxes") other than "Covered Income Taxes" (as such term is defined below);
(ii) in the case of each Financier and the Security Trustee and their respective successors, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by income, receipts, capital, franchises or conduct of business with respect to the gross or net income or receipts of such Indemnified PartyTax Indemnitee or any Affiliate thereof (including any minimum or alternative minimum Taxes and any Taxes on or measured by items of tax preference but excluding any sales, other than such use, license, property, value added (subject to clause (c) below) or rental Taxes);
(b) as to any Tax Indemnitee, Taxes imposed by any taxing authority of any jurisdiction or in the United States on, based on, measured by or with respect to capital or net worth or similar Taxes to the extent that such Taxes do not exceed the amount Taxes that would have been imposed had the Aircraft never been operated to or used in such jurisdiction;
(iii) Taxes relating to the Aircraft for any period after the expiration or early termination of the Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise of any remedies pursuant to Section 16 hereof following the occurrence of an Event of Default or pursuant to Exhibit D shall Tax Indemnitee not be excluded from the indemnity provided for in Section 14(a) hereof;
(iv) Taxes imposed against the Owner Trustee or Security Trustee with respect to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust Agreement;
(v) as to any Indemnified Party, Taxes in respect of the Aircraft or the Operative Agreements which arise out of or are caused by the willful misconduct or gross negligence of such Indemnified Party, or the breach by such Indemnified Party of any express covenant, agreement or representation in entered into the Operative Agreements;
(vic) as to any Participant, United States Federal value added taxes in the nature of or in lieu of any income tax;
(d) as to any Tax Indemnitee, Taxes imposed with respect to the Facility after the earliest of (1) the return of possession of the Facility and the ClO2 Facility to the Owner Participant or the placement of such Facility and the ClO2 Facility in storage at the request of the Owner Participant, in either case pursuant to Section 16 of the Facility Lease covering the Facility and the ClO2 Lease, (2) the termination of the Term under the ClO2 Lease pursuant to Section 19(f) of the Facility Lease with respect to the Facility and the Term under the ClO2 Lease pursuant to Section 14(c) of the ClO2 Participation Agreement, or (3) the discharge in full of the Lessee's obligation to pay the Termination Value or the Casualty Value and all other amounts due, if any, under Section 13 of the Facility Lease and Section 13 of the ClO2 Lease; provided, that the exclusion set forth in this clause (d) shall not apply to Taxes to the extent such Taxes relate to events occurring or matters arising prior to or simultaneously with such time (including, without limitation, Taxes imposed after such time by reason of ownership of the Facility prior to such time);
(e) as to any Tax Indemnitee, Taxes to the extent such Taxes arise directly out of or are directly caused by any breach by such Tax Indemnitee of any of its representations, warranties or covenants in any of the Operative Agreements, or the gross negligence or willful misconduct of such Tax Indemnitee;
(f) as to any Tax Indemnitee, any Taxes to the extent such Taxes result from the failure of such Tax Indemnitee to file tax returns, reports or statements properly and on a timely basis (unless such failure is related to the failure of the Lessee to perform properly and on a timely basis its obligations under Section 7.8);
(g) as to any Tax Indemnitee, Taxes which become payable as a result of a sale, assignment, transfer or other disposition (whether voluntary or involuntary) by reason of any transfer by an Indemnified Party such Tax Indemnitee of all or any portion of its interest in the Aircraft, the MortgageLeased Property or any part thereof, the Trust EstateEstate or any of the Operative Agreements or rights created thereunder, any interest in any Operative Agreement or shares including, without limitation, a revocation of stock in an Indemnified Party (the Trust Agreement, other than transfers a disposition which occur occurs as a the result of the exercise of remedies for a Lease Event of Default, any rights under Section 16 disposition which occurs in connection with the occurrence and continuance of a Lease Event of Default or Exhibit D hereof, or any remedies under a purchase of the Mortgage)Facility pursuant to the Facility Lease;
(viih) Income as to any Tax Indemnitee, Taxes, to the extent such Taxes imposed by any jurisdiction would not have been imposed on such Tax Indemnitee but for activities of such Tax Indemnitee in such jurisdiction unrelated to the transactions contemplated by the Operative Agreements and the ClO2 Operative Agreements;
(i) as to the Indenture Trustee or the holder of a Note (or any successor indebtedness), any Tax in the nature of an intangible or similar Tax imposed upon or with respect to the value of its interest in the Notes (or any successor indebtedness) by any taxing authority unless such Tax would not have been imposed on the Trust value of any other Notes held by the Indenture Trustee or the Owner Participant other than Covered Income Taxes; andholder of a Note;
(viiij) as to the Owner Trustee or the Indenture Trustee, Taxes imposed which are based on or measured by way of deduction its fees or withholding by the U.S. Federal Government on payments to a Person who is not a United States Person or, except for Covered Income Taxes, by any foreign government on payments compensation;
(k) as to any Person Tax Indemnitee, penalties, interest or additions to tax (provided, that if in any case any such Taxes are including those related to estimated tax payments) to the extent imposed as a result of a change in a tax treaty after Taxes which are excluded from indemnification hereunder; and
(l) as to any Tax Indemnitee, any foreign Taxes imposed with respect to the date hereof that is not already published as a proposed change on Facility or any portion or part thereof, or the date hereof transactions contemplated by the Operative Agreements or on the date an Indemnified Party becomes an Indemnified PartyClO2 Operative Agreements, Lessee and unless such Taxes result from the applicable Indemnified Parties agree to negotiate in good faith a restructuring use, registration, or location of the transaction contemplated hereby to eliminate such Taxes without changing Facility or the economic terms ClO2 Facility or any portion or part thereof, or the incorporation, organization or location of this transactiona user, but if such Taxes are lessee or assignee (whether or not so eliminated within 90 days from the date in possession) of the imposition of Facility or the ClO2 Facility or any portion or part thereof (other than the Lessor, the Owner Participant or any Affiliate or assignee thereof), in, or any payment in respect thereof being made by the Lessee or any Affiliate thereof from, the foreign jurisdiction imposing such Taxes, Lessor may (unless Lessee agrees to extend the indemnity provided for in Section 14(a) above to cover such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition required under Section 13 hereof on the date so selected by Lessor in its notice of termination).
