Exceptions. Notwithstanding any provision of this Section 39(a) to the contrary, Lessee will not be required to make any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the following: (i) other than as a result of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms; (ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement; (iii) the gross negligence or willful misconduct of such Tax Indemnitee; (iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents; (v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement; (vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement; (vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement); (viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law; (ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits; (x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term; (xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit; (xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41; (xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder; (xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi); (xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents); (xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Sublease.
Appears in 6 contracts
Sources: Master Lease and Sublease (Global Signal Inc), Master Lease and Sublease (Global Signal Inc), Master Lease and Sublease (Global Signal Inc)
Exceptions. Notwithstanding any provision of this anything in Section 39(a) to the contrary9.1(a), Lessee will Borrower shall not be required to make indemnify, protect, defend or hold harmless any payment Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Indemnitee in respect of any Tax Loss Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent that attributable to any Transfer (voluntary or involuntary) by or on behalf of such Tax Loss occurs Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of one any such Transfer requested in writing by Borrower or more made or effected as required by or pursuant to the terms of the following:
(i) other than as a result of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement Operative Agreements or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes made or that the members of the Sprint Group, directly effected in connection with or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable pursuant to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this any Operative Agreement;
(iii3) to the extent attributable to the gross negligence or willful misconduct of such Tax Indemnitee or any “Related Indemnitee;
” (iv) penalties, interest, or additions to Tax to as defined at the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 end of this Agreement;
(viSection 9.1(b)) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such Person solely by reason of its interest in whole the Aircraft or part being party to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viii4) to the extent attributable to the incorrectness or breach of any change representation or warranty of such Indemnitee or any Related Indemnitee, contained in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply made pursuant to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in LawOperative Agreement;
(ix5) to the extent attributable to the failure of the Sprint Groupby such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax BenefitsOperative Agreement;
(x6) to the inclusion extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of income any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a Sprint Group Member cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of the reversion any non-exempt “prohibited transaction” under 406(a) of Alterations made by Lessee to Lessor at the end of the Term;
(xiERISA or Section 4975(c)(1) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 caused by such Indemnitee. For purposes of this Agreement Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseAffiliate.
Appears in 6 contracts
Sources: Loan Agreement (Airtran Holdings Inc), Loan Agreement (Airtran Holdings Inc), Loan Agreement (Airtran Holdings Inc)
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary8.1.1, Lessee will Owner shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 8.1.1 in respect of any Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax Loss benefit, whether or not Owner is required to indemnify therefor pursuant to Section 8.3;
(b) Except to the extent that any such Tax Loss occurs as a result attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of one or more its obligations pursuant to the terms of the following:
(iOperative Agreements) other than as a result of an Alteration by Lessee, that occur after the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement Trust Indenture is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply required to this Agreement be terminated in accordance with its terms;
Section 11.01 of the Trust Indenture; provided, that nothing in this clause (iib) the voluntary sale, assignment, transfer, shall be deemed to exclude or other disposition limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the for damages from Owner for breach of any covenant or obligation of the Tax Indemnitee set forth Owner's covenants contained in the Transaction Documents of Operative Agreements or by to release Owner from any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(Cc) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note or interest therein, except for out-of-pocket costs and expenses incurred as a default by Lessee and/or result of any such Transfer pursuant to the exercise of remedies under this any Operative Agreement;
(iiid) [Intentionally Omitted]
(e) To the extent attributable to the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group Indemnitee or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3related Indemnitee (as defined below) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such person by reason of its interest in whole the Aircraft or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viiif) [Intentionally Omitted]
(g) To the extent attributable to the incorrectness or breach of any change representation or warranty of such Indemnitee or any related Indemnitee contained in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply made pursuant to any (1) change in tax rates applicable to the making of Operative Agreement or any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in LawPass Through Agreement;
(ixh) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(i) To the extent attributable to the offer or sale by such Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of Owner);
(i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to the failure of the Sprint GroupMortgagee to distribute funds received and distributable by it in accordance with the Trust Indenture, or (ii) with respect to any single Sprint Group MemberIndemnitee (other than the Subordination Agent), to have sufficient income the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (v) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or Tax liability willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (viii) with respect to benefit from the Federal Income Tax BenefitsSubordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (x) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement;
(xk) Other than during the inclusion continuation of income an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(l) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner;
(m) To the extent that it is an ordinary and usual operating or overhead expense;
(n) [Intentionally Omitted]
(o) For any Lien attributable to such Indemnitee or any related Indemnitee;
(p) If another provision of an Operative Agreement or a Sprint Group Member Pass Through Agreement specifies the extent of Owner's responsibility or obligation with respect to such Expense, to the extent arising from other than failure of Owner to comply with such specified responsibility or obligation; or
(q) To the extent incurred by or asserted against an Indemnitee as a result of any "prohibited transaction", within the reversion meaning of Alterations made by Lessee to Lessor at the end Section 406 of ERISA or Section 4975(c)(1) of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 Code. For purposes of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by 8.1, a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of Person shall be considered a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss "related" Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any period occurring after (and not simultaneously with) (1) the expiration such Affiliate or earlier termination a successor or permitted assignee of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseforegoing.
Appears in 6 contracts
Sources: Note Purchase Agreement (United Airlines, Inc.), Note Purchase Agreement (United Airlines, Inc.), Note Purchase Agreement (United Airlines, Inc.)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Stockholder will not be required to make comply with Subsection 3.2 above in connection with any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more proposed Sale of the followingCompany (the “Proposed Sale”), unless:
(a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) other than as a result the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of an Alteration by Lesseeall liens and encumbrances, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation obligations of the Tax Indemnitee set forth Stockholder in connection with the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliatestransaction have been duly authorized, in either caseif applicable, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or willful misconduct violation of such Tax Indemniteethe terms of any agreement, law or judgment, order or decree of any court or governmental agency;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vib) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion Stockholder shall not apply to any (1) change in tax rates applicable to be liable for the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, representation or warranty or covenant made by any Sprint Group Member other Person in any of connection with the Transaction Documents Proposed Sale, other than the Company (except to the extent such that funds may be paid out of an escrow established to cover breach or inaccuracy is attributed to a of representations, warranties and covenants of the Company as well as breach or inaccuracy by any stockholder of any representationof identical representations, warranty or covenant of Lessee or an Affiliate under the Transaction Documentswarranties and covenants provided by all stockholders);
(xvic) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any exclusion under Section 39(a)(4representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale;
(d) liability shall be limited to such Stockholder's applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of any Cross-Defaulted Master Lease a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; and
(e) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, and Sublease(iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock.
Appears in 5 contracts
Sources: Voting Agreement (Gin & Luck Inc.), Voting Agreement (Gin & Luck Inc.), Voting Agreement (Gin & Luck Inc.)
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary8.1.1, Lessee will Owner shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 8.1.1 in respect of any Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax Loss benefit, whether or not Owner is required to indemnify therefor pursuant to Section 8.3;
(b) Except to the extent that any such Tax Loss occurs as a result attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of one or more its obligations pursuant to the terms of the following:
(iOperative Agreements) other than as a result of an Alteration by Lessee, that occur after the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement Trust Indenture is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply required to this Agreement be terminated in accordance with its terms;
Section 11.01 of the Trust Indenture; provided, that nothing in this clause (iib) the voluntary sale, assignment, transfer, shall be deemed to exclude or other disposition limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the for damages from Owner for breach of any covenant or obligation of the Tax Indemnitee set forth Owner’s covenants contained in the Transaction Documents of Operative Agreements or by to release Owner from any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(Cc) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note or interest therein, except for out-of-pocket costs and expenses incurred as a default by Lessee and/or result of any such Transfer pursuant to the exercise of remedies under this any Operative Agreement;
(iiid) [Intentionally Omitted]
(e) To the extent attributable to the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group Indemnitee or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3related Indemnitee (as defined below) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such person by reason of its interest in whole the Aircraft or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viiif) [Intentionally Omitted]
(g) To the extent attributable to the incorrectness or breach of any change representation or warranty of such Indemnitee or any related Indemnitee contained in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply made pursuant to any (1) change in tax rates applicable to the making of Operative Agreement or any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in LawPass Through Agreement;
(ixh) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(i) To the extent attributable to the offer or sale by such Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of Owner);
(i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to the failure of the Sprint GroupMortgagee to distribute funds received and distributable by it in accordance with the Trust Indenture, or (ii) with respect to any single Sprint Group MemberIndemnitee (other than the Subordination Agent), to have sufficient income the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (v) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or Tax liability willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (viii) with respect to benefit from the Federal Income Tax BenefitsSubordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (x) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement;
(xk) Other than during the inclusion continuation of income an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(l) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner;
(m) To the extent that it is an ordinary and usual operating or overhead expense;
(n) [Intentionally Omitted]
(o) For any Lien attributable to such Indemnitee or any related Indemnitee;
(p) If another provision of an Operative Agreement or a Sprint Group Member Pass Through Agreement specifies the extent of Owner’s responsibility or obligation with respect to such Expense, to the extent arising from other than failure of Owner to comply with such specified responsibility or obligation; or
(q) To the extent incurred by or asserted against an Indemnitee as a result of any “prohibited transaction”, within the reversion meaning of Alterations made by Lessee to Lessor at the end Section 406 of ERISA or Section 4975(c)(1) of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 Code. For purposes of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by 8.1, a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of Person shall be considered a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss “related” Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any period occurring after (and not simultaneously with) (1) the expiration such Affiliate or earlier termination a successor or permitted assignee of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseforegoing.