Appears in 1 contract
Taxes Excluded. The indemnity provided for in provisions of Section 14(a) above 13.1 shall not extend apply to, and the Borrower shall have no indemnity liability pursuant to Section 13.1 with respect to:
(a) Taxes (other than (x) any Taxes not due Tax that is or is in whole the nature of a sales, use, license, value added, stamp, transfer, excise, goods and services, property or part to: rental Tax or (y) any withholding Tax (1) the acts that is imposed by any government or omissions of Lessee; taxing authority, or (2) the delivery with respect to payments or acceptance of the Aircraft by deemed payments on or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(a) above shall not extend with respect to any of Unpaid Sum or on payments to any Tax Indemnitee that is imposed by the following:
(iUnited States) in the case of the Lessor and its respective successors, transferees imposed by any government or assigns permitted under the terms of the Operative Agreements, taxes taxing authority on, based on, measured by or with respect to gross or net income, gross or net receipts or capital gains (including, without limitation, any minimum Taxes, alternative minimum Taxes, personal holding company Taxes, accumulated earnings Taxes and any Taxes on or measured byby any items of tax preference) or that are franchise Taxes, the income, capital, franchises, excess profits Taxes on doing business or conduct of business (other than taxes which are in the nature of sales, use, value added, excise, license or property taxes) of such Indemnified Party imposed by the United States of America or any state or local or foreign government or other taxing authority (collectively, "Income Taxes") other than "Covered Income Taxes" (as such term is defined below);
(ii) in the case of each Financier and the Security Trustee and their respective successors, transferees or assigns permitted under the terms of the Operative Agreements, taxes Taxes on, based on, or measured by incomeor with respect to capital or net worth; provided, receipts, capital, franchises or conduct of business of such Indemnified Party, other than that there shall not be excluded by this Section 13.2(a) any such Taxes imposed by any government or taxing authority of any jurisdiction located outside the United States to the extent such Taxes exceed the amount that would have been imposed had the Aircraft never been operated to or used in such jurisdiction;
(iii) Taxes relating to the Aircraft for any period after the expiration or early termination of the Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise of any remedies pursuant to Section 16 hereof following the occurrence of an Event of Default or pursuant to Exhibit D shall not be excluded from the indemnity provided for in Section 14(a) hereof;
(iv) Taxes imposed against the Owner Trustee or Security Trustee with respect to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust Agreement;
(v) as to any Indemnified Party, Taxes in respect of the Aircraft or the Operative Agreements which arise out of or are caused by the willful misconduct or gross negligence of such Indemnified Party, or the breach by such Indemnified Party of any express covenant, agreement or representation in the Operative Agreements;
(vi) Taxes which become payable by reason of any transfer by an Indemnified Party of all or any portion of its interest in the Aircraft, the Mortgage, the Trust Estate, any interest in any Operative Agreement or shares of stock in an Indemnified Party (other than transfers which occur as a result of the exercise of any rights under Section 16 or Exhibit D hereof, or any remedies under the Mortgage);
(vii) Income Taxes imposed on the Trust or the Owner Participant other than Covered Income Taxes; and
(viii) Taxes imposed by way of deduction or withholding by the U.S. Federal Government on payments to a Person who is not a United States Person or, except for Covered Income Taxes, by any foreign government on payments to any Person (provided, that if in any case any such Taxes are imposed as a result of (A) the location, use, operation or presence of the Aircraft, the Airframe, any Engine, any Part, or the Collateral, or any interest therein in such jurisdiction, (B) the presence, activity or other connection of the Borrower in or with such jurisdiction, (C) the Borrower making or deemed to be making a change payment from or through such jurisdiction, (D) the execution or delivery of any Operative Document (or any amendment thereof or supplement thereto) or the creation, recording or perfection of any security interest in such jurisdiction or (E) any combination of factors (A), (B), (C) and (D) of this Section 13.2(a); provided, further, there shall not be excluded under this paragraph (x) any amount necessary to make any payment hereunder on an After-Tax Basis or (y) any Taxes imposed on or payable by a Tax Indemnitee as a result of the failure of any person to withhold income tax treaty from any payment pursuant to any Operative Document unless such Tax Indemnitee expressly agreed in any Operative Document to withhold such income tax from such payment;
(b) Taxes imposed on any Tax Indemnitee to the extent resulting from the willful misconduct, gross negligence or fraud of such Tax Indemnitee or any Affiliate thereof or the breach or inaccuracy of any representation, warranty or covenant of such Tax Indemnitee or any Affiliate thereof in any Operative Document;
(c) Taxes imposed on any Tax Indemnitee in excess of the Taxes that would have been imposed and indemnified against had there not been a transfer, determined at the time of transfer, to such Tax Indemnitee (x) of any interest in the Aircraft, the Airframe, any Engine, any Part, or the Collateral or any interest in or rights arising under any Operative Document or (y) of any interest (direct or indirect) in another Tax Indemnitee; provided that the exclusion described in this Section 13.2(c) shall not apply to (A) any increase in any indemnity payable under this Article XIII to any Tax Indemnitee that is a corporation incorporated under the laws of the United States or a state thereof or a partnership each partner of which is such a corporation to the extent attributable to the fact that the income tax rates used by the transferee for the purpose of calculating payments on an After-Tax Basis are greater than those used by the original Tax Indemnitee; (B) any increase in the amount of any Tax imposed on or payable by any such assignee or transferee after the date hereof of such assignment or transfer as a result of a Change in Law (including, for the avoidance of doubt, any treaty) relating to Taxes after the date of such assignment or transfer or (C) any increase in the amount of any Tax pursuant to a transfer that is not already published requested by the Borrower or that occurs after the occurrence of an Event of Default that is continuing;
(d) Taxes imposed on any Tax Indemnitee on or with respect to any voluntary transfer (it being understood and agreed that any transfer that occurs (1) pursuant to a request by the Borrower or in connection with an Event of Default that has occurred and is continuing, (2) as a proposed change result of the substitution, replacement, modification, pooling or improvement of the Aircraft, the Airframe, any Engine or any Part, (3) as a result of a requirement of the law of any jurisdiction due to the operation or presence of the Aircraft, the Airframe, any Engine, any Part or the Collateral, or any activity or presence of the Borrower, in such jurisdiction, (4) as a result of any bankruptcy or insolvency of, or a foreclosure against, such Tax Indemnitee, or (5) pursuant to the Operative Documents shall not be a voluntary transfer by such Tax Indemnitee) (x) of any interest in the Aircraft, the Airframe, any Engine, any Part, the Collateral or any interest in or rights arising under any Operative Document or (y) of any interest (direct or indirect) in a Tax Indemnitee;
(e) Taxes imposed with respect to any period before the date of this Agreement (unless attributable to any act or omission on the date hereof part of the Borrower or any of its Affiliates) or after the Maturity Date and discharge in full of the Borrower’s obligations to pay all Unpaid Sums due at such time under the Operative Documents; provided, that there shall not be excluded by this Section 13.2(e) any Taxes related to events occurring or matters arising prior to or simultaneously with the Maturity Date or imposed with respect to any payment by the Borrower after such date;
(f) Taxes imposed on any Tax Indemnitee to the date an Indemnified Party becomes an Indemnified extent such Taxes would not have been imposed but for the failure of such Tax Indemnitee or any Affiliate thereof to comply with (1) certification, information, documentation, reporting or other similar requirements concerning such Finance Party’s nationality, Lessee residence, identity or connection with the jurisdiction imposing such Taxes, if such compliance is required by statute, regulation or administrative procedure of the jurisdiction imposing such Taxes as a precondition to relief or exemption from such Taxes and such Tax Indemnitee or Affiliate was eligible to comply with such requirement or (2) any other certification, information, documentation, reporting or other similar requirements under the Tax laws, regulations or administrative procedures of the jurisdiction imposing such Taxes that would establish entitlement to otherwise applicable Indemnified Parties agree relief or exemption from such Taxes available to negotiate such Tax Indemnitee or Affiliate; provided, however, that the exclusions set forth in this Section 13.2(f) shall only apply if the Borrower, any governmental authority or any other person shall have given such Tax Indemnitee or Affiliate timely written notice of such certification, information, document, reporting or other similar requirement at such time and in such manner as shall give such Tax Indemnitee a reasonable opportunity to comply with such requirement (or, if requested by the Tax Indemnitee, the Borrower shall have timely prepared and filed any such forms or documents on behalf of the Tax Indemnitee at the Borrower’s sole expense as shall be necessary to comply with such requirement) and such Tax Indemnitee shall not have determined in its sole opinion determined in good faith that compliance with such requirement would create a restructuring risk of unindemnified adverse consequences to such Tax Indemnitee or any of its Affiliates;
(g) Taxes to the extent such Taxes would not have been imposed but for an amendment to any Operative Document to which the Borrower is not a party without the prior written consent of the transaction contemplated hereby to eliminate Borrower, unless such amendment occurs in connection with and during the continuance of an Event of Default or is required by applicable law or is required by any Operative Document;
(h) so long as all other amounts due under the Operative Documents are being paid when due without reduction, Taxes without changing the economic terms of this transaction, but if for so long as such Taxes are being contested in accordance with the provisions of Section 13.3(c) hereof;
(i) interest, penalties or additions to Tax imposed on a Tax Indemnitee to the extent such interest, penalties or additions to Tax would not so eliminated within 90 days have been imposed but for the failure of such Tax Indemnitee or any Affiliate thereof to file any return properly and timely, unless such failure results from the date a failure of the imposition of Borrower to comply with this Article XIII;
(j) Taxes imposed on a Tax Indemnitee resulting from, or which would not have occurred but for, a Finance Party Encumbrance for which such Taxes, Lessor may Tax Indemnitee is responsible;
(unless Lessee agrees to extend the indemnity provided for in Section 14(ak) above to cover such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition required under Section 13 hereof Taxes imposed on the date so selected Security Trustee that are on, based on or measured by Lessor any trustee fees for services rendered by the Security Trustee;
(l) Taxes imposed on a Tax Indemnitee to the extent they would have been incurred notwithstanding their entry into the Operative Documents; and
(m) any Tax imposed on or payable by any Tax Indemnitee to the extent such Tax was actually paid or reimbursed in its notice connection with making a payment on an After-Tax Basis to such Tax Indemnitee by the Borrower pursuant to any other provision of termination)the Operative Documents.
Appears in 1 contract
Samples: Facility Agreement (Atlas Air Worldwide Holdings Inc)
Taxes Excluded. The indemnity provided for in Section 14(a) above shall not extend to any Taxes not due in whole or part to: (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(a) above 7.2 shall not extend to any of the following:
(ia) in the case of the Lessor and its respective successorsas to any Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by, the income, capital, franchises, excess profits or conduct of business (other than taxes which are in the nature of sales, use, value added, excise, license or property taxes) of such Indemnified Party Taxes imposed by any taxing authority of or in the United States of America or any state or local or foreign government or other taxing authority (collectively, "Income Taxes") other than "Covered Income Taxes" (as such term is defined below);
(ii) in the case of each Financier and the Security Trustee and their respective successors, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by income, receipts, capital, franchises or conduct of business with respect to the gross or net income or receipts of such Indemnified PartyTax Indemnitee or any Affiliate thereof (including any minimum or alternative minimum Taxes and any Taxes on or measured by items of tax preference but excluding any sales, other than such use, license, property, value added (subject to clause (c) below) or rental Taxes) ("Income Taxes");
(b) as to any Tax Indemnitee, Taxes imposed by any taxing authority of any jurisdiction or in the United States on, based on, measured by or with respect to capital or net worth or similar Taxes to the extent that such Taxes do not exceed the amount Taxes that would have been imposed had the Aircraft never been operated to or used in such jurisdiction;
(iii) Taxes relating to the Aircraft for any period after the expiration or early termination of the Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise of any remedies pursuant to Section 16 hereof following the occurrence of an Event of Default or pursuant to Exhibit D shall Tax Indemnitee not be excluded from the indemnity provided for in Section 14(a) hereof;
(iv) Taxes imposed against the Owner Trustee or Security Trustee with respect to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust Agreement;
(v) as to any Indemnified Party, Taxes in respect of the Aircraft or the Operative Agreements which arise out of or are caused by the willful misconduct or gross negligence of such Indemnified Party, or the breach by such Indemnified Party of any express covenant, agreement or representation in entered into the Operative Agreements;
(vic) as to any Participant, United States Federal valued added taxes in the nature of or in lieu of any income tax;
(d) as to any Tax Indemnitee, Taxes imposed with respect to the Facility after the earliest of (1) the return of possession of the Facility to the Owner Participant or the placement of such Facility in storage at the request of the Owner Participant, in either case pursuant to Section 16 of the Facility Lease covering the Facility, (2) the termination of the Term pursuant to Section 19(f) or 19(g) of the Facility Lease with respect to the Facility, or (3) the discharge in full of the Lessee's obligation to pay the Termination Value or the Casualty Value and all other amounts due, if any, under Section 13 of the Facility Lease; provided that the exclusion set forth in this clause (d) shall not apply to Taxes to the extent such Taxes relate to events occurring or matters arising prior to or simultaneously with such time;
(e) as to any Tax Indemnitee, Taxes which arise directly out of or are directly caused by any breach by such Tax Indemnitee of any of its representations, warranties or covenants in any of the Operative Agreements, or the gross negligence or willful misconduct of such Tax Indemnitee;
(f) as to any Tax Indemnitee, any Taxes to the extent such Taxes result from the failure of such Tax Indemnitee to file tax returns, reports or statements properly and on a timely basis (unless such failure is related to the failure of the Lessee to perform properly and on a timely basis its obligations under Section 7.8);
(g) as to any Tax Indemnitee, Taxes which become payable as a result of a sale, assignment, transfer or other disposition (whether voluntary or involuntary) by reason of any transfer by an Indemnified Party such Tax Indemnitee of all or any portion of its interest in the Aircraft, the MortgageLeased Property or any part thereof, the Trust EstateEstate or any of the Operative Agreements or rights created thereunder, any interest in any Operative Agreement or shares including, without limitation, a revocation of stock in an Indemnified Party (the Trust Agreement, other than transfers a disposition which occur occurs as a the result of the exercise of remedies for a Lease Event of Default, any rights under Section 16 disposition which occurs in connection with the occurrence and continuance of a Lease Event of Default or Exhibit D hereof, or any remedies under a purchase of the Mortgage)Facility pursuant to the Facility Lease;
(viih) Income Taxes imposed on the Trust or the Owner Participant other than Covered Income Taxes; and
(viii) as to any Tax Indemnitee, Taxes imposed by way any jurisdiction that would not have been imposed on such Tax Indemnitee but for activities of deduction or withholding such Tax Indemnitee in such jurisdiction unrelated to the transactions contemplated by the U.S. Federal Government on payments Operative Agreements;
(i) as to the Indenture Trustee or the holder of a Person who is not a United States Person orNote (or any successor indebtedness), except for Covered Income Taxes, any Tax in the nature of an intangible or similar Tax imposed upon or with respect to the value of its interest in the Notes (or any successor indebtedness) by any foreign government taxing authority;
(j) as to the Owner Trustee or the Indenture Trustee, Taxes which are based on payments or measured by its fees or compensation;
(k) as to any Person (providedTax Indemnitee, that if in any case any such Taxes are penalties, interest or additions to tax to the extent imposed as a result of a change in a tax treaty after Taxes which are excluded from indemnification hereunder; and
(l) as to any Tax Indemnitee, any foreign Taxes imposed with respect to the date hereof that is not already published as a proposed change on Facility or any portion or part thereof, or the date hereof transactions contemplated by the Operative Agreements, unless such Taxes result for the use, registration, or on the date an Indemnified Party becomes an Indemnified Party, Lessee and the applicable Indemnified Parties agree to negotiate in good faith a restructuring location of the transaction contemplated hereby to eliminate such Taxes without changing Facility or any portion or part thereof, or the economic terms incorporation, organization or location of this transactiona user, but if such Taxes are lessee or assignee (whether or not so eliminated within 90 days from the date in possession) of the imposition of Facility or any portion or part thereof (other than the Lessor, the Owner Participant or any Affiliate thereof), in, or any payment in respect thereof being made by the Lessee or any Affiliate thereof from, the foreign jurisdiction imposing such Taxes, Lessor may (unless Lessee agrees to extend the indemnity provided for in Section 14(a) above to cover such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition required under Section 13 hereof on the date so selected by Lessor in its notice of termination).
Appears in 1 contract
Taxes Excluded. The indemnity provided for in Section 14(a) above shall not extend to any Taxes not due in whole or part to: paragraph (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(ab) above shall not extend to any of the following:
(i) in the case of the Lessor and its respective successors, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by, the income, capital, franchises, excess profits or conduct of business (other than taxes Taxes which are based upon, measured by or in respect to gross or net income or gross or net receipts (including all Taxes which are in lieu of a gross or net income tax or gross or net receipts tax); Taxes on items of preference or any minimum tax; value added taxes; business and occupation taxes; franchise taxes; commercial activity taxes, business activity taxes and other similar taxes imposed on the privilege of doing business; or Taxes based upon Owner Participant’s or Lessor’s capital stock or net worth; provided that there shall not be excluded under this subparagraph (i) any (x) sales (including gross receipts Taxes in the nature of salesa sales Tax), use, property, value added, exciselicense, license rental, ad valorem or property taxesTaxes in the nature thereof and (y) of such Indemnified Party any Taxes imposed by the United States of America or any state or local or foreign government or other taxing authority of or in a foreign country if, and to the extent, such Taxes are imposed as a result of (collectivelyA) the operation, "Income Taxes"presence or registration in such jurisdiction of any Unit or part thereof, (B) other than "Covered Income Taxes" the presence in such jurisdiction of a permanent establishment or fixed place of business of any Lessee Person, (C) the residence, nationality or place of management and control of any Lessee Person, (D) the payment by any Lessee Person of any amount due under the Operative Agreements which is treated as paid from such term is defined belowjurisdiction or (E) any combination of factors (A)-(D) (for the avoidance of doubt, Taxes imposed on the Loan Participant by withholding or deduction that are otherwise excluded under this clause (i) shall be indemnified solely to the extent provided in Section 7.1(j);).