Appears in 5 contracts
Sources: Note Purchase Agreement (United Airlines, Inc.), Note Purchase Agreement (United Airlines, Inc.), Note Purchase Agreement
Exceptions. Notwithstanding any provision of this The indemnity provided for in Section 39(a9.01(a) to the contrary, Lessee will shall not be required to make any payment extend to any Tax Indemnitee in respect Expense of any Tax Loss Indemnitee to the extent that any such Tax Loss occurs as a result of one or more of the followingit:
(i) other than as a result would not have occurred but for the willful misconduct or gross negligence of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termssuch Indemnitee;
(ii) is in respect of the voluntary saleAircraft, assignmentand is attributable to acts or events which occur after the Aircraft is no longer part of the Lessor's Estate or leased under the Lease or, transferif the Aircraft remains a part of the Lessor's Estate, after the expiration of the Term and any holdover period under Section 12.05 of the Lease (other than pursuant to Article 17 of the Lease, in which case the indemnity provided in Section 9.01(a) hereof shall survive for so long as Lessor or the Indenture Trustee shall be entitled to exercise remedies under such Article 17), or other disposition to acts or events which occur after return of possession of the involuntary sale, assignment, transfer, or other disposition Aircraft by the Lessee in accordance with the provisions of the Lease but in any such case only to the extent not fairly attributable to the bankruptcy, insolvency acts or the breach of any covenant or obligation omissions of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any Lessee prior to expiration of the Leased Property or portion Term and any holdover period under Section 12.05 of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a salethe Lease, assignment, transfer, or disposition (A) contemplated by including without limitation the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance Lessee's failure to fully discharge all of its obligations under the Transaction Documents; Lease or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreementthe other Operative Agreements or the Original Agreements;
(iii) is a Tax, whether or not the gross negligence Lessee is required to indemnify therefor pursuant to Article 8 hereof or willful misconduct of such pursuant to the Tax IndemniteeIndemnity Agreement;
(iv) penalties, interest, is a cost or additions expense required to Tax be paid by the Owner Participant or its permitted transferees (and not by the Lessee) pursuant to the extent based upon issues unrelated to the transactions contemplated by this Agreement or any other Operative Agreement (other than the Owner Participant's obligations under Section 6.01 of the Trust Agreement) and related documentsfor which the Lessee is not otherwise obligated to reimburse the Owner Participant, directly or indirectly;
(v) Lessee's exercise would not have been incurred by such Indemnitee if such Indemnitee had not been in breach of its representations or warranties, or had not defaulted in the observance and performance of the purchase option provided terms and provisions required to be observed and performed by it, in Section 36 of this Agreement, the Purchase Agreement Assignment, the Lease, the Indenture, the Trust Agreement, the Original Agreements or any other Operative Agreement to which it is a party unless such breach or default shall be a result of the breach or default of any of the foregoing by the Lessee or another Indemnitee;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement[reserved];
(vii) any failure in the case of the Tax Indemnitee to have taken all the actionsOwner Participant, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part Lessor's Liens to the failure extent attributable to the Owner Participant; in the case of Lessee the Owner Trustee, Lessor's Liens to follow the procedures set forth extent attributable to the Owner Trustee; and in Section 39(d) the case of this Agreement)the Indenture Trustee, Indenture Trustee's Liens;
(viii) any change is in Law enactedthe case of the Owner Participant or the Owner Trustee, adopted to the extent attributable to the offer or promulgated on or sale by such Indemnitee after the date Delivery Date of any interest in the Aircraft, the Lessor's Estate or the Trust Agreement or any similar interest (including an offer or sale resulting from bankruptcy or other proceedings for the relief of debtors in which such Indemnitee is the debtor), unless in each case such offer or sale shall occur (w) in connection with a Refinancing, (x) as a result of exercise of remedies under Article 17 of the Agreement to Lease, (y) during a period when an Event of Loss has occurred or (z) in connection with the termination of the Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable or action or direction of the Lessee pursuant to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;Lease; or
(ix) which is incurred by the failure Owner Participant or any person who is a "disqualified person", within the meaning of Section 4975(e)(2) of the Sprint GroupCode, or any single Sprint Group Membera "party in interest", within the meaning of Section 3(14) of ERISA, by virtue of such person's relationship to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) Owner Participant, as the inclusion of income by a Sprint Group Member as a result of any prohibited transaction, within the reversion meaning of Alterations made by Lessee to Lessor at the end Section 406 of ERISA or Section 4975(c)(1) of the Term;
Code, occurring with respect to the purchase or holding of any Pass Through Certificate (xii) a determination that Sprint is not over which purchase or holding the Leased Property Owner Participant or any Affiliate thereof has discretion or control (other than in the ordinary course capacity of a trade directed trustee or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence ofcustodian), or any consequence of(ii) by an employee benefit plan, within the prepayment meaning of the RentSection 3(3) of ERISA, or the application of individual retirement account or plan subject to Section 467 4975 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to which the Owner Participant (or any period occurring after (and not simultaneously withAffiliate thereof) (1) has the expiration power, directly or earlier termination indirectly, to appoint or terminate, or to negotiate the terms of the Term with respect to a Site management agreement with, the person or persons having discretion or control (2) the return to Sprint of the Leased Property related to a Site, in either case other than interestin the capacity of a directed trustee or custodian), fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach over such purchase or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseholding.
Appears in 4 contracts
Sources: Participation Agreement (Federal Express Corp), Participation Agreement (Federal Express Corp), Participation Agreement (Federal Express Corp)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee will a Shareholder shall not be required to make comply with Section 3.2 in connection with any payment proposed Sale of the Company (the "Proposed Sale") unless:
(a) any representations and warranties to any Tax Indemnitee be made by such Shareholder in respect connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including representations and warranties that (i) the Shareholder holds all right, title and interest in and to the Shares such Shareholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Shareholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Shareholder have been duly executed by the Shareholder and delivered to the acquirer and are enforceable against the Shareholder in accordance with their respective terms, and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Shareholder's obligations thereunder, will cause a breach or violation of the terms of any Tax Loss agreement, law or judgment, order or decree of any court or governmental agency;
(b) the Shareholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except that and only to the extent that any such Tax Loss occurs as a result funds may be paid out of one or more an escrow established to cover breach of representations, warranties and covenants of the following:Company as well as breach by any Shareholder of any representations, warranties and covenants provided by all Shareholders with respect to the Company);
(c) the liability for indemnification, if any, of such Shareholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Shareholders in connection with such Proposed Sale is several and not joint with any other Person (except that and only to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Shareholder of any representations, warranties and covenants provided by all Shareholders with respect to the Company), and subject to the provisions of the Articles related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Shareholder in connection with such Proposed Sale;
(d) liability shall be limited to such Shareholder's applicable share (determined based on the respective proceeds payable to each Shareholder in connection with such Proposed Sale in accordance with the provisions of the Articles) of a negotiated aggregate indemnification amount that applies equally to all Shareholders but that in no event exceeds the amount of consideration otherwise payable to such Shareholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Shareholder, the liability for which need not be limited as to such Shareholder;
(e) upon the consummation of the Proposed Sale, (i) each holder of each class or series of Shares will receive the same form of consideration for their Shares of such class or series as is received by other than holders in respect of their Shares of such same class or series, (ii) each holder of Common Shares will receive the same amount of consideration per Common Share as is received by other holders in respect of their Common Shares, and (iii) the aggregate consideration receivable by all Shareholders shall be allocated among the Shareholders on the basis of the relative liquidation preferences to which the Shareholders are entitled in a result of an Alteration by Lessee, the entry into a New Lease under Section 40 of Deemed Liquidation Event (assuming for this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or purpose that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement Proposed Sale is a Deemed Liquidation Event) in accordance with its terms;
the Articles in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for any Shareholder's Shares pursuant to this Section 3.3(e) includes any securities and due receipt thereof by any Shareholder would require under applicable law (i) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (ii) the voluntary saleprovision to any Shareholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to Accredited Investors, assignmentthe Company may cause to be paid to any such Shareholder in lieu thereof, transferagainst surrender of such Shareholders' Shares, or other disposition or the involuntary salewhich would have otherwise been sold by such Shareholder, assignment, transfer, or other disposition attributable an amount in cash equal to the bankruptcy, insolvency or fair value (as determined in good faith by the breach of any covenant or obligation Board) of the Tax Indemnitee set forth in the Transaction Documents securities which such Shareholder would otherwise receive as of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement issuance of such securities in exchange for such Shareholder's Shares; and
(f) subject to Lease and SubleaseSection 3.3(e), provided that this exclusion shall not apply to if any (1) change in tax rates applicable holders of any class or series of Shares are given an option as to the making form and amount of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, consideration to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee such class or series of Shares will be given the same option; provided, however, that nothing in this Section 3.3(f) shall entitle any holder to Lessor at the end receive any form of the Term;
(xi) consideration that such holder would be ineligible to receive as a determination result of such holder's failure to satisfy any condition, requirement or limitation that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply generally applicable to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseShareholders.
Appears in 4 contracts
Sources: Private Placement Subscription Agreement (Naqi Logix Inc.), Subscription Agreement (Naqi Logix Inc.), Voting Agreement (Naqi Logix Inc.)
Exceptions. Notwithstanding any provision of this Section 39(a(a) Exceptions to the contrary, indemnity for Inclusions. Lessee will shall not be required to make any payment indemnify Lessor pursuant to any Tax Indemnitee in respect of any Tax Loss Article 8A.1
(a) for Taxes to the extent arising from any of the following Inclusions:
(i) any Inclusion caused by an event that occurs after the expiration or earlier termination of this Lease, the payment by Lessee of all Rent and other amounts due pursuant to the Operating Lease Operative Documents, and (if required by the terms of this Lease) the return of the Aircraft to Lessor in accordance with the terms of this Lease, provided that the exclusion set forth in this Article 8A.2
(a) (i) shall not apply to any Inclusion to the extent such Tax Loss occurs as Inclusion is a result of one or more of events occurring or circumstances existing prior to or concurrently with the following:
(i) other than as a result of an Alteration by Lessee, the entry into a New Lease under Section 40 expiration or earlier termination of this Agreement Lease or to any payment or amount payable by Lessee pursuant to this Lease or any severance of this Agreement under Section 41other Operating Lease Operative Document, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;or
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than Inclusion that would not have occurred but for a sale, assignment, transfertransfer or other disposition by Lessor of any interest in the Aircraft or this Lease, either voluntarily or by reason of bankruptcy or similar proceedings for the relief of debtors in which Lessor is the debtor, unless in either case such disposition occurs in connection with or as a result of (A) contemplated by the Transaction Documents; an Event of Default, (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or a Casualty Occurrence, (C) attributable to a default any substitution, replacement or pooling of the Aircraft or any part thereof, (D) any maintenance, repair, improvement, modification or alteration of, or addition to, the Aircraft or any part thereof, or unless in either case such disposition is required by Lessee and/or exercise of remedies under this Agreement;applicable Law, or
(iii) any Inclusion that would not have occurred but for (A) the refinancing of the Loan Certificates or (B) the gross negligence or willful misconduct of such Tax Indemnitee;Lessor, or
(iv) penaltiesany Inclusion that would not have occurred but for the timing of the recognition of income under Section 467 of the Code unless such Inclusion would not have occurred but for (A) any payment of Rent on a date prior to the date on which such payment is scheduled to be due, interest(B) any payment by Lessee of any expenses of any Tax Indemnitee, or additions (C) the acquisition by Lessee or another Lessee Related Person of any interest in the Loan Certificates or any other evidence of indebtedness issued by the Head Lessor to Tax to refund or refinance the extent based upon issues unrelated to Loan Certificates in accordance with the transactions contemplated by this Agreement and related documents;Head Lease Operative Documents, or
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to Inclusion that would not have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis occurred but for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law or addition to the Internal Revenue Code of 1986, any other statute relating to Federal income taxes, any treaty, any regulation, revenue ruling, revenue procedure or other administrative interpretation, or any executive order that is enacted, adopted promulgated or promulgated on or issued after the date of the Agreement to Lease and SubleaseDelivery Date, provided that the exclusion in this exclusion clause (v) shall not apply to any Inclusion resulting from (1A) change in tax rates applicable any alteration, improvement, modification, pooling, repair, addition, replacement or substitution of or to the making Aircraft or any part thereof, (B) any payment by Lessee of any indemnity payment for a expenses of any Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis Indemnitee, or (bC) respecting an Inclusion the acquisition by Lessee or (2) substitution or replacement another Lessee Related Person of any Leased Property after a change interest in Law;the Loan Certificates or any other evidence of indebtedness issued by the Head Lessor to refund or refinance the Loan Certificates in accordance with the Head Lease Operative Documents, or
(ixvi) the failure of the Sprint Group, any Inclusion that would not have occurred but for an event or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member occurrence as a result of the reversion of Alterations made which Lessee is required to pay and shall have paid in full an amount calculated by Lessee reference to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseAgreed Value.