(ii) Taxes imposed with respect to any period after the earliest of (x) the return of possession of the Equipment to Owner Participant or the placement of the Equipment in storage at the request of Owner Participant, in either case pursuant to Section 6 of the Lease and only so long as no Lease Event of Default shall have occurred and be continuing, (y) the termination of the Lease Term pursuant to Section 22.1 of the Lease, or (z) the discharge in full of Lessee’s obligation to pay the Termination Value or the Stipulated Loss Value and all other amounts due, if any, under Section 10 or 11.2 of the Lease, as the case of each Financier and may be, with respect to the Security Trustee and their respective successors, transferees or assigns permitted under Equipment; provided that the terms of the Operative Agreements, taxes on, based on, or measured by income, receipts, capital, franchises or conduct of business of such Indemnified Party, other than such exclusion set forth in this clause (ii) shall not apply to Taxes imposed by any taxing authority of any jurisdiction to the extent such Taxes exceed the amount that would have been imposed had the Aircraft never been operated relate to events occurring or matters arising prior to or used in simultaneously with such jurisdictiontime (including Taxes on or with respect to any payment to a Tax Indemnitee due after the termination or expiration of the Lease if such payment relates to events occurring or matters arising prior to or simultaneously with such time);
(iii) Taxes relating to the Aircraft for any period after the expiration or early termination of the Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise of any remedies pursuant to Section 16 hereof following the occurrence of an Event of Default or pursuant to Exhibit D shall not be excluded from the indemnity provided for in Section 14(a) hereof;
(iv) Taxes imposed against the Owner Trustee or Security Trustee with respect to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust Agreement;
(v) as to any Indemnified Party, Taxes in respect of the Aircraft or the Operative Agreements a Tax Indemnitee which arise out of or are caused by any breach by such Tax Indemnitee of any of its representations, warranties or covenants in any of the willful misconduct or gross negligence of such Indemnified PartyOperative Agreements, or the breach by gross negligence or willful misconduct of such Indemnified Party of any express covenant, agreement or representation in the Operative AgreementsTax Indemnitee;
(viiv) Taxes which become payable as a result of a sale, assignment, transfer or other disposition (whether voluntary or involuntary) by reason of any transfer by an Indemnified Party a Tax Indemnitee of all or any portion of its interest in the Aircraft, the MortgageEquipment or any part thereof, the Trust Estate, Estate or any interest in any of the Operative Agreement Agreements or shares of stock in an Indemnified Party (rights created thereunder other than transfers which occur as a result disposition attributable to (v) a Lease Event of Default (but only while a Lease Event of Default has occurred and is continuing), (w) an Event of Loss, (x) the exercise by Lessee of the termination right pursuant to Section 10 of the Lease, (y) the exercise by Lessee of the purchase rights pursuant to Section 23 of the Lease and (z) the replacement, substitution, subleasing or interchange of any rights under Section 16 Unit by any Lessee Person;
(v) Taxes imposed with respect to any fees received by Indenture Trustee or Exhibit D hereof, or any remedies under Owner Trustee for services rendered in its capacity as trustee;
(vi) Taxes which have been included in the Mortgage)Equipment Cost;
(vii) Income Taxes imposed on the Trust or the for which Lessee is obligated to indemnify Owner Participant other than Covered Income Taxes; andunder the Tax Indemnity Agreement;
(viii) Taxes which result from Owner Trustee’s engaging on behalf of the Trust Estate acting upon the instruction of Owner Participant in transactions other than those permitted or contemplated by the Operative Agreements unless attributable to the exercise of default remedies pursuant to Article V of the Trust Agreement;
(ix) Taxes imposed pursuant to Sections 6707, 6707A or 6708 of the Code;
(x) Taxes imposed against a particular Indemnified Person resulting from any prohibited transaction, within the meaning of Section 4975(c)(1) of the Code, occurring with respect to the purchase or holding of Equipment Notes or circumstances when such Indemnified Person or any Person in such Indemnified Person’s Related Indemnitee Group caused such purchase or holding and knew it would constitute such a prohibited transaction;
(xi) Taxes imposed on a Tax Indemnitee to the extent resulting from a failure of such Tax Indemnitee to provide any certificate, documentation, or other evidence requested by Lessee in a timely manner and required under applicable law as a condition to the allowance of a reduction in such Tax, but only if such Tax Indemnitee was legally eligible to provide such certificate, document or other evidence (based on a good faith judgment of such Tax Indemnitee that it is legally entitled and eligible to do so) without unindemnified adverse consequences (other than certain de minimis costs);
(xii) Taxes imposed on a Tax Indemnitee to the extent consisting of interest, penalties, fines or additions to Tax in connection with the filing of, or failure to file, any tax return, the payment of, or failure to pay any Tax, unless resulting (x) from the failure by Lessee to perform its obligations under Section 7.1(i) hereof or (y) because information provided by Lessee to Lessor pursuant to Section 7.1(i) hereof is incorrect or incomplete;
(xiii) Taxes imposed against a transferee of a Tax Indemnitee to the extent of the excess of such Taxes over the amount of such Taxes which would have been imposed had there not been a transfer by such original Tax Indemnitee of the interest of such Tax Indemnitee in the Equipment, the Equipment Notes or the Trust Estate; provided, however, that in the case of a transfer by the Owner Participant, this clause (xiii) shall not apply to a transfer to a U.S. Person (as defined below) (x) which is an Affiliate of the Owner Participant, or (y) in connection with the sale of all or substantially all of the Owner Participant’s lease portfolio; for purposes of this clause (xiii), a U.S. Person shall mean a corporation, partnership or other entity created or organized in, or under the laws of, the United States; provided, further, however, that this clause (xiii) shall not apply to the Original Loan Participant or any transferee of the Original Loan Participant as contemplated in Section 6.13 (it being understood that any transferee limitations on such transfers are set forth in Sections 6.13 and 7.1(j) hereof); and
(xiv) Taxes imposed by way of deduction or withholding by the U.S. Federal Government on payments to a Person who is not a United States Person or, except for Covered Income Taxes, by any foreign government on payments to any Person (provided, that if in any case any such Taxes are imposed as a result of a change in a tax treaty after the date hereof that is not already published as a proposed change on the date hereof or on the date an Indemnified Party becomes an Indemnified Party, Lessee and the applicable Indemnified Parties agree to negotiate in good faith a restructuring reason of the transaction contemplated hereby to eliminate such Taxes without changing the economic terms of this transaction, but if such Taxes are not so eliminated within 90 days from the date failure of the imposition Owner Trust to be subject to the provisions of such Taxes, Lessor may (unless Lessee agrees to extend the indemnity provided for in Section 14(a) above to cover such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition required under Section 13 hereof on the date so selected by Lessor in its notice of termination)Code regarding grantor trusts.
Appears in 1 contract
Taxes Excluded. The indemnity provided for in Section 14(a) above shall not extend to any Taxes not due in whole or part to: paragraph (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(ab) above shall not extend to any of the following:
(i) Taxes which are based upon, measured by or in the case respect to gross or net income or gross or net receipts (including, but not limited to, (X) commercial activity taxes, business activity taxes and other similar taxes that are based upon, measured by or in respect of the Lessor such income or receipts and its respective successors, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by, the income, capital, franchises, excess profits or conduct of business (other than taxes Y) all Taxes which are in substitution for, in the nature of, or in lieu of a gross or net income tax or gross or net receipts tax); Taxes on items of preference or any minimum tax; business and occupation taxes; franchise taxes; or Taxes based upon the Owner Participant’s or the Lessor’s capital stock or net worth; provided that there shall not be excluded under this subparagraph (i) any sales, use, value addedproperty, excisestamp, license license, rental, ad valorem or property taxes) of such Indemnified Party Taxes in the nature thereof or any Taxes imposed by any government or taxing authority of or in a foreign country if, and to the United States extent, such Taxes would have been imposed had the sole connection between the Tax Indemnitee and such foreign country been the presence in such country of America any Unit or any state part thereof or local the presence or foreign government activities of the Lessee or other taxing authority any sublessee or user of the Equipment in, or the making of payments from, such country (collectivelyfor the avoidance of doubt, "Income Taxes"Taxes imposed on the Loan Participant by withholding or deduction that are otherwise excluded solely under this clause (i) other than "Covered Income Taxes" (as such term is defined belowshall be indemnified to the extent provided in Section 7.1(j) hereof);
(ii) Taxes imposed with respect to any period after the earliest of (x) the return of possession of the Equipment to Owner Participant or the placement of the Equipment in storage at the request of Owner Participant, in either case pursuant to Section 6 of the Lease and only so long as no Lease Event of Default shall have occurred and be continuing, (y) the termination of the Lease Term pursuant to Section 22.1 of the Lease, or (z) the discharge in full of Lessee’s obligation to pay the Termination Value or the Stipulated Loss Value and all other amounts due, if any, under Section 10 or 11.2 of the Lease, as the case of each Financier and may be, with respect to the Security Trustee and their respective successors, transferees or assigns permitted under Equipment; provided that the terms of the Operative Agreements, taxes on, based on, or measured by income, receipts, capital, franchises or conduct of business of such Indemnified Party, other than such exclusion set forth in this clause (ii) shall not apply to Taxes imposed by any taxing authority of any jurisdiction to the extent such Taxes exceed the amount that would have been imposed had the Aircraft never been operated relate to events occurring or matters arising prior to or used in simultaneously with such jurisdictiontime (including Taxes on or with respect to any payment to a Tax Indemnitee due after the termination or expiration of the Lease if such payment relates to events occurring or matters arising prior to or simultaneously with such time);
(iii) Taxes relating to the Aircraft for any period after the expiration or early termination of the Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise of any remedies pursuant to Section 16 hereof following the occurrence of an Event of Default or pursuant to Exhibit D shall not be excluded from the indemnity provided for in Section 14(a) hereof;