Appears in 4 contracts
Sources: Lease Agreement (Midway Airlines Corp), Lease Agreement (Midway Airlines Corp), Lease Agreement (Midway Airlines Corp)
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary9.1.1, Lessee will shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 9.1.1 in respect of any Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax Loss benefit, whether or not Lessee is required to indemnify therefor pursuant to Section 9.3 or the Tax Indemnity Agreement;
(b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Lessee of its obligations pursuant to the terms of the Lessee Operative Agreements) that occur after the earliest of: (i) with respect to the Airframe, any Engine or any Part, the return of possession (it being understood that the date of the placement of the Aircraft in storage as provided in Section 5 of the Lease constitutes the date of return of the Aircraft under the Lease) of such Tax Loss occurs Airframe, Engine or Part pursuant to the terms of and in compliance with the Lease (other than pursuant to Section 15 thereof, in which case Lessee's liability under this Section 9.1 shall survive for so long as Lessor shall be entitled to exercise remedies under such Section 15) or (ii) the termination of the Term in accordance with the Lease;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note or interest therein, except (i) for out-of-pocket costs and expenses incurred as a result of one or more any such Transfer pursuant to the exercise of remedies under any Operative Agreement resulting from a Lease Event of Default and (ii) as otherwise required by the terms of Section 2.13 of the following:Trust Indenture or Section 11 hereof;
(id) other than To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of Owner Participant of any interest in the Aircraft, or the Trust Estate except for out-of-pocket costs and expenses incurred as a result of any such Transfer in connection with the exercise of remedies attributable to the occurrence of an Alteration by Lessee, the entry into Indenture Event of Default that is a New Lease under Section 40 Event of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termsDefault;
(iie) To the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition extent attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group Indemnitee or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3related Indemnitee (as defined below) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such person by reason of its interest in whole the Aircraft or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viiif) any change in Law enactedIn the case of First Security, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change extent attributable to matters enumerated in Lawthe proviso to Section 14;
(ixg) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(h) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(i) To the extent attributable to the offer or sale by such Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Trust Certificates, the Trust Estate or the Trust Agreement or any similar interest, in violation of the Securities Act or other applicable federal, state or foreign securities Laws (other than any thereof caused by the acts or omissions of Lessee);
(i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to the failure of the Sprint GroupMortgagee to distribute funds received and distributable by it in accordance with the Trust Indenture, (ii) with respect to any Indemnitee (other than the Owner Trustee), to the extent attributable to the failure of the Owner Trustee to distribute funds received and distributable by it in accordance with the Trust Agreement, (iii) with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iv) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (v) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (vi) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vii) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (viii) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (ix) with respect to Owner Trustee, to the extent attributable to the negligence or willful misconduct of Owner Trustee in the distribution of funds received and distributable by it in accordance with the Trust Agreement, (x) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (xi) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (xii) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement, and (xiii) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement.
(k) Other than during the continuation of a Lease Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Lessee or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(l) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Lessee;
(m) To the extent that it is an ordinary and usual operating or overhead expense;
(n) With respect to the Owner Participant or the Owner Trustee, or any single Sprint Group Memberrelated Indemnitee, to have sufficient income the extent attributable to the deregistration of the Aircraft under the Act as a result of Owner Participant's or Tax liability Owner Trustee's (or any related Indemnitee of either) not being a Citizen of the United States as a result of any act (other than reregistration of the Aircraft pursuant to benefit from Section 7.1.2 of the Federal Income Tax BenefitsLease) of Owner Participant or Owner Trustee, or any related Indemnitee of either of the foregoing (not taken at the request of the Lessee);
(xo) For any Lessor Lien attributable to such Indemnitee or any related Indemnitee;
(p) If another provision of an Operative Agreement or a Pass Through Agreement specifies the inclusion extent of income Lessee's responsibility or obligation with respect to such Expense, to the extent arising from other than failure of Lessee to comply with such specified responsibility or obligation;
(q) To the extent constituting principal, Make-Whole Amount or interest on the Equipment Notes attributable solely to an Event of Default not constituting a Lease Event of Default;
(r) To the extent incurred by or asserted against an Indemnitee as a Sprint Group Member result of any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code; or
(s) To the extent not included in the definition of Supplemental Rent as a result of the reversion provisions of Alterations made by Lessee to Lessor at the end clause (e) of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 such definition. For purposes of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by 9.1, a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of Person shall be considered a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss "related" Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any period occurring after (and not simultaneously with) (1) the expiration such Affiliate or earlier termination a successor or permitted assignee of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseforegoing.
Appears in 4 contracts
Sources: Participation Agreement (Continental Airlines Inc /De/), Participation Agreement (Continental Airlines Inc /De/), Participation Agreement (Continental Airlines Inc /De/)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Stockholder will not be required to make comply with Section 4.3(a) above in connection with any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more proposed Sale of the followingCompany (the “Proposed Sale”), unless:
(i) other than as a result any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (a) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of an Alteration by Lesseeall liens and encumbrances, (b) the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members obligations of the Sprint GroupStockholder in connection with the transaction have been duly authorized, directly or indirectly through one or more entities that if applicable, (c) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are classified as partnerships or disregarded entities for federal income tax purposes, are not enforceable against the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement Stockholder in accordance with its their respective terms, and (d) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;
(ii) such Stockholder shall not be liable for the voluntary saleinaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, assignment, transfer, or other disposition or than the involuntary sale, assignment, transfer, or other disposition attributable Company (except to the bankruptcy, insolvency or the extent that funds may be paid out of an escrow established to cover breach of any covenant or obligation representations, warranties and covenants of the Tax Indemnitee set forth in the Transaction Documents of or Company as well as breach by any such Tax Indemnitee or any of its Affiliates, in either case, stockholder of any of the Leased Property or portion of such Leased Property identical representations, warranties and covenants provided by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreementall stockholders);
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability for indemnification, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property Stockholder in the ordinary course of a trade or business or that Sprint did not enter into Proposed Sale and for the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representationrepresentations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, warranty or covenant by is several and not joint with any Sprint Group Member in any of the Transaction Documents other Person (except to the extent such that funds may be paid out of an escrow established to cover breach or inaccuracy is attributed to a of representations, warranties and covenants of the Company as well as breach or inaccuracy by any stockholder of any representationof identical representations, warranty warranties and covenants provided by all stockholders), and subject to the provisions of the Certificate of Incorporation related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; and
(iv) upon the consummation of the Proposed Sale (i) each holder of each class or covenant series of Lessee the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of a majority of the shares of Common Stock then issued or issuable upon conversion of the shares of Preferred Stock (to include the holders of a majority of the shares of Common Stock then issued or issuable upon conversion of the shares of Series D Convertible Preferred Stock) elect to receive a lesser amount by written notice given to the Company at least ten (10) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Voting Securities or Preferred Stock, as applicable, pursuant to this Section 4.3(b)(iv) includes any securities and due receipt thereof by any Key Holder or holder of Preferred Stock would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or holder of Preferred Stock of any information other than such information as a prudent issuer would generally furnish in an Affiliate offering made solely to “accredited investors” as defined in Regulation D promulgated under the Transaction Documents);
Securities Act, the Company may cause to be paid to any such Key Holder or holder of Preferred Stock in lieu thereof, against surrender of the Key Holder Voting Securities or Preferred Stock, as applicable, which would have otherwise been sold by such Key Holder or holder of Preferred Stock, an amount in cash equal to the fair value (xvi) any exclusion under Section 39(a)(4as determined in good faith by the Company) of any Cross-Defaulted Master Lease and Subleasethe securities which such Key Holder or holder of Preferred Stock would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Voting Securities or Preferred Stock, as applicable.
Appears in 3 contracts
Sources: Stockholders Agreement (Centrexion Therapeutics Corp), Stockholders Agreement (Centrexion Therapeutics Corp), Stockholders Agreement (Centrexion Therapeutics Corp)
Exceptions. Notwithstanding any Any other provision herein to the contrary notwithstanding, pursuant to the terms of this Section 39(a) to the contraryAgreement, Lessee will an Indemnifying Party shall not be required to make any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the followingobligated:
(i) other than as a result of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis to indemnify the Indemnified Party for any acts or (b) respecting an Inclusion omissions or (2) substitution transactions from which a trustee, director, officer or replacement of any Leased Property after a change in agent may not be indemnified by such Indemnifying Party, as provided by Applicable Law;
(ixb) to indemnify or advance Expenses to the failure Indemnified Party with respect to proceedings or claims initiated or brought voluntarily by the Indemnified Party and not by way of the Sprint Groupdefence, except with respect to proceedings brought to establish or any single Sprint Group Memberenforce a right to indemnification under this Agreement, Applicable Law or a policy of insurance referred to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefitsin subsection 7(a) hereof;
(xc) to indemnify the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated Indemnified Party for any Expenses incurred by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss Indemnified Party with respect to any period occurring after (and not simultaneously with) (1) the expiration Proceeding instituted to enforce or earlier termination interpret this Agreement, if a Final Determination is made that any of the Term with respect to a Site material assertions made by the Indemnified Party in such proceedings are not made in good faith or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi)are frivolous;
(xvd) to indemnify the breach Indemnified Party for Expenses or inaccuracy liabilities of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except type whatsoever which have been paid directly to the extent such breach Indemnified Party by an insurance carrier under a policy of trustees’, directors’, managers’, officers’ or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or other applicable liability insurance maintained by an Affiliate under the Transaction Documents)Indemnifying Party;
(xvie) any exclusion under Section 39(a)(4to indemnify the Indemnified Party for Expenses or the payment of profits arising from the purchase and sale by the Indemnified Party of securities in violation of applicable securities laws; or
(f) of any Cross-Defaulted Master Lease and Subleaseto indemnify the Indemnified Party for Expenses for which the Indemnified Party is indemnified by an Indemnifying Party otherwise than pursuant to this Agreement.
Appears in 3 contracts
Sources: Indemnification Agreement (Bumble Bee Capital Corp.), Indemnification Agreement (Bumble Bee Capital Corp.), Indemnification Agreement (Bumble Bee Capital Corp.)
Exceptions. Notwithstanding any Any other provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Section 39(a) to the contrary, Lessee will not be required to make any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the followingAgreement:
(i) other than as 10.1 To indemnify for Losses or advance Expenses to Indemnitee with respect to proceedings or claims initiated or brought voluntarily by Indemnitee and not by way of defense, except with respect to proceedings brought to establish or enforce a result of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply right to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies indemnification under this Agreement;
(iii) , the gross negligence Company’s Certificate of Incorporation or willful misconduct Bylaws or any other statute or law or otherwise as required or permitted under Section 145 of the GCL, but such indemnification of Losses or advancement of Expenses may be provided by the Company in specific cases if the Board of Directors has approved the initiation or bringing of such Tax Indemnitee;suit; or
10.2 To indemnify Indemnitee for any Losses or Expenses incurred by the Indemnitee with respect to any proceeding instituted by Indemnitee to enforce or interpret this Agreement, if a court of competent jurisdiction determines that each of the material assertions made by the Indemnitee in such proceeding was not made in good faith or was frivolous; or
10.3 To indemnify Indemnitee for Expenses or liabilities or Losses of any type whatsoever (iv) including, but not limited to, judgments, fines, ERISA excise taxes or penalties, interestand amounts paid in settlement) which have been paid directly to Indemnitee by an insurance carrier under a policy of officers’ and directors’ liability insurance maintained by the Company; or
10.4 To indemnify Indemnitee for Expenses and the payment of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or additions any similar successor statute; or
10.5 To indemnify Indemnitee for any act, omission or transaction listed in the exceptions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise waiver of the purchase option provided in Section 36 personal liability of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures director set forth in Section 39(d102(b)(7) of this Agreement);the GCL; or
(viii) 10.6 To indemnify Indemnitee for Losses or advance Expenses for Indemnitee’s reimbursement to the Company of any change in Law enacted, adopted bonus or promulgated on other incentive-based or after equity-based compensation previously received by Indemnitee or payment of any profits realized by Indemnitee from the date sale of securities of the Agreement to Lease and SubleaseCompany, provided that this exclusion shall not apply to as required in each case under the Exchange Act (including any such reimbursements under Section 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (1the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) change in tax rates applicable connection with an accounting restatement of the Company or the payment to the making Company of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis profits arising from the purchase or (b) respecting an Inclusion or (2) substitution or replacement sale by Indemnitee of any Leased Property after a change securities in Law;
(ix) the failure violation of Section 306 of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Sublease.
Appears in 3 contracts
Sources: Employment Agreement (Newpark Resources Inc), Employment Agreement (Newpark Resources Inc), Indemnification Agreement (Newpark Resources Inc)
Exceptions. Notwithstanding any provision of this Section 39(a) anything to the contrarycontrary herein, Lessee the indemnity provided for in Section 1.01 will not be required to make any payment extend to any Tax Indemnitee in respect Claim of any Tax Loss Indemnitee to the extent that any such Tax Loss occurs as a result of one or more of the followingit:
(ia) other than as a result of an Alteration by Lessee, is attributable to acts or events occurring after the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members redelivery of the Sprint GroupAircraft to Lessor, directly except to the extent fairly attributable to acts or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termsevents occurring prior thereto;
(iib) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition is directly attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, Indemnitee or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant of such Indemnitee in the Lease or in any other Operative Document;
(c) other than as expressly provided in Section 1.04 of this Exhibit H, is a Tax or loss of a Tax benefit, whether or not the Lessee is required to indemnify therefor pursuant to Article XIV hereof or pursuant to the Tax Indemnity Agreement;
(d) is a cost or expense expressly required to be paid by such Indemnitee or its permitted transferees (and not by the Lessee) pursuant to the Lease or any Sprint Group Member other Operative Document and for which the Lessee is not otherwise obligated to reimburse such Indemnitee, directly or indirectly pursuant to the terms of the Lease or such other Operative Document;
(e) is, in the case of the Beneficiary, Lessor's Liens attributable to the Beneficiary; in the case of the Owner Trustee, Lessor's Liens to the extent attributable to the Owner Trustee; in the case of WFB, Lessor's Liens to the extent attributable to WFB; in the case of a Financing Party, Lessor's Liens to the extent attributable to such Financing Party;
(f) is, in the case of the Beneficiary or the Owner Trustee, attributable to the sale by such Indemnitee of any interest in the Aircraft, the Beneficial Interest or any similar interest (including a sale resulting from bankruptcy or other proceedings for the relief of debtors in which such Indemnitee is the debtor and which is not caused by the Default of the Lessee), unless in each case such sale shall occur pursuant to the exercise of remedies under Section 17.02 hereof or following the occurrence of an Event of Default;
(g) in the case of the Beneficiary, is a Claim relating to, resulting from, arising out of or in connection with a "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code resulting from the direct or indirect use of assets of any ERISA Plan to acquire or hold Beneficiary's interest in the Trust Estate or in the case of any transferee of the Beneficiary referred to in Section 10(b)(v) of the Purchase Agreement, to purchase the Beneficial Interest pursuant to Section 10(b)(v) of the Purchase Agreement;
(h) except during the continuation of an Event of Default, is attributable to any amendment to any of the Transaction Operative Documents which is not requested, or consented to, by the Lessee or is not required or made pursuant to the terms of any of the Operative Documents;
(except i) constitutes the loss of future profits of such Indemnitee or losses attributable to such Indemnitee's overhead; or
(j) arises from or is attributable to the like-kind exchange transaction described in Section 10(b)(vi) of the Purchase Agreement to the extent such breach or inaccuracy is attributed to a breach or inaccuracy Claim exceeds the amount of any representation, warranty or covenant Claim that would have been imposed in the absence of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Crosssuch like-Defaulted Master Lease and Subleasekind exchange transaction.
Appears in 3 contracts
Sources: Aircraft Purchase Agreement (Republic Airways Holdings Inc), Aircraft Purchase Agreement (Republic Airways Holdings Inc), Aircraft Purchase Agreement (Republic Airways Holdings Inc)
Exceptions. Notwithstanding any provision The obligations of this confidentiality, non-disclosure, and non-use set forth in Section 39(a14.1 (Generally) to the contrary, Lessee will not be required to make any payment to any Tax Indemnitee in respect of any Tax Loss apply to the extent the receiving Party (the “Recipient”) can demonstrate that any such Tax Loss occurs as a result the disclosed information (a) was in the public domain at the time of one disclosure to the Recipient by the other Party, or more of thereafter entered the following:
(i) public domain, in each case, other than as a result of actions of the Recipient, its Affiliates, employees, licensees, agents, or subcontractors, in breach of this Agreement; (b) was rightfully known by the Recipient or its Affiliates (as shown by its written records) prior to the date of disclosure to the Recipient by the other Party; (c) was received by the Recipient or its Affiliates on an Alteration unrestricted basis from a Third Party rightfully in possession of such information and not under a duty of confidentiality to the other Party; or (d) was independently developed by Lesseeor for the Recipient or its Affiliates without reference to or reliance on the Confidential Information of the other Party (as demonstrated by written records). Notwithstanding any other provision of this Agreement, the entry into Recipient’s disclosure of Confidential Information will not be prohibited if such disclosure: (i) is in response to a New Lease under Section 40 valid order of this Agreement a court or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes other Governmental Authority; or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) is otherwise required by Applicable Law or regulation or rules of a nationally recognized securities exchange. Further notwithstanding any other provision of this Agreement, Akebia may disclose Licensee’s Confidential Information to the voluntary saleextent disclosure is required in connection with the filing or prosecuting patent applications, assignment, transferprosecuting, or other disposition or the involuntary saledefending litigation, assignment, transferresponding to an investigation by a Governmental Authority, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its establishing rights or performance of its enforcing obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss Regulatory Filings with respect to any period occurring after (and not simultaneously with) (1) the expiration Licensed Products, or earlier termination of the Term conducting research, development, or clinical studies with respect to the Licensed Products. If a Site Recipient is required to disclose Confidential Information pursuant to this Section 14.2 (Exceptions), then prior to any disclosure the Recipient will provide the other Party with prior written notice of such disclosure in order to permit the other Party to seek a protective order or (2) the return to Sprint other confidential treatment of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseConfidential Information.
Appears in 3 contracts
Sources: License Agreement (Akebia Therapeutics, Inc.), License Agreement (Akebia Therapeutics, Inc.), License Agreement (Akebia Therapeutics, Inc.)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Stockholder will not be required to make comply with Subsection 3.2 above in connection with any payment proposed Sale of the Company (the “Proposed Sale”) unless:
(a) any representations and warranties to any Tax Indemnitee be made by such Stockholder in respect connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any Tax Loss agreement, law or judgment, order or decree of any court or governmental agency;
(b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that any such Tax Loss occurs as a result funds may be paid out of one or more an escrow established to cover breach of representations, warranties and covenants of the following:
(i) other than Company as a result well as breach by any stockholder of an Alteration any of identical representations, warranties and covenants provided by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termsall stockholders);
(iic) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability for indemnification, if any, required of it such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by Section 39(d) the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of this Agreement an escrow established to contest cover breach of representations, warranties and covenants of the Loss Company as well as breach by any stockholder of any of identical representations, warranties and such failure materially prejudices the ability to contestcovenants provided by all stockholders), and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part subject to the failure provisions of Lessee the Restated Certificate related to follow the procedures set forth allocation of the escrow, is pro rata in Section 39(d) proportion to, and does not exceed, the amount of this Agreement)consideration paid to such Stockholder in connection with such Proposed Sale, except in the case of liability for fraud or willful misconduct by such Stockholder;
(viiid) upon the consummation of the Proposed Sale, subject to Subsection 3.2(f) above, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock (if any change is authorized and outstanding) will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in Law enactedrespect of their shares of such same series (except for cash payments in lieu of fractional shares), adopted and (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock (except for cash payments in lieu of fractional shares), and (iv) unless the holders of at least a majority of the shares of Preferred Stock then outstanding, voting collectively as a single class on an as-converted basis, elect to receive a lesser amount by written notice given to the Company at least two (2) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Restated Certificate in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Shares or Rights Holder Shares, as applicable, pursuant to this Subsection 3.3(d) includes any securities and due receipt thereof by any Key Holder or Rights Holder would require under applicable law (x) the registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities or (y) the provision to any Key Holder or Rights Holder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated on under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Key Holder or after Rights Holder in lieu thereof, against surrender of the Key Holder Shares or Rights Holder Shares, as applicable, which would have otherwise been sold by such Key Holder or Rights Holder, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Key Holder or Rights Holder would otherwise receive as of the date of the Agreement issuance of such securities in exchange for the Key Holder Shares or Rights Holder Shares, as applicable; and
(e) subject to Lease and Subleaseclause (d) above, provided that this exclusion shall not apply requiring the same form of consideration to any (1) change in tax rates applicable be available to the making holders of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis single class or (b) respecting an Inclusion or (2) substitution or replacement series of capital stock, if any holders of any Leased Property after a change in Law;
(ix) the failure capital stock of the Sprint Group, or any single Sprint Group Member, Company are given an option as to have sufficient income or Tax liability the form and amount of consideration to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee such capital stock will be given the same option; provided, however, that nothing in this Subsection 3.3(e) shall entitle any holder to Lessor at the end receive any form of the Term;
(xi) consideration that such holder would be ineligible to receive as a determination result of such holder’s failure to satisfy any condition, requirement or limitation that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply generally applicable to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseCompany’s stockholders.
Appears in 3 contracts
Sources: Voting Agreement (Denim LA, Inc.), Voting Agreement (Denim LA, Inc.), Voting Agreement (Denim LA, Inc.)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Stockholder will not be required to make comply with Section 3.2 above in connection with any payment proposed Sale of the Company (the “Proposed Sale”) unless:
(a) any representations and warranties to any Tax Indemnitee be made by such Stockholder in respect connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any Tax Loss agreement, law or judgment, order or decree of any court or governmental agency;
(b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (and in such event only to the extent that any such Tax Loss occurs as a result funds may be paid out of one or more an escrow established to cover breach of representations, warranties and covenants of the following:
Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders (i) other than as a result of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms“Escrow”));
(iic) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability, if any, required of it such Stockholder in connection with the Proposed Sale and for the inaccuracy of any representations and warranties made by Section 39(d) the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of this Agreement to contest the Loss and such failure materially prejudices the ability to contestEscrow), and Lessee has a reasonable basis for such contest (other than a failure attributable is pro rata in whole or part proportion to the failure amount of Lessee consideration paid to follow such Stockholder in connection with such Proposed Sale (in accordance with the procedures set forth in Section 39(d) provisions of this Agreementthe Restated Charter);
(viiid) any change liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in Law enacted, adopted or promulgated on or after connection with such Proposed Sale in accordance with the date provisions of the Agreement Restated Charter) that is contributed to Lease and Subleasea negotiated Escrow but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, provided that this exclusion shall except with respect to claims related to fraud by such Stockholder, the liability for which need not apply be limited as to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Lawsuch Stockholder;
(ixe) upon the failure consummation of the Sprint GroupProposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a share of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such series of Preferred Stock, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of at least a majority of the shares of Preferred Stock, voting together as a single class on an as-converted basis, and the holders of at least a majority of the Series F Preferred Stock, voting as a separate class, elect otherwise by written notice given to the Company at least fifteen (15) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Restated Charter in effect immediately prior to the Proposed Sale; and
(f) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single Sprint Group Memberclass or series of capital stock, if any holders of any capital stock of the Company are given an option as to have sufficient income or Tax liability the form and amount of consideration to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee to Lessor at such capital stock will be given the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleasesame option.