(iv) Taxes imposed against the Owner Trustee or Security Trustee with respect to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust Agreement;
(v) as to any Indemnified Party, Taxes in respect of the Aircraft or the Operative Agreements a Tax Indemnitee which arise out of or are caused by any breach by such Tax Indemnitee of any of its representations, warranties or covenants in any of the willful misconduct or gross negligence of such Indemnified PartyOperative Agreements, or the breach by gross negligence or willful misconduct of such Indemnified Party of any express covenant, agreement or representation in the Operative AgreementsTax Indemnitee;
(viiv) Taxes which become payable as a result of a sale, assignment, transfer or other disposition (whether voluntary or involuntary) by reason of any transfer by an Indemnified Party a Tax Indemnitee of all or any portion of its interest in the Aircraft, the MortgageEquipment or any part thereof, the Trust Estate, Estate or any interest in any of the Operative Agreement Agreements or shares of stock in an Indemnified Party (rights created thereunder other than transfers which occur as a result disposition attributable to (v) a Lease Event of Default (but only while a Lease Event of Default has occurred and is continuing), (w) an Event of Loss, (x) the exercise by Lessee of the termination right pursuant to Section 10 of the Lease, (y) the exercise by Lessee of the purchase rights pursuant to Section 23 of the Lease and (z) the replacement, substitution, subleasing or interchange of any rights under Section 16 Unit by any Lessee Person;
(v) Taxes imposed with respect to any fees received by Indenture Trustee or Exhibit D hereof, or any remedies under Owner Trustee for services rendered in its capacity as trustee;
(vi) Taxes which have been included in the Mortgage)Equipment Cost;
(vii) Income Taxes imposed on the Trust or the for which Lessee is obligated to indemnify Owner Participant other than Covered Income Taxes; andunder the Tax Indemnity Agreement;
(viii) Taxes imposed by way which result from Owner Trustee’s engaging on behalf of deduction the Trust Estate acting upon the instruction of Owner Participant in transactions other than those permitted or withholding contemplated by the U.S. Federal Government on payments Operative Agreements unless attributable to a Person who is not a United States Person orthe exercise of default remedies pursuant to Article V of the Trust Agreement;
(ix) Taxes imposed pursuant to Sections 6707, except for Covered Income Taxes, by any foreign government on payments 6707A or 6708 of the Code;
(x) As to any Person (provided, that if in Tax Indemnitee any case any such Taxes are imposed as a result of any modification, amendment, supplement, consent, or waiver to any Operative Agreement entered into by such Tax Indemnitee or any related Tax Indemnitee thereof other than any modification, amendment, supplement, consent, or waiver (A) consented to in writing, requested in writing or initiated by the Lessee or requested in connection with any modification, amendment, supplement, consent or waiver in writing by or initiated by the Lessee, (B) while a change Lease Event of Default shall have occurred and is continuing or (C) that is required by the Operative Agreements or by law;
(xi) Taxes imposed against a particular Indemnified Person resulting from any prohibited transaction, within the meaning of Section 4975(c)(1) of the Code, occurring with respect to the purchase or holding of Equipment Notes or circumstances when such Indemnified Person or any Person in such Indemnified Person’s Related Indemnitee Group caused such purchase or holding and knew it would constitute such a prohibited transaction;
(xii) Taxes imposed on a Tax Indemnitee to the extent resulting from a failure of such Tax Indemnitee to provide any certificate, documentation, or other evidence requested by Lessee in a tax treaty after the date hereof that is not already published timely manner and required under applicable law as a proposed change condition to the allowance of a reduction in such Tax, but only if such Tax Indemnitee was legally eligible to provide such certificate, document or other evidence (based on a good faith judgment of such Tax Indemnitee that it is legally entitled and eligible to do so) without unindemnified adverse consequences (other than certain de minimis costs) unless resulting from the date hereof failure by the Lessee to perform its obligations under Section 7.1(i);
(xiii) Taxes imposed on a Tax Indemnitee to the extent consisting of interest, penalties, fines or additions to Tax in connection with the filing of, or failure to file, any tax return, the payment of, or failure to pay any Tax, or the conduct of any proceeding in respect thereof, unless resulting from the failure by Lessee to perform its obligations under Section 7.1(i) hereof;
(xiv) Taxes imposed against a transferee of a Tax Indemnitee to the extent of the excess of such Taxes over the amount of such Taxes which would have been imposed had there not been a transfer by such original Tax Indemnitee of the interest of such Tax Indemnitee in the Equipment, the Equipment Notes or the Trust Estate; provided, however, this clause (xiv) shall not apply to Taxes imposed by withholding or deduction on a transferee of a Loan Participant if the date an Indemnified Party becomes an Indemnified Partytransferee is a resident of Canada, Lessee France, Germany, The Netherlands, Austria, Italy, Switzerland or the United Kingdom for purposes of the tax convention on income taxes between such country and the applicable Indemnified Parties agree to negotiate in good faith a restructuring United States;
(xv) Taxes imposed by reason of the transaction contemplated hereby to eliminate such Taxes without changing the economic terms of this transaction, but if such Taxes are not so eliminated within 90 days from the date failure of the imposition Owner Trust to be subject to the provisions of such Taxes, Lessor may the Code regarding grantor trusts; and
(unless Lessee agrees xvi) Taxes that would not have been imposed but for Owner Participant engaging in transactions governed or intended to extend be governed by Section 1031 of the indemnity provided for Code in Section 14(a) above to cover such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon connection with the Term of this Lease shall terminate and Lessee shall return transactions contemplated by the Aircraft to Lessor in the condition required under Section 13 hereof on the date so selected by Lessor in its notice of termination)Operative Agreements.
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Taxes Excluded. The indemnity provided for in Section 14(a8.2(b) above shall not extend to any Taxes not due in whole or part to: (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(a) above shall not extend to any of the following:
(i) in the case of the Lessor and its respective successors, transferees or assigns permitted under the terms of the Operative Agreements, taxes Taxes on, based on, or measured byby income (including gross income), the incomereceipts, capital, franchises, excess profits or conduct of business (other than taxes which are in of an Indemnitee, except to the nature of sales, use, value added, excise, license or property taxes) extent Taxes of such Indemnified Party type would not have been imposed by on such Indemnitee but for the United States location of America the Aircraft, activities or place of incorporation or principal place of business of Mortgagor or any state other user of the Aircraft or local any Affiliate of any of the foregoing, registration of the Aircraft, or foreign government payment of amounts due under any Security or other Operative Document from, the jurisdiction of the taxing authority (collectively, "Income imposing such Taxes") other than "Covered Income Taxes" (as such term is defined below);
(ii) in the case of each Financier and the Security Trustee and their respective successors, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by income, receipts, capital, franchises or conduct of business of such Indemnified Party, other than such Taxes imposed by any taxing authority against a transferee of any jurisdiction an Indemnitee to the extent of the excess of such Taxes exceed over the amount that of such Taxes which would have been imposed had there not been a transfer by an Indemnitee other than Mortgagee or its Affiliates of any interest of such Indemnitee in the Aircraft never been operated to Aircraft, any Security, or used in such jurisdictionany Operative Document;
(iii) Taxes relating to in the Aircraft for any period after the expiration or early termination of the Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise case of any remedies pursuant to Section 16 hereof following the occurrence of an Event of Default or pursuant to Exhibit D shall not be excluded from the indemnity provided for in Section 14(a) hereof;
(iv) Taxes imposed against the Owner Trustee or Security Trustee with respect to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust Agreement;
(v) as to any Indemnified PartyIndemnitee, Taxes in respect of the Aircraft or the Operative Agreements which arise out of or are caused by (a) the willful misconduct or gross negligence of such Indemnified Party, Indemnitee or the breach by a Related Party (as defined below) with respect to such Indemnified Party of Indemnitee or (b) such Indemnitee's making a representation under any express covenant, agreement or representation in the Operative AgreementsDocument which proves to be untrue;
(viiv) Taxes which become payable by reason in the case of any Indemnitee, Taxes upon (x) any voluntary transfer by an Indemnified such Indemnitee or a Related Party with respect to such Indemnitee of all or any portion of its interest in the Aircraft, the Mortgage, the Trust EstateAircraft or any part thereof, any interest in Operative Document or any Operative Agreement or shares of stock in an Indemnified Party Security (other than transfers which occur as a or result of from the exercise of any rights under Section 16 4) or Exhibit D hereof(y) any involuntary transfer of the Aircraft or any interest therein or any Security, any Operative Document, or shares of stock by an Indemnitee resulting from any remedies under bankruptcy, foreclosure or similar proceedings in which any Indemnitee is the Mortgage)debtor;
(v) United States withholding taxes imposed on payments to a foreign Person;
(vi) Taxes imposed with respect to any fees received by Mortgagee; or
(vii) Income Taxes imposed on the Trust or the Owner Participant other than Covered Income Taxes; and
(viii) Taxes imposed by way of deduction or withholding by the U.S. Federal Government on payments to a Person who is not a United States Person or, except for Covered Income Taxes, by any foreign government on payments to any Person (provided, that if in any case any such Taxes are imposed as a result of a change in a tax treaty after the date hereof that is not already published as a proposed change on the date hereof or on the date an Indemnified Party becomes an Indemnified Party, Lessee and the applicable Indemnified Parties agree to negotiate in good faith a restructuring Section 4795 of the transaction contemplated hereby to eliminate such Taxes without changing the economic terms Code or any successor provision thereto. For purposes of this transactionSection 8.2, but if such Taxes are not so eliminated within 90 days from the date each transferee or assignee of the imposition of such Taxes, Lessor may (unless Lessee agrees Mortgagee or a Holder shall be a "Related Party" with respect to extend the indemnity provided for in Section 14(a) above to cover such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition required under Section 13 hereof on the date so selected by Lessor in its notice of termination)each other.