Appears in 3 contracts
Sources: Voting Agreement (Yext, Inc.), Voting Agreement (Yext, Inc.), Voting Agreement (Yext, Inc.)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Member will not be required to make comply with Section 6.1 above in connection with any payment proposed Sale of the Company (the “Proposed Sale”) unless:
(a) any representations and warranties to any Tax Indemnitee be made by such Member in respect connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Units, including but not limited to representations and warranties that (i) such Member holds all right, title and interest in and to the Units such Member purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of such Member in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by such Member have been duly executed by such Member and delivered to the acquirer and are enforceable against such Member in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of such Member’s obligations thereunder, will cause a breach or violation of the terms of any Tax Loss agreement, law or judgment, order or decree of any court or governmental agency;
(b) such Member shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that any such Tax Loss occurs as a result funds may be paid out of one or more an escrow established to cover breach of representations, warranties and covenants of the following:
(i) other than Company as a result well as breach by any Member of an Alteration any of identical representations, warranties and covenants provided by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termsall Members);
(iic) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability for indemnification, if any, required of it by Section 39(d) of this Agreement to contest such Member in the Loss Proposed Sale and such failure materially prejudices for the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making inaccuracy of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations representations and warranties made by Lessee to Lessor at the end of the Term;
Company or its Members in connection with such Proposed Sale, is several and not joint with any other Person (xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions except to the extent that funds may be paid out of a resulting increase an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Member of any of identical representations, warranties and covenants provided by all Members), and is pro rata in proportion to, and does not exceed, the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss amount of consideration paid to such Member in connection with such Proposed Sale, except with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property claims related to a Site, in either case other than interest, fines, penalties fraud and additions any claim related to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy by such Member of any representation, warranty or covenant made by any Sprint Group such Member in any with respect to itself, the liability for which need not be limited; and
(d) upon the consummation of the Transaction Documents Proposed Sale, (except i) each holder of each class or series of Units will receive the same form of consideration for their Units of such class or series as is received by other holders in respect of their Units of such same class or series, (ii) each holder of Series A Preferred Units will receive the same amount of consideration per Series A Preferred Unit as is received by other holders in respect of their Series A Preferred Units, (iii) each holder of Series B Preferred Units will receive the same amount of consideration per Series B Preferred Unit as is received by other holders in respect of their Series B Preferred Units, (iv) each holder of Common Units will receive the same amount of consideration per Common Unit as is received by other holders in respect of their Common Units, and, unless the holders of a majority of the Preferred Units elect to receive a lesser amount by written notice given to the extent such breach or inaccuracy is attributed Company at least five (5) days prior to a breach or inaccuracy the effective date of any representationsuch Proposed Sale, warranty or covenant the aggregate consideration receivable by all holders of Lessee or an Affiliate under the Transaction Documents);Preferred Units and Common Units shall be allocated among them on the basis to which the holders of Preferred Units and the holders of Common Units are entitled in a Sale of the Company in accordance with this Agreement as in effect immediately prior to the Proposed Sale.
(xvie) any exclusion under Section 39(a)(4Subject to clause (d) requiring the same form of consideration to be available to the holders of any Cross-Defaulted Master Lease single class or series of Units, if any holders of any class or series of Units are given an option as to the form and Subleaseamount of consideration to be received as a result of the Proposed Sale, all holders of such class or series of Units will be given the same option; provided, however, that nothing in this Section 6.2(e) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive (including, without limitation, under applicable securities laws) or as a result of such holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Members.
Appears in 3 contracts
Sources: Operating Agreement, Operating Agreement (Rhythm Holding Company, LLC), Operating Agreement (Rhythm Holding Company, LLC)
Exceptions. Notwithstanding any provision of this Section 39(a34(a) to the contrarycontrary (other than with respect to the loss of Tax Savings for which an AT&T Group Member has reimbursed or credited Tower Operator under Section 34(c), Lessee will in which case only the exceptions listed in clauses (C), (F) and (G) shall apply), Tower Operator shall not be required to make any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the following:
(iA) other Other than as a result of an Alteration by Lessee, the entry into a New Lease under event or circumstance described in Section 40 of this Agreement or any severance of this Agreement under Section 4134(a)(iii), the determination that this Agreement is not a "“true lease" ” for federal income tax Tax purposes or that the members of the Sprint AT&T Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Included Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(iiB) the The voluntary sale, assignment, transfer, transfer or other disposition or the involuntary sale, assignment, transfer, transfer or other disposition attributable to the bankruptcy, insolvency a Bankruptcy Event or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Included Property or portion of such Leased Included Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, transfer or disposition (A1) contemplated by the Transaction DocumentsDocuments or to or at the request of Tower Operator; (B2) otherwise resulting from the exercise by any Sprint AT&T Group Member of its rights or performance of its obligations under the Transaction Documents; or (C3) attributable to in connection with a default by Lessee and/or Tower Operator or exercise of remedies under this Agreement;
(iiiC) the The gross negligence or willful misconduct of such Tax Indemnitee;
(ivD) penaltiesPenalties, interest, interest or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(vE) Lessee's Tower Operator’s exercise of the purchase option Purchase Option provided in Section 36 of this Agreement20;
(viF) the The failure by the Sprint AT&T Group or any Sprint AT&T Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement34(a)(iii);
(viiG) any Any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d34(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has Tower Operator had a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement)contest;
(viiiH) any Any change in Law the Code enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, Master Agreement; provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Included Property after a change in Law;
(ixI) the The failure of the Sprint AT&T Group, or any single Sprint AT&T Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax BenefitsBenefits (it being understood that except as provided herein, this exclusion shall not affect the amount of any indemnity to which an Indemnitee would otherwise be entitled);
(xJ) the The inclusion of income by a Sprint an AT&T Group Member as a result of the reversion of Alterations Modifications made by Lessee Tower Operator to any AT&T Lessor at the end of the Term;
(xiK) Other than as a result of an event or circumstance described in Section 34(a)(iii), a determination that Sprint AT&T is not holding the Leased Included Property in the ordinary course of a trade or business or that Sprint AT&T did not enter into the transactions contemplated by the Transaction Documents for profit;
(xiiL) the The existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, ; provided that the Lessee Tower Operator makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H D and provided further provided, further, that this exclusion will shall not apply to the entry into a New Lease under Section 40 of this Agreement 21 following the default or any severance of this Agreement under Section 41breach by Tower Operator;
(xiiiM) any tax Any Tax election or Tax Position by a Sprint an AT&T Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's Tower Operator’s indemnity obligations hereunder;
(xivN) a A Tax Loss with respect to any period occurring (1) before the Term with respect to a Site, (2) after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (23) after (and not simultaneously with) the return to Sprint AT&T of the Leased Included Property related to a Site, in either each case other than interest, fines, penalties and additions to tax Tax resulting from a Tax Loss that would not be excluded under this clause (xviN);; and
(xvO) the The breach or inaccuracy of any representation, warranty or covenant by any Sprint AT&T Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee Tower Operator or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Sublease.
Appears in 3 contracts
Sources: Master Prepaid Lease (Crown Castle International Corp), Master Prepaid Lease (At&t Inc.), Master Prepaid Lease (Crown Castle International Corp)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Stockholder will not be required to make comply with Section 3.2 above in connection with any payment proposed Sale of the Company (the “Proposed Sale”) unless:
(a) any representations and warranties to any Tax Indemnitee be made by such Stockholder in respect connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any Tax Loss agreement, law or judgment, order or decree of any court or governmental agency;
(b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other person in connection with the Proposed Sale, other than the Company (except to the extent that any such Tax Loss occurs as a result funds may be paid out of one or more an escrow established to cover breach of representations, warranties and covenants of the following:
(i) other than Company as a result well as breach by any stockholder of an Alteration any of identical representations, warranties and covenants provided by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termsall stockholders);
(iic) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability for indemnification, if any, required of it such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by Section 39(d) the Company in connection with such Proposed Sale, is several and not joint with any other person or entity (except to the extent that funds may be paid out of this Agreement an escrow established to contest cover breach of representations, warranties and covenants of the Loss Company as well as breach by any stockholder of any of identical representations, warranties and such failure materially prejudices the ability to contestcovenants provided by all stockholders), and Lessee has a reasonable basis for such contest (other than a failure attributable is pro rata in whole or part proportion to the failure amount of Lessee consideration paid to follow such Stockholder in connection with such Proposed Sale (in accordance with the procedures set forth in Section 39(d) provisions of this Agreementthe Company Charter);
(viiid) any change liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in Law enacted, adopted or promulgated on or after connection with such Proposed Sale in accordance with the date provisions of the Agreement Company Charter) of a negotiated aggregate indemnification amount that applies equally to Lease and Subleaseall Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, provided that this exclusion shall except with respect to claims related to fraud by such Stockholder, the liability for which need not apply be limited as to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Lawsuch Stockholder;
(ixe) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Series BRN Preferred Stock will receive the same amount of consideration per share of such series as is received by other holders in respect of their shares of such same series, (iv) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (v) the failure aggregate consideration receivable by all holders of the Sprint GroupPreferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a liquidation, dissolution or winding up of the affairs of the Company (assuming for this purpose that the Proposed Sale is a liquidation, dissolution or winding up of the affairs of the Company) in accordance with the Company Charter in effect immediately prior to the Proposed Sale; and
(f) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single Sprint Group Memberclass or series of capital stock, and if any holders of any capital stock of the Company are given an option as to have sufficient income or Tax liability the form and amount of consideration to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee to Lessor at such capital stock will be given the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleasesame option.
Appears in 3 contracts
Sources: Voting Agreement, Voting Agreement (BIND Therapeutics, Inc), Voting Agreement (BIND Therapeutics, Inc)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Stockholder will not be required to make comply with Subsection 2.1 above in connection with any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more proposed Sale of the followingCompany (the “Proposed Sale”) unless:
(a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) other than as a result the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of an Alteration by Lesseeall liens and encumbrances, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation obligations of the Tax Indemnitee set forth Stockholder in connection with the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliatestransaction have been duly authorized, in either caseif applicable, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or willful misconduct violation of such Tax Indemniteethe terms of any agreement, law or judgment, order or decree of any court or governmental agency;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vib) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion Stockholder shall not apply to any (1) change in tax rates applicable to be liable for the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, representation or warranty or covenant made by any Sprint Group Member other Person in any of connection with the Transaction Documents Proposed Sale, other than the Company (except to the extent such that funds may be paid out of an escrow established to cover breach or inaccuracy is attributed to a of representations, warranties and covenants of the Company as well as breach or inaccuracy by any stockholder of any representationof identical representations, warranty or covenant of Lessee or an Affiliate under the Transaction Documentswarranties and covenants provided by all stockholders);
(xvic) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any exclusion representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; and
(d) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, and (ii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Stockholder Shares pursuant to this Subsection 2.3(d) includes any securities and due receipt thereof by any Stockholder would require under Section 39(a)(4applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Stockholder Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Company) of any Cross-Defaulted Master Lease and Subleasethe securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Stockholder Shares.