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Taxes Excluded. The indemnity provided for in Section 14(a) above shall not extend to any Taxes not due in whole or part to: (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(aparagraph 13(b) above shall not extend to any of the following:following (in each case, except in the case of Taxes otherwise indemnifiable under the Operative Documents, additional amounts necessary to indemnify a Tax Indemnitee for such Taxes on an After-Tax Basis):
(1) Federal income taxes;
(2) in the case of each Tax Indemnitee which is a Lender, (i) net income taxes and (ii) other taxes that would not have been incurred but for such Indemnitee or a person related thereto being organized in the jurisdiction Participation Agreement 53 imposing such taxes or conducting activities therein that are unrelated to the Overall Transaction;
(3) in the case of each Certificate Holder, (i) net income taxes other than net income taxes imposed by jurisdictions in which such Indemnitee is not otherwise subject to such taxes to the extent such net income taxes exceed the net income taxes that would have been payable if such jurisdiction had treated the Master Lease as a secured loan consistent with the parties' intention and (ii) other taxes that would not have been incurred but for such Indemnitee or a person related thereto being organized in the jurisdiction imposing such taxes or conducting activities therein that are unrelated to the contemplated transactions;
(4) in the case of the Lessor, income, franchise, conduct of business or similar taxes that are imposed on the Lessor and its respective successorsnot the Certificate Holders and that, transferees or assigns permitted under if imposed on the terms of the Operative AgreementsCertificate Holders, taxes on, based on, would not have been indemnified against;
(5) Taxes imposed on or measured byby the net or gross income, the excess profits, receipts, minimum or alternative minimum taxable income, capital, franchisesnet worth, excess profits tax preferences, accumulated earnings or capital gains of a Tax Indemnitee or that are conduct of business, doing business or franchise Taxes of such Tax Indemnitee (other than taxes any Taxes which are, or are in the nature of of, sales, use, value added, transfer, excise, license rental, license, ad valorem or property taxesTaxes imposed by reason of the location, use, operation or presence of a Site or any part thereof or a Person which is the Lessee, any sublessee, any sub-sublessee, assignee or any other Person using through any of the foregoing (including any Affiliate of any of the foregoing, but excluding the Lessor, any Participant or any Affiliate of any such excluded Person) of (each, a "Lessee Person") in such Indemnified Party jurisdiction or the fact that any payment by a Lessee Person contemplated by the Operative Documents is made from such jurisdiction) ("Income Taxes") imposed by the United States of America or any state or local or foreign government or other taxing authority within the United States; provided, however, provisions of this clause (collectively5) relating to Income Taxes shall not exclude from the indemnity described in this Section 13 any state or local Income Taxes imposed by reason of the location, "Income Taxes") use, operation or presence of any Improvement or any part thereof in any state in which a Site is located, other than "Covered Income Taxes" any state which such Tax Indemnitee agrees in writing (as such term on or prior to the Improvements becoming subject to the Operative Documents) is defined below)excluded from the indemnity otherwise implied by the proviso to this clause 5;
(ii6) in the case Taxes arising out of each Financier and the Security Trustee and their respective successors, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by incomeacts, receiptsomissions, capitalevents or periods of time (or any combination of the foregoing) which occur after (and are not attributable to acts, franchises omissions or conduct events occurring contemporaneously with or prior to) the payment in full of business all amounts payable by the Lessee pursuant to and in accordance with the Operative Documents, or the earlier discharge in full of such Indemnified Partythe Lessee's payment obligations under and in accordance with the Master Lease and the other Operative Documents, other than such Taxes imposed by any taxing authority and the earliest of any jurisdiction to the extent such Taxes exceed the amount that would have been imposed had the Aircraft never been operated to or used in such jurisdiction;
(iiix) Taxes relating to the Aircraft for any period after the expiration or early termination of the Lease Term and return of the Aircraft by LesseeSites in accordance with the return provisions of the Participation Agreement 54 Master Lease, (y) the termination of the Master Lease in accordance with the applicable provisions of the Master Lease and return or disposition of the Sites in accordance with the Master Lease, or (z) the termination of the Master Lease in accordance with the applicable provisions of the Master Lease and the transfer of all right, title and interest in the Sites to the Lessee pursuant to its exercise of any of its purchase options (other than sales or other transfer taxes as imposed thereon) except that that, notwithstanding anything to the contrary, Taxes incurred in connection with the exercise of any remedies pursuant to Section 16 hereof following the occurrence of an a Lease Event of to Default or pursuant to Exhibit D shall not be excluded from the indemnity provided for in Section 14(a) hereofindemnity;
(iv7) Taxes imposed against on a Tax Indemnitee that would not have been imposed but for the willful misconduct or gross negligence of any Tax Indemnitee (other than gross negligence or willful misconduct not actually committed by but instead imputed to, such Indemnitee by reason of such Tax Indemnitee's participation in the transactions and entering into the Operative Documents) or the breach by any Tax Indemnitee of any representation, warranty or covenant set forth in the Operative Documents;
(8) Taxes imposed on a Tax Indemnitee which became payable by reason of any transfer or disposition by such Tax Indemnitee of any interest in some or all of the Sites, the Operative Documents, any other Tax Indemnitee or the Trust Estate other than (A) Taxes that result from transfers or dispositions which occur while a Lease Event of Default has occurred and is continuing or (B) Taxes that result from any transfer or disposition pursuant to the terms of the Master Lease (other than Section 19(b) thereof if clause (A) of this Section 13(c)(8) is not applicable);
(9) Taxes imposed upon the Owner Trustee or Security Trustee with respect to any trustee's fees received by it for services rendered in its capacity as Security Trustee trustee;
(10) Taxes that have been included in Property Cost or Transaction Expenses; and
(11) If Lessee cannot under Applicable Law pay any Taxes directly on behalf of a Tax Indemnitee, the Mortgage and failure of such Tax Indemnitee to pay such Taxes for which the Lessee has timely advanced the funds to such Tax Indemnitee to pay such Taxes. Notwithstanding any of the exclusions otherwise set forth in Section 13(c)(1) through (10), the indemnity set forth in Section 13(b) shall apply to any Illinois franchise taxes imposed on the Lessor or with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust Agreement;Lessor if:
(va) the Lessor is a Delaware business trust and (i) files its relevant Illinois tax returns and reports in a manner consistent with such status or (ii) files its relevant Illinois tax returns and reports in a manner inconsistent with such status as the result of, or in response to, any act, omission or breach of any representation, warranty or covenant of a Lessee Person; Participation Agreement 55
(b) any Lessee Person prepares or files a Filing (within the meaning of Section 13(g) pursuant to any Indemnified Party, Taxes Section 13(g)) in respect a manner inconsistent with the status of the Aircraft or Lessor as a Delaware business trust; or
(c) the Operative Agreements which arise out Lessor changes its status from that of or are caused by a Delaware business trust as the willful misconduct or gross negligence of such Indemnified Partyresult of, or the in response to, any act, omission or breach by such Indemnified Party of any express covenantrepresentation, agreement warranty or representation covenant of a Lessee Person or in the Operative Agreements;
(vi) Taxes which become payable by reason of any transfer by an Indemnified Party of all or any portion of its interest in the Aircraft, the Mortgage, the Trust Estate, any interest in any Operative Agreement or shares of stock in an Indemnified Party (other than transfers which occur as a result of connection with the exercise of any rights under Section 16 or Exhibit D hereof, or any remedies under following the Mortgage);
(vii) Income Taxes imposed on the Trust or the Owner Participant other than Covered Income Taxes; and
(viii) Taxes imposed by way of deduction or withholding by the U.S. Federal Government on payments to a Person who is not a United States Person or, except for Covered Income Taxes, by any foreign government on payments to any Person (provided, that if in any case any such Taxes are imposed as a result occurrence of a change in a tax treaty after the date hereof that is not already published as a proposed change on the date hereof or on the date an Indemnified Party becomes an Indemnified Party, Lessee and the applicable Indemnified Parties agree to negotiate in good faith a restructuring Lease Event of the transaction contemplated hereby to eliminate such Taxes without changing the economic terms of this transaction, but if such Taxes are not so eliminated within 90 days from the date of the imposition of such Taxes, Lessor may (unless Lessee agrees to extend the indemnity provided for in Section 14(a) above to cover such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition required under Section 13 hereof on the date so selected by Lessor in its notice of termination)Default.
Appears in 1 contract
Taxes Excluded. The indemnity provided for in Section 14(a) above shall not extend to any Taxes not due in whole or part to: paragraph (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(ab) above shall not extend to any of the following:
(i) in In the case of the Lessor and its respective successors, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured byOwner Participant, the incomeOwner Trustee or the Trust Estate, capitalIncome Taxes (as defined in Section 7.1(l), franchises, excess profits or conduct of business (other than taxes which are in the nature of sales, use, value added, excise, license or property taxesbelow) of such Indemnified Party imposed by (A) the United States federal government (provided that this subclause (A) shall not be construed as preventing Lessee from recouping any such federal Income Taxes imposed by way of America deduction or withholding from the Indenture Trustee, the Pass Through Trustee or any Certificateholder or as giving to the Indenture Trustee a right to indemnification by the Lessee for Taxes payable pursuant to Section 5.09 of the Indenture), (B) any state or local tax jurisdiction in the United States (unless such Tax Indemnitee would not have been subject to tax in such jurisdiction but for this transaction (including the operation or presence of any Unit (or part thereof) and other leasing transactions between the Lessee (or its Affiliates) and the Owner Participant (or its Affiliates) or the Lessee making payment from or performing other actions in such jurisdiction)), provided, that for purposes of determining whether any Tax Indemnitee would not have been subject to tax in such jurisdiction but for this transaction, the determination of (y) whether any Tax Indemnitee is treated as being incorporated or having its principal place of business in any state or local tax jurisdiction for purposes of this clause (B), or (z) whether any such Tax Indemnitee is deemed to be subject to tax in any state or local tax jurisdiction (and would have been subject to such tax without regard to this transaction) for purposes of this clause (B), shall be made by treating each corporation which is a Tax Indemnitee on a stand-alone basis and without regard to any Affiliates, related Tax Indemnitee or other entities, except to the extent that such Tax Indemnitee files combined or consolidated tax returns in such state or local jurisdiction, respectively, with one or more Affiliates which are also Tax Indemnitee, (C) any foreign government or other any political subdivision or taxing authority thereof or any territory or possession of the United States or by any international authority except to the extent such Income Taxes would not have been imposed by such jurisdiction but for the use, location, operation, presence or registration of any Unit or part thereof in such jurisdiction or the activities of the Lessee or any of its Affiliates in such jurisdiction or the making of any payments from such jurisdiction by or on behalf of the Lessee pursuant to the Operative Agreements or any other nexus between such jurisdiction and the transactions contemplated by the Operative Agreements (collectively, "Income Taxes") other than "Covered Income Taxes" such nexus as may result solely from the activities, presence, ownership or receipts of such Tax Indemnitee in each case unrelated to the Operative Agreements or transactions contemplated thereby) or (as such term D) any government or jurisdiction described in (A), (B) or (C) of this clause (i) because the applicable Tax Indemnitee is defined below);not a resident of the United States for tax purposes.
(ii) Taxes imposed with respect to any period after the earliest of the applicable dates of (x) the return of possession of the Equipment to the Owner Participant or the placement of the Equipment in storage at the request of the Owner Participant, in either case pursuant to Section 6 of the Lease, (y) the termination of the Lease Term pursuant to Section 22.1 or Section 22.3 of the Lease, or (z) the discharge in full of the Lessee's obligation to pay the Termination Value or the Stipulated Loss Value and all other amounts due, if any, under Section 10 or 11.2 of the Lease, as the case of each Financier and may be, with respect to the Security Trustee and their respective successors, transferees or assigns permitted under Equipment; provided that the terms of the Operative Agreements, taxes on, based on, or measured by income, receipts, capital, franchises or conduct of business of such Indemnified Party, other than such exclusion set forth in this clause (ii) shall not apply to Taxes imposed by any taxing authority of any jurisdiction to the extent such Taxes exceed the amount that would have been imposed had the Aircraft never been operated relate to events occurring or matters arising prior to or used in such jurisdictionsimultaneously with the applicable time;
(iii) As to any Tax Indemnitee, Taxes relating to the Aircraft for extent caused by any period after misrepresentation or breach of warranty or covenant under the expiration Operative Agreements by such Tax Indemnitee, or early termination by the gross negligence or willful misconduct of the Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise of any remedies pursuant to Section 16 hereof following the occurrence of an Event of Default or pursuant to Exhibit D shall not be excluded from the indemnity provided for in Section 14(a) hereofsuch Tax Indemnitee;
(iv) Taxes imposed against the Owner Trustee or Security Trustee with respect As to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust Agreement;
(v) as to any Indemnified PartyTax Indemnitee, Taxes in respect of the Aircraft or the Operative Agreements which arise out of or are caused by the willful misconduct or gross negligence of such Indemnified Party, or the breach by such Indemnified Party of any express covenant, agreement or representation in the Operative Agreements;
(vi) Taxes which become payable as a result of a sale, assignment, transfer or other disposition (whether voluntary or involuntary) by reason of any transfer by an Indemnified Party such Tax Indemnitee of all or any portion of its interest in the Aircraft, the MortgageEquipment or any part thereof, the Trust Estate, Estate or any interest in any of the Operative Agreement Agreements or shares of stock in an Indemnified Party (rights created thereunder other than transfers which occur as a result of the substitution, modification or improvement of the Equipment or any part thereof or a disposition which occurs as the result of the exercise of remedies for a Lease Event of Default, any rights under Section 16 disposition which occurs during the continuance of a Lease Event of Default or Exhibit D hereofa purchase of any Unit pursuant to the Lease; provided, that, notwithstanding the foregoing but subject to the Tax Indemnity Agreement, Lessee shall not be obligated to indemnify any Tax Indemnitee with respect to net income taxes imposed within the United States as the result of a sale, assignment, transfer or other disposition by such Tax Indemnitee or any remedies under the Mortgage);
(vii) Income Taxes imposed on the Trust or the Owner Participant other than Covered Income Taxes; and
(viii) Taxes imposed by way of deduction or withholding by the U.S. Federal Government on payments to a Person who is not a United States Person or, except for Covered Income Taxes, by any foreign government on payments to any Person (provided, that if in any case any such Taxes are imposed as a result of the status of the Tax Indemnitee as other than a change resident of the United States for tax purposes;
(v) Taxes which result from the Owner Trustee's engaging on behalf of the Trust Estate in transactions unrelated to those permitted or contemplated by the Operative Agreements;
(vi) As to any Tax Indemnitee, Taxes to the extent they exceed the Taxes that would have been imposed had the initial Tax Indemnitee not transferred, sold or otherwise disposed of any interest held by such Tax Indemnitee pursuant to any of the Operative Agreements such excess to be determined based on a tax treaty after certificate of the date hereof original Tax Indemnitee provided to the Lessee immediately prior to a transfer, sale or other such disposition of such interest, such certificate to set forth the state and local jurisdictions in which the original Tax Indemnitee would not be entitled to indemnification in accordance with (S) 7.1(c)(i)(B) and (C) hereof, provided, however, that is this provision shall not already published as a proposed change apply to the determination of amounts required to make payments on an After-Tax Basis; and
(vii) Taxes imposed on the date hereof or Owner Trustee based on the date an Indemnified Party becomes an Indemnified Party, Lessee and Owner Trustee's fee for services under the applicable Indemnified Parties agree to negotiate in good faith a restructuring of the transaction contemplated hereby to eliminate such Taxes without changing the economic terms of this transaction, but if such Taxes are not so eliminated within 90 days from the date of the imposition of such Taxes, Lessor may (unless Lessee agrees to extend the indemnity provided for in Section 14(a) above to cover such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition required under Section 13 hereof on the date so selected by Lessor in its notice of termination)Trust Agreement.