Appears in 3 contracts
Sources: Voting Agreement, Voting Agreement (Cesca Therapeutics Inc.), Voting Agreement (Cesca Therapeutics Inc.)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Stockholder will not be required to make comply with Subsection 3.2 above in connection with any payment proposed Sale of the Company (the “Proposed Sale”), unless:
(a) any representations and warranties to any Tax Indemnitee be made by such Stockholder in respect connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any Tax Loss agreement, law or judgment, order or decree of any court or governmental agency;
(b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that any such Tax Loss occurs as a result funds may be paid out of one or more an escrow established to cover breach of representations, warranties and covenants of the following:
(i) other than Company as a result well as breach by any stockholder of an Alteration any of identical representations, warranties and covenants provided by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termsall stockholders);
(iic) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability for indemnification, if any, required of it such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by Section 39(d) the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of this Agreement an escrow established to contest cover breach of representations, warranties and covenants of the Loss Company as well as breach by any stockholder of any of identical representations, warranties and such failure materially prejudices the ability to contestcovenants provided by all stockholders), and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part subject to the failure provisions of Lessee the Restated Certificate related to follow the procedures set forth allocation of the escrow, is pro rata in Section 39(d) proportion to, and does not exceed, the amount of this Agreement)consideration paid to such Stockholder in connection with such Proposed Sale;
(viiid) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;
(e) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of a majority of the then outstanding shares of Preferred Stock elect to receive a lesser amount by written notice given to the Company at least ten days prior to the effective date of any change such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in Law enacteda Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, adopted however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(e) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated on under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Key Holder or after Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Key Holder or Investor would otherwise receive as of the date of the Agreement issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; and
(f) subject to Lease and Subleaseclause (e) above, provided that this exclusion shall not apply requiring the same form of consideration to any (1) change in tax rates applicable be available to the making holders of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis single class or (b) respecting an Inclusion or (2) substitution or replacement series of capital stock, if any holders of any Leased Property after a change in Law;
(ix) the failure capital stock of the Sprint Group, or any single Sprint Group Member, Company are given an option as to have sufficient income or Tax liability the form and amount of consideration to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee such capital stock will be given the same option; provided, however, that nothing in this Subsection 3.3(f) shall entitle any holder to Lessor at the end receive any form of the Term;
(xi) consideration that such holder would be ineligible to receive as a determination result of such holder’s failure to satisfy any condition, requirement or limitation that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply generally applicable to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseCompany’s stockholders.
Appears in 3 contracts
Sources: Voting Agreement (Winc, Inc.), Voting Agreement (Winc, Inc.), Voting Agreement (Winc, Inc.)
Exceptions. Notwithstanding any provision BNPPLC acknowledges and agrees that nothing in Paragraph 4 or the preceding subparagraphs of this Section 39(a) Paragraph 5 will be construed to the contrary, Lessee will not be required require NAI to make pay or reimburse: • Excluded Taxes; or • Losses incurred or suffered by any payment to any Tax Indemnitee in respect of any Tax Loss Interested Party to the extent proximately caused by (and attributed by any applicable principles of comparative fault to) the Established Misconduct of that Interested Party; or • Losses that result from any such Tax Loss occurs as a result of one Liens Removable by BNPPLC; or more • transaction expenses (including Attorneys’ Fees) incurred by any of the following:
(i) other than as a result of an Alteration by LesseeParticipants in connection with the drafting, the entry into a New Lease under Section 40 of this Agreement negotiation or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members execution of the Sprint GroupParticipation Agreement (or supplements making them parties thereto) or in connection with any due diligence Participants may undertake before entering into the Participation Agreement; or • Local Impositions or other Losses contested, directly or indirectly through one or more entities that if and so long as they are classified as partnerships or disregarded entities for federal income tax purposescontested, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement by NAI in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property provisions of this Lease or portion of other Operative Documents which expressly authorize such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documentscontests; or • transaction expenses or other Losses caused by or necessary to accomplish any conveyance by BNPPLC to BNPPLC’s Parent or a Qualified Affiliate which constitutes a Permitted Transfer only by reason of clause (C3) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option definition of Permitted Transfer in the Common Definitions and Provisions Agreement; or • any amount which may from time to time be payable by BNPPLC to any Participant representing the excess of “Base Rent” as defined in the Participation Agreement over Base Rent as defined in and calculated pursuant to this Lease and the Common Definitions and Provisions Agreement; or • any decline in the value of the Property solely by reason of decline in general market conditions and not because of any breach of this Lease or other Operative Documents by NAI. Further, without limiting BNPPLC’s rights (as provided in Section 36 other provisions of this Agreement;
Lease and other Operative Documents) to include the following in the calculation of the Lease Balance, the Break Even Price and the Make Whole Amount (vias applicable) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on collect Base Rent, a Supplemental Payment and other amounts, the appropriate Tax return other than calculation of which depends upon the Lease Balance, BNPPLC acknowledges and agrees that nothing in accordance with Section 39(a)(3) Paragraph 4 or the preceding subparagraphs of this Agreement;
(vii) any failure Paragraph 5 will be construed to require NAI to pay or reimburse an Interested Party for costs paid by BNPPLC with the proceeds of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or Initial Advance as part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach Expenses or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleasewith Construction Advances.
Appears in 3 contracts
Sources: Lease Agreement (NetApp, Inc.), Lease Agreement (NetApp, Inc.), Lease Agreement (NetApp, Inc.)
Exceptions. Notwithstanding any provision of this The indemnity provided for in Section 39(a7.01(a) to the contrary, Lessee will shall not be required to make any payment extend to any Tax Indemnitee in respect Expense of any Tax Loss Indemnitee to the extent that any such Tax Loss occurs as a result of one or more of the followingit:
(i) is attributable to the willful misconduct or gross negligence of such Indemnitee (other than as a result gross negligence or willful misconduct imputed to such person by reason of an Alteration by Lessee, its interest in the entry into a New Lease under Section 40 of this Agreement Aircraft or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termstransaction documents);
(ii) except to the voluntary saleextent fairly attributable to acts or events occurring prior thereto, assignmentis attributable to acts or events (other than the performance by Lessee of its obligations pursuant to the terms of the Operative Agreements) which occur after the Aircraft is no longer part of the Lessor's Estate or, transferif the Aircraft remains a part of the Lessor's Estate, after the expiration of the Term (unless the Aircraft is being returned at such time, in which case after return of physical possession; PROVIDED that if the Lease has been terminated pursuant to Section 17 thereof, the indemnity provided in Section 7.01(a) hereof shall survive for so long as Lessor shall be exercising remedies under such Section 17), or other disposition to acts or events which occur after return of possession of the involuntary sale, assignment, transfer, or other disposition attributable Aircraft by the Lessee in accordance with the provisions of the Lease (subject to the bankruptcy, insolvency foregoing proviso if the Lessor has terminated the Lease pursuant to Section 17 of the Lease); PROVIDED that nothing in this clause (ii) shall be deemed to exclude or the limit any claim that any Indemnitee may have under Applicable Law by reason of an Event of Default or for damages from Lessee for breach of any covenant or obligation of the Tax Indemnitee set forth Lessee's covenants contained in the Transaction Lessee Documents of or by to release Lessee from any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise Documents that expressly provide for performance after termination of remedies under this Agreementthe Term;
(iii) other than as expressly provided herein or in the gross negligence other Operative Agreements, is a Tax or willful misconduct loss of such a Tax Indemniteebenefit, whether or not the Lessee is required to indemnify therefor pursuant to Article 6 hereof or pursuant to the Tax Indemnity Agreement;
(iv) penaltiesis a cost or expense expressly required to be paid by such Indemnitee or its permitted transferees (and not by the Lessee) pursuant to this Agreement or any other Operative Agreement and for which the Lessee is not otherwise obligated to reimburse such Indemnitee, interest, directly or additions to Tax indirectly pursuant to the extent based upon issues unrelated to the transactions contemplated by terms of this Agreement and related documentsor such other Operative Agreement;
(v) Lessee's exercise is attributable to the incorrectness or breach by such Indemnitee of its representations or warranties, under any of the purchase option provided in Section 36 Operative Agreements except to the extent such incorrectness or breach was caused by a breach by Lessee of this any representation or warranty or by any failure of Lessee to perform any obligation under an Operative Agreement;
(vi) is attributable to the failure by such Indemnitee to perform any of its obligations under any of the Sprint Group Operative Agreements except to the extent such failure was caused by a breach by Lessee of any representation or warranty or by any Sprint Group Member timely or properly failure of Lessee to claim perform any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this obligation under an Operative Agreement;
(vii) any failure is, in the case of the Tax Indemnitee to have taken all the actionsOwner Participant, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure Lessor's Liens attributable in whole or part to the failure Owner Participant; in the case of Lessee the Owner Trustee, Lessor's Liens to follow the procedures set forth extent attributable to the Owner Trustee; in Section 39(d) the case of this Agreement)Trust Company, Lessor's Liens to the extent attributable to Trust Company;
(viii) any change is, in Law enacted, adopted or promulgated on or after the date case of the Agreement to Lease and SubleaseOwner Participant or the Owner Trustee, provided that this exclusion shall not apply to any (1) change in tax rates applicable attributable to the making offer or sale by such Indemnitee of any indemnity payment interest in the Aircraft, the Lessor's Estate or the Trust Agreement or any similar interest (including an offer or sale resulting from bankruptcy or other proceedings for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis the relief of debtors in which such Indemnitee is the debtor), unless in each case such offer or (b) respecting an Inclusion or (2) substitution or replacement sale shall occur pursuant to the exercise of any Leased Property after a change in Lawremedies under Section 17 of the Lease;
(ix) in the failure case of the Sprint GroupOwner Participant, is an Expense relating to, resulting from, arising out of or in connection with a "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code resulting from the direct or indirect use of assets of any single Sprint Group MemberERISA Plan to acquire or hold Owner Participant's interest in the Trust Estate or in the case of any transferee of the Owner Participant referred to in Section 5.01(c), to have sufficient income or Tax liability purchase the Beneficial Interest pursuant to benefit from the Federal Income Tax BenefitsSection 5.01(c);
(x) except during the inclusion continuation of income by a Sprint Group Member as a result an Event of Default, is attributable to any amendment to any of the reversion Operative Agreements which is not requested, or consented to, by the Lessee or is not required or made pursuant to the terms of Alterations made by Lessee to Lessor at the end any of the TermOperative Agreements;
(xi) a determination that Sprint is not holding attributable to the Leased Property in exercise by any Indemnitee of any right to inspect the ordinary course Aircraft except with respect to any such inspection conducted while an Event of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;Default is continuing; and
(xii) constitutes the existence of, loss of future profits of such Indemnitee or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply losses attributable to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lesseesuch Indemnitee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseoverhead.
Appears in 3 contracts
Sources: Participation Agreement (Republic Airways Holdings Inc), Participation Agreement (Republic Airways Holdings Inc), Participation Agreement (Republic Airways Holdings Inc)
Exceptions. Notwithstanding any Any other provision herein to the contrary notwithstanding, the Corporation shall not be obligated pursuant to the terms of this Agreement:
9.1 To indemnify or advance expenses to Indemnitee with respect to proceedings or claims initiated or brought voluntarily by Indemnitee and not by way of defense, except with respect to proceedings brought to establish or enforce a right to indemnification under this Agreement, the Certificate of Incorporation, the Bylaws or any statute or law or otherwise as required under Section 39(a) to 145 of the contraryDGCL, Lessee will not but such indemnification or advancement of expenses may be required to make provided by the Corporation in specific cases if the Board of Directors has approved the initiation or bringing of such suit; or
9.2 To indemnify Indemnitee for any payment expenses incurred by the Indemnitee with respect to any Tax proceeding instituted by Indemnitee to enforce or interpret this Agreement, if a court of competent jurisdiction determines that each of the material assertions made by the Indemnitee in respect such proceeding was not made in good faith or was frivolous; or
9.3 To indemnify Indemnitee for expenses or liabilities of any Tax Loss type whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement), as and to the extent that any such Tax Loss occurs as a result of one Indemnitee otherwise has actually received payment (under an insurance policy, by law or more otherwise) of the following:amounts otherwise indemnifiable hereunder; or
(i9.4 To indemnify Indemnitee for expenses and the payment of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) other than of the Securities Exchange Act of 1934, as a result of an Alteration by Lesseeamended, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41similar successor statute; or
9.5 To indemnify Indemnitee for any act, the determination that this Agreement is not a "true lease" for federal income tax purposes omission or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth transaction listed in the Transaction Documents exceptions to waiver of or by any such Tax Indemnitee or any personal liability of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures director set forth in Section 39(d102(b)(7) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseDGCL.
Appears in 3 contracts
Sources: Indemnification Agreement (Gelesis Inc), Indemnification Agreement (Lamar Advertising Co/New), Indemnification Agreement (Lamar Advertising REIT Co)
Exceptions. Notwithstanding any other provision in this Agreement, the Company shall not be obligated pursuant to the terms of this Agreement, to:
(a) indemnify or advance Expenses to Indemnitee with respect to any Proceeding initiated, brought or made by Indemnitee, including by way of cross-claim, counter claim or the like, except with respect to a Proceeding brought to establish or enforce a right to indemnification, unless Proceeding was authorized or consented to by the Board of Directors;
(b) indemnify Indemnitee with respect to any Proceeding in which final judgment is rendered against Indemnitee for an accounting of profits made from the purchase and sale or the sale and purchase by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Act; or
(c) indemnify Indemnitee for any expenses incurred by Indemnitee with respect to any Proceeding instituted by Indemnitee to enforce or interpret this Agreement, unless Indemnitee is successful in establishing Indemnitee’s right to indemnification in such Proceeding, in whole or in part, or unless and to the extent that the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his right to indemnification, Indemnitee is entitled to indemnity for such expenses; provided, however that nothing in this Section 18(c) is intended to limit the Company’s obligation with respect to the advancement of expenses to Indemnitee in connection with any Proceeding instituted by Indemnitee to enforce or interpret this Agreement, as provided in Section 7 of this Agreement. Notwithstanding any other provision of this Section 39(a) Agreement to the contrary, Lessee will not be required to make any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the following:
(i) other than as a result of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) reimbursements hereunder that are taxable as compensation to an Indemnitee, the expiration or earlier termination amount of the Term with respect Expenses that are eligible for reimbursement during one calendar year may not affect the amount of reimbursements to a Site be provided in any subsequent calendar year, the reimbursement of an eligible expense shall be made on or (2) before the return to Sprint last day of the Leased Property related calendar year following the calendar year in which the expense was incurred, and the right to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would reimbursement of the expenses shall not be excluded under this clause (xvi);
(xv) the breach subject to liquidation or inaccuracy of exchange for any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseother benefit.
Appears in 2 contracts
Sources: Indemnification Agreement (Bonanza Creek Energy, Inc.), Indemnification Agreement (Bonanza Creek Energy, Inc.)
Exceptions. Notwithstanding (a) Excluded Action or Omissions To indemnify, exonerate or hold harmless Indemnitee for Expenses resulting from acts, omissions or transactions for which Indemnitee is prohibited from receiving indemnification, exoneration or hold harmless rights under this Agreement or applicable law; provided, however, that notwithstanding any provision of limitation set forth in this Section 39(a7(a) regarding the Company’s obligation to provide indemnification, exoneration or hold harmless rights to Indemnitee shall be entitled under Section 2(b) to the contrary, Lessee will not be required to make any payment receive Expense Advances hereunder with respect to any Tax such Claim unless and until a court having jurisdiction over the Claim shall have made a final judicial determination (as to which all rights of appeal therefrom have been exhausted or lapsed) that Indemnitee has engaged in acts, omissions or transactions for which Indemnitee is prohibited from receiving indemnification under this Agreement or applicable law.
(b) Claims Initiated by Indemnitee To indemnify, exonerate or hold harmless or make Expense Advances to Indemnitee with respect to Claims initiated or brought voluntarily by Indemnitee and not by way of any Tax Loss to the extent that any such Tax Loss occurs as a result of one defense, counterclaim or more of the following:
cross claim, except (i) other than as a result of with respect to actions or proceedings brought to establish or enforce an Alteration by Lesseeindemnification, the entry into a New Lease exoneration or hold harmless right under Section 40 of this Agreement or any severance other agreement or insurance policy or under the Company’s Certificate of this Agreement under Section 41Incorporation or Bylaws now or hereafter in effect relating to Claims for Indemnifiable Events, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) in specific cases if the voluntary sale, assignment, transferBoard of Directors has approved the initiation or bringing of such Claim, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise as otherwise required under Section 145 of the purchase option provided in Section 36 DGCL, regardless of this Agreement;
(vi) whether Indemnitee ultimately is determined to be entitled to such indemnification, exoneration, hold harmless right, Expense Advances or insurance recovery, as the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleasemay be.
Appears in 2 contracts
Sources: Indemnification Agreement (Global Defense Technology & Systems, Inc.), Indemnification Agreement (Global Defense Technology & Systems, Inc.)
Exceptions. Notwithstanding any provision BNPPLC acknowledges and agrees that nothing in Paragraph 4 or the preceding subparagraphs of this Section 39(a) Paragraph 5 will be construed to the contrary, Lessee will not be required require NAI to make pay or reimburse: • Excluded Taxes; or • Losses incurred or suffered by any payment to any Tax Indemnitee in respect of any Tax Loss Interested Party to the extent proximately caused by (and attributed by any applicable principles of comparative fault to) the Established Misconduct of that Interested Party; or • Losses that result from any such Tax Loss occurs as a result of one Liens Removable by BNPPLC; or more • transaction expenses (including Attorneys’ Fees) incurred by any of the following:
(i) other than as a result of an Alteration by LesseeParticipants in connection with the drafting, the entry into a New Lease under Section 40 of this Agreement negotiation or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members execution of the Sprint GroupParticipation Agreement (or supplements making them parties thereto) or in connection with any due diligence Participants may undertake before entering into the Participation Agreement; or • Local Impositions or other Losses contested, directly or indirectly through one or more entities that if and so long as they are classified as partnerships or disregarded entities for federal income tax purposescontested, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement by NAI in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property provisions of this Lease or portion of other Operative Documents which expressly authorize such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documentscontests; or • transaction expenses or other Losses caused by or necessary to accomplish any conveyance by BNPPLC to BNPPLC’s Parent or a Qualified Affiliate which constitutes a Permitted Transfer only by reason of clause (C3) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option definition of Permitted Transfer in the Common Definitions and Provisions Agreement; or • any amount which may from time to time be payable by BNPPLC to any Participant representing the excess of “Base Rent” as defined in the Participation Agreement over Base Rent as defined in and calculated pursuant to this Lease and the Common Definitions and Provisions Agreement; or • any decline in the value of the Property solely by reason of decline in general market conditions and not because of any breach of this Lease or other Operative Documents by NAI. Further, without limiting BNPPLC’s rights (as provided in Section 36 other provisions of this Agreement;
Lease and other Operative Documents) to include the following in the calculation of the Lease Balance, the Break Even Price and the Make Whole Amount (vias applicable) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on collect Base Rent, a Supplemental Payment and other amounts, the appropriate Tax return other than calculation of which depends upon the Lease Balance, BNPPLC acknowledges and agrees that nothing in accordance with Section 39(a)(3) Paragraph 4 or the preceding subparagraphs of this Agreement;
(vii) any failure Paragraph 5 will be construed to require NAI to pay or reimburse an Interested Party for costs paid by BNPPLC with the proceeds of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or Initial Advance as part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseExpenses.
Appears in 2 contracts
Sources: Lease Agreement (Network Appliance Inc), Lease Agreement (Network Appliance Inc)
Exceptions. Notwithstanding any other provision of this Section 39(a) Agreement, the Company shall not be obligated pursuant to the contrary, Lessee will not be required to make any payment to any Tax Indemnitee in respect terms of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the followingthis Agreement:
a. To indemnify or advance Expenses to Indemnitee with respect to Proceedings arising out of acts, omissions or transactions for which Indemnitee is prohibited from receiving indemnification under applicable law.
b. To indemnify or advance Expenses to Indemnitee with respect to Proceedings initiated or brought voluntarily by Indemnitee and not by way of defense, counterclaim or crossclaim, except (i) other than as with respect to actions or proceedings brought to establish or enforce a result of an Alteration by Lessee, the entry into a New Lease right to indemnification under Section 40 of this Agreement or any severance of this Agreement other agreement or insurance policy or under Section 41, the determination that this Agreement is not a "true lease" Charter Documents now or hereafter in effect relating to Proceedings for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased PropertyIndemnifiable Events, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) in specific cases if the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach Board of any covenant or obligation Directors of the Tax Indemnitee set forth in Company has approved the Transaction Documents initiation or bringing of or such Proceeding by any such Tax Indemnitee or any of its Affiliates, in either case, of any a majority vote of the Leased Property or portion of such Leased Property Disinterested Directors.
c. To indemnify Indemnitee for any Expenses incurred by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after action instituted (and not simultaneously withi) (1) the expiration by Indemnitee to enforce or earlier termination interpret this Agreement, if a court having jurisdiction over such action determines that each of the Term with respect to material assertions made by Indemnitee as a Site basis for such action was not made in good faith or was frivolous, or (2ii) by or in the return to Sprint name of the Leased Property related Company to enforce or interpret this Agreement, if a Sitecourt having jurisdiction over such action determines that each of the material defenses asserted by Indemnitee in such action was made in bad faith or was frivolous.
d. To indemnify Indemnitee for Expenses, in either case other than interestjudgments, fines, penalties and additions to tax resulting the payment of profits arising from a Tax Loss that would not be excluded under this clause (xvi);
(xvthe purchase and sale by Indemnitee of securities in violation of Section 16(b) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except Securities Exchange Act of 1934, as amended, or any similar successor statute.
e. To indemnify Indemnitee for Liabilities or Expenses arising from an administrative or civil enforcement action commenced by a federal banking agency to the extent prohibited by the laws or regulations of such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseagency.