Appears in 1 contract
Taxes Excluded. The indemnity provided for in Section 14(a7.1 (b) above shall not extend to any Taxes not due in whole or part to: (1) the acts or omissions of Lessee; (2) the delivery or acceptance of the Aircraft by or to Lessee; (3) the use, possession, maintenance or operation of the Aircraft by Lessee; (4) the misrepresentations of Lessee; or (v) the breach of any covenant or warranty by Lessee. The indemnity provided for in Section 14(a) above shall not extend to any of the followinginclude:
(i) in the case of the Lessor and its respective successorsas to any Equity Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by, the income, capital, franchises, excess profits or conduct of business (other than taxes which are in the nature of sales, use, value added, excise, license or property taxes) of such Indemnified Party any Income Tax imposed by the United States of America or federal government (but not excluding any state or local or foreign government or other taxing authority (collectively, "Income Taxes") other than "Covered Income Taxes" (as such term is defined belowTax required to make a payment on an After-Tax Basis);
(ii) in the case of each Financier and the Security Trustee and their respective successorsas to any Equity Tax Indemnitee, transferees or assigns permitted under the terms of the Operative Agreements, taxes on, based on, or measured by income, receipts, capital, franchises or conduct of business of such Indemnified Party, other than such Taxes any Income Tax imposed by any state, local or foreign government or taxing authority of any jurisdiction or subdivision thereof (but not excluding an Income Tax required to make a payment on an After-Tax Basis); provided, however, that this exclusion shall not apply to the extent such Taxes relate directly or indirectly to (I) the use, location of any item of the Equipment or the activities of the Lessee in the taxing jurisdiction, (II) the presence or organization of the Lessee in the taxing jurisdiction, (III) any payment by or on behalf of the Lessee being made from the taxing jurisdiction, or (IV) the execution or delivery of any Operative Agreement by the Lessee in the taxing jurisdiction; provided, further, however, that the preceding proviso shall not apply to any Taxes that are solely attributable to the fact that the Owner Trust, the Owner Trustee (other than in its individual capacity) or the Owner Participant or any Related Party thereto has its legal domicile or a principal place of business in the taxing jurisdiction (determined without regard to the transactions contemplated by the Operative Agreements or any similar lease transaction between the Owner Participant and the Lessee or an Affiliate of the Lessee);
(iii) as to any Equity Tax Indemnitee, any Tax that is imposed as a result of the voluntary sale, transfer or other disposition, or any involuntary sale, transfer or other disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Equity Tax Indemnitee is a debtor, by the Lessor or the Owner Participant of any of its rights with respect to any item of Equipment or the Owner Participant's interest in the Trust Estate unless such sale, transfer or other disposition is during the continuance of a Lease Event of Default or is otherwise pursuant to the Lessor's exercise of its rights under the Operative Agreements or is as a result of (x) any substitution, replacement, improvement, modification or addition to the Equipment or any portion thereof by the Lessee, a Sublessee, or a Related Party to the Lessee or Sublessee, (y) a requirement of the Lessee in the Operative Agreements or under applicable law, or (z) a purchase of the Equipment or any Unit thereof pursuant to the Lease or the other Operative Agreements;
(iv) as to any Equity Tax Indemnitee, any Taxes to the extent they exceed the amount Taxes that would have been imposed had the Aircraft never been operated to or used in if such jurisdiction;
(iii) Taxes relating to the Aircraft for any period after the expiration or early termination of the Term and return of the Aircraft by Lessee, except that Taxes incurred in connection with the exercise of any remedies pursuant to Section 16 hereof following the occurrence of an Event of Default or pursuant to Exhibit D shall not be excluded from the indemnity provided for in Section 14(a) hereof;
(iv) Taxes imposed against the Owner Trustee or Security Trustee with respect to any fees received by it for services rendered in its capacity as Security Trustee under the Mortgage and Taxes imposed on the Lessor with respect to fees or compensation for services rendered in its capacity as Trustee under the Trust AgreementEquity Tax Indemnitee were a U.S. Person;
(v) as Taxes imposed on a Lender Tax Indemnitee, excluding the Policy Tax Indemnitee, with respect to any Indemnified Partyperiod after the payment in full of the Equipment Notes; provided that the exclusion set forth in this clause (v) shall not apply to Taxes to the extent such Taxes (I) relate directly or indirectly to events occurring or matters arising prior to or simultaneously with the date on which all of the principal of, Taxes interest on and all other amounts payable in respect of the Aircraft Equipment Notes have been paid in full or the Operative Agreements which arise out (II) result from a Lease Event of or are caused by the willful misconduct or gross negligence of such Indemnified Party, or the breach by such Indemnified Party of any express covenant, agreement or representation in the Operative AgreementsDefault that has occurred and is continuing;
(vi) Taxes imposed on the Policy Tax Indemnitee with respect to any period after the payment in full of all Equipment Notes, all Policy Provider Amounts and Policy Provider Reimbursement Costs; provided that the exclusion set forth in this clause (vi) shall not apply to Taxes to the extent such Taxes (I) relate directly or indirectly to events occurring or matters arising prior or simultaneously with the date on which all of the principal of, interest on and other amounts payable in respect of the Equipment Notes, all Policy Provider Amounts and all Policy Provider Reimbursement Costs have been paid in full or (II) result from a Lease Event of Default that has occurred and is continuing;
(vii) as to any Tax Indemnitee, Taxes to the extent caused by any misrepresentation or breach of warranty or covenant by such Tax Indemnitee or a Related Party of such Tax Indemnitee under any of the Operative Agreements (except to the extent such misrepresentations or breach is attributable to any act or omissions of the Lessee or any sublessee, transferee or assignee of the Lessee) or by the gross negligence or willful misconduct of such Tax Indemnitee or such Related Party;
(viii) as to any Lender Tax Indemnitee, Taxes that become payable as a result of a voluntary sale, assignment, transfer or other disposition, or any involuntary sale, transfer or other disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Lender Tax Indemnitee is a debtor, by reason of any transfer by an Indemnified Party such Lender Tax Indemnitee of all or any portion of its interest in the AircraftEquipment or any part thereof, the MortgageEquipment Notes, the Trust Estate, the Indenture Estate or any interest of the Operative Agreements or rights created thereunder; provided, however, that is this clause (viii) shall not apply in the case of any Operative Agreement sale assignment, transfer or shares other disposition (whether voluntary of stock in an Indemnified Party (other than transfers involuntary) which occur occurs as a result of or while a Lease Event of Default has occurred and is continuing or which occurs as a result of (v) the exercise of remedies for a Lease Event of Default, (w) any rights under Section 16 substitution, replacement, improvement, modification or Exhibit D hereof, addition to the Equipment or any remedies portion thereof by a Lessee, Sublessee or a Related Party to the Lessee or Sublessee, (x) a requirement in the Operative Agreements or under applicable law, (y) a purchase of the MortgageEquipment or any Unit thereof pursuant to the Lease or the other Operative Agreements or (z) any assignment to the Policy Provider pursuant to the Policy Provider Documents;
(ix) as to any Lender Tax Indemnitee, Taxes imposed as the result of such Lender Tax Indemnitee not being a U.S. Person;
(x) as to any Lender Tax Indemnitee, Income Taxes or transfer taxes relating to any payments of principal of, interest on or Make Whole Amount or other amounts in respect thereof, if any, on the Equipment Notes or the Pass Through Certificates paid to such Tax Indemnitee provided, that this clause (x) should not be interpreted to prevent any payment from being made on an After-Tax Basis, and provided further that this clause (x) shall not apply to Taxes attributable to (I) the use or location of any item of Equipment or the activities of the Lessee in the taxing jurisdiction, (II) the presence or organization of the Lessee in the taxing jurisdiction or (III) the execution or delivery of any Operative Agreement in the taxing jurisdiction; provided, further, however, the preceding provision shall not apply to any 60 jurisdiction where such Lender Tax Indemnitee or any Related Party of such Lender Tax Indemnitee has its legal domicile or a place of business (determined without regard to the transitions contemplated by the Operative Agreements);
(viixi) Income Taxes to the extent directly resulting from or that would not have been imposed but for (x) in the case of Taxes imposed on or with respect to any Equity Tax Indemnitee, the Trust existence of any Lessor Liens with respect to such Equity Tax Indemnitee, or (y) in the Owner Participant other than Covered Income Taxes; andcase of Taxes imposed on or with respect to any Lender Tax Indemnitee, the existence of any Liens attributable to the Indenture Trustee that are unrelated to the transactions contemplated by the Operative Agreements or Liens attributable to the Pass Through Trustee that are unrelated to the transactions contemplated by the Operative Agreements;
(viiixii) Taxes imposed by way of deduction or withholding by on a Tax Indemnitee to the U.S. Federal Government on payments to a Person who is not a United States Person or, except for Covered Income Taxes, by any foreign government on payments to any Person (provided, extent that if in any case any such Taxes are would not have been imposed as upon such Tax Indemnitee but for any failure of such Tax Indemnitee or a result Related Party of a change in a tax treaty after such Tax Indemnitee to comply with (x) any certification, information, documentation, reporting or other similar requirements concerning the date hereof that is not already published as a proposed change on nationality, residence, identity or connection with the date hereof or on the date an Indemnified Party becomes an Indemnified Party, Lessee and the applicable Indemnified Parties agree to negotiate in good faith a restructuring of the transaction contemplated hereby to eliminate such Taxes without changing the economic terms of this transaction, but if such Taxes are not so eliminated within 90 days from the date of the imposition of jurisdiction imposing such Taxes, Lessor may (unless Lessee agrees to extend the indemnity provided for in Section 14(a) above to cover if such Taxes) elect to terminate this Lease on not less than an additional 90 days prior notice to Lessee, whereupon the Term of this Lease shall terminate and Lessee shall return the Aircraft to Lessor in the condition compliance is required under Section 13 hereof on the date so selected by Lessor laws or regulations of such jurisdiction to obtain or establish relief or exemption from or reduction in its notice of termination).such Taxes and the Tax Indemnitee or such Related Party was eligible to comply with such requirement or
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