Appears in 2 contracts
Sources: Indemnification Agreement (Cobiz Inc), Indemnification Agreement (Cobiz Inc)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforgoing, Lessee a Stockholder will not be required to make comply with Section 3.2 above in connection with any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more proposed Sale of the followingCompany (the “Proposed Sale”) unless:
(a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) other than as a result the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of an Alteration by Lesseeall liens and encumbrances, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation obligations of the Tax Indemnitee set forth Stockholder in connection with the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliatestransaction have been duly authorized, in either caseif applicable, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or willful misconduct violation of such Tax Indemniteethe terms of any agreement, law or judgment, order or decree of any court or governmental agency;
(ivb) penaltiesthe Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, interest, or additions to Tax to other than the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documentsCompany;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vic) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability for indemnification, if any, required of it such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by Section 39(d) of this Agreement to contest the Loss Company in connection with such Proposed Sale, is several and such failure materially prejudices the ability to contestnot joint with any other Person, and Lessee has a reasonable basis for such contest (other than a failure attributable is pro rata in whole or part proportion to the failure amount of Lessee consideration paid to follow such Stockholder in connection with such Proposed Sale (in accordance with the procedures set forth in Section 39(d) provisions of this Agreementthe Second Restated Certificate);
(viiid) any change liability shall be limited to such Stockholder’s pro rata share (determined in Law enacted, adopted or promulgated on or after the date of the Agreement proportion to Lease and Sublease, provided that this exclusion shall not apply to any (1) change proceeds received by such Stockholder in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense connection with such Proposed Sale in accordance with the Proportional Rent provisions of the Second Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration actually paid to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41such Stockholder;
(xiiie) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock, and (iv) unless the holders of at least two-thirds of the Series A Preferred Stock and Series B Preferred Stock elect otherwise by written notice given to the Company at least thirty (30) days prior to the effective date of any tax election such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Sprint Group Member Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is inconsistent a Deemed Liquidation Event) in accordance with the Tax Assumptions Company’s Certificate of Incorporation in effect immediately prior to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Sublease.Proposed Sale; and
Appears in 2 contracts
Sources: Voting Agreement (Anterios Inc), Voting Agreement (Anterios Inc)
Exceptions. Notwithstanding any Any other provision herein to the contrary notwithstanding, pursuant to the terms of this Section 39(a) to the contraryAgreement, Lessee will an Indemnifying Party shall not be required to make any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the followingobligated:
(i) other than as a result of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis to indemnify the Indemnified Party for any acts or (b) respecting an Inclusion omissions or (2) substitution transactions from which a trustee, director, officer or replacement of any Leased Property after a change in agent may not be indemnified by such Indemnifying Party, as provided by Applicable Law;
(ixb) to indemnify or advance Expenses to the failure Indemnified Party with respect to proceedings or claims initiated or brought voluntarily by the Indemnified Party and not by way of the Sprint Groupdefense, except with respect to proceedings brought to establish or any single Sprint Group Memberenforce a right to indemnification under this Agreement, Applicable Law or a policy of insurance referred to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefitsin subsection 7(a) hereof;
(xc) to indemnify the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated Indemnified Party for any Expenses incurred by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss Indemnified Party with respect to any period occurring after (and not simultaneously with) (1) the expiration Proceeding instituted to enforce or earlier termination interpret this Agreement, if a Final Determination is made that any of the Term with respect to a Site material assertions made by the Indemnified Party in such proceedings are not made in good faith or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi)are frivolous;
(xvd) to indemnify the breach Indemnified Party for Expenses or inaccuracy liabilities of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except type whatsoever which have been paid directly to the extent such breach Indemnified Party by an insurance carrier under a policy of trustees’, directors’, managers’, officers’ or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or other applicable liability insurance maintained by an Affiliate under the Transaction Documents)Indemnifying Party;
(xvie) any exclusion under Section 39(a)(4to indemnify the Indemnified Party for Expenses or the payment of profits arising from the purchase and sale by the Indemnified Party of securities in violation of applicable securities laws; or
(f) of any Cross-Defaulted Master Lease and Subleaseto indemnify the Indemnified Party for Expenses for which the Indemnified Party is indemnified by an Indemnifying Party otherwise than pursuant to this Agreement.
Appears in 2 contracts
Sources: Indemnification Agreement (Bumble Bee Capital Corp.), Indemnification Agreement (Bumble Bee Capital Corp.)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforgoing, Lessee a Stockholder will not be required to make comply with Section 4(b)(i) above in connection with any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more proposed Sale of the followingCompany (the “Proposed Sale”) unless:
(iA) other than as a result any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (I) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of an Alteration by Lesseeall liens and encumbrances, (II) the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members obligations of the Sprint GroupStockholder in connection with the transaction have been duly authorized, directly or indirectly through one or more entities that if applicable, (III) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are classified as partnerships or disregarded entities for federal income tax purposes, are not enforceable against the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement Stockholder in accordance with its termstheir respective terms and (IV) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;
(iiB) The Stockholder shall not be liable for the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach inaccuracy of any covenant representation or obligation of the Tax Indemnitee set forth in the Transaction Documents of or warranty made by any such Tax Indemnitee or any of its Affiliatesother Person in connection with the Proposed Sale, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or Company;
(C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability for indemnification, if any, required of it such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by Section 39(d) of this Agreement to contest the Loss Company in connection with such Proposed Sale, is several and such failure materially prejudices the ability to contestnot joint with any other Person, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part is limited to the failure amount of Lessee consideration paid to follow such Stockholder in connection with such Proposed Sale in accordance with the procedures set forth in Section 39(d) provisions of this Agreementthe Certificate of Incorporation);
(viiiD) any change liability shall be limited to such Stockholder’s pro rata share (determined in Law enacted, adopted or promulgated on or after proportion to proceeds received by such Stockholder in connection with such Proposed Sale in accordance with the date provisions of the Agreement Certificate of Incorporation) of a negotiated aggregate indemnification amount that applies equally to Lease and Subleaseall Stockholders but that in no event exceeds the amount of consideration actually paid to such Stockholder in connection with such Proposed Sale, provided that this exclusion shall except with respect to claims related to fraud by such Stockholder, the liability for which need not apply be limited as to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Lawsuch Stockholder;
(ixE) upon the failure consummation of the Sprint GroupProposed Sale, or (I) each Preferred Holder and each holder of Common Shares will receive the same form of consideration for their Common Shares and Preferred Shares, (II) with respect to the Preferred Shares, each Preferred Holder will receive the same amount of consideration per Preferred Share, (III) each holder of Common Shares will receive the same amount of consideration per Common Share, and (IV) unless the holders of at least seventy-five percent (75%) of the Preferred Shares elect otherwise by written notice given to the Company at least fifteen (15) days prior to the effective date of any single Sprint Group Membersuch Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Shares and Common Shares shall be allocated among the holders of Preferred Shares and Common Shares on the basis of the relative liquidation preferences to have sufficient income or Tax liability which the holders of Preferred Shares and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Certificate of Incorporation in effect immediately prior to benefit from the Federal Income Tax Benefits;Proposed Sale; and
(xF) subject to clause (E) above, requiring the inclusion same form of income consideration to be received by a Sprint Group Member the holders of the Company’s Common and Preferred Stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee to Lessor at such capital stock will be given the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleasesame option.
Appears in 2 contracts
Sources: Stockholders Agreement (Syncardia Systems Inc), Stockholders Agreement (Syncardia Systems Inc)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Shareholder will not be required to make comply with Subsection 2.1 above in connection with any payment proposed Sale of the Company (the “Proposed Sale”) unless:
(a) any representations and warranties to any Tax Indemnitee be made by such Shareholder in respect connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Shareholder holds all right, title and interest in and to the Shares such Shareholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Shareholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Shareholder have been duly executed by the Shareholder and delivered to the acquirer and are enforceable against the Shareholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Shareholder’s obligations thereunder, will cause a breach or violation of the terms of any Tax Loss agreement, law or judgment, order or decree of any court or governmental agency;
(b) the Shareholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (other than a breach by any Shareholder of any identical representations, warranties and covenants provided by all Shareholders with respect to the Company and not with respect to themselves, in which case the Shareholder shall be liable for its pro rata share of the damages resulting from such breach, and except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company; provided, however, that the breaching Shareholder shall be required to reimburse the non-breaching Shareholders for an amount equal to their respective pro rata shares of any such Tax Loss occurs as amount paid out of escrow in respect of a result breach by the breaching Shareholder of one or more of the following:
(i) other than as a result of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply its representations and warranties with respect to this Agreement in accordance with its termsitself);
(iic) the voluntary saleliability for indemnification, assignmentif any, transferof such Shareholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Shareholders in connection with such Proposed Sale, or is several and not joint with any other disposition or the involuntary sale, assignment, transfer, or other disposition attributable Person (except to the bankruptcy, insolvency or the extent that funds may be paid out of an escrow established to cover breach of any covenant or obligation representations, warranties and covenants of the Tax Indemnitee Company; provided, however, that the breaching Shareholder shall be required to reimburse the non-breaching Shareholders for an amount equal to their respective pro rata shares of any amount paid out of escrow in respect of a breach by the breaching Shareholder of one of its representations and warranties with respect to itself), and subject to the provisions of the Amended Articles related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Shareholder in connection with such Proposed Sale; and
(d) upon the consummation of the Proposed Sale, each holder of each class or series of the Company’s share capital will receive the same form and amount of consideration for their shares of such class or series as is set forth in the Transaction Documents Amended Articles in effect immediately prior to the consummation of or the Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Shares pursuant to this Subsection 2.3(d) includes any securities and due receipt thereof by any Shareholder would require under applicable law (x) the registration or qualification of such Tax Indemnitee securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Shareholder of its Affiliatesany information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in either Regulation D promulgated under the Securities Act of 1933 or NI 45-106, in either case, of as amended, the Company may cause to be paid to any such Shareholder in lieu thereof, against surrender of the Leased Property or portion of Shares which would have otherwise been sold by such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a saleShareholder, assignment, transfer, or disposition an amount in cash equal to the fair value (A) contemplated as determined in good faith by the Transaction Documents; (BCompany) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 securities which such Shareholder would otherwise receive as of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change issuance of such securities in tax rates applicable to exchange for the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseShares.
Appears in 2 contracts
Sources: Voting Agreement (DAVIDsTEA Inc.), Voting Agreement (DAVIDsTEA Inc.)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Stockholder will not be required to make comply with Section 2.6(a) above in connection with any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more proposed Sale of the followingCompany (the “Proposed Sale”) unless:
(i) other than as a result any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such shares of an Alteration by LesseeCapital Stock, including, but not limited to, representations and warranties that (i) the entry into a New Lease under Section 40 Stockholder holds all right, title and interest in and to the shares of this Agreement or any severance Capital Stock such Stockholder purports to hold, free and clear of this Agreement under Section 41all liens and encumbrances, (ii) the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members obligations of the Sprint GroupStockholder in connection with the transaction have been duly authorized, directly or indirectly through one or more entities that if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are classified as partnerships or disregarded entities for federal income tax purposes, are not enforceable against the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement Stockholder in accordance with its their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;
(ii) the voluntary saleStockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, assignment, transfer, or other disposition or than the involuntary sale, assignment, transfer, or other disposition attributable Company (except to the bankruptcy, insolvency or the extent that funds may be paid out of an escrow established to cover breach of any covenant or obligation representations, warranties and covenants of the Tax Indemnitee set forth in the Transaction Documents of or Company as well as breach by any such Tax Indemnitee or any of its Affiliates, in either case, stockholder of any of the Leased Property or portion of such Leased Property identical representations, warranties and covenants provided by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreementall stockholders);
(iii) the gross negligence or willful misconduct liability for indemnification, if any, of such Tax IndemniteeStockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale;
(iv) penaltiesliability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, interestexcept with respect to claims related to fraud by such Stockholder, or additions the liability for which need not be limited as to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documentssuch Stockholder;
(v) Lessee's exercise upon the consummation of the purchase option provided Proposed Sale, (A) each holder of each class or series of Common Stock, Preferred Stock and Derivative Securities will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of Common Stock, Preferred Stock and Derivative Securities, (B) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (C) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (D) unless the holders of (i) at least sixty-five percent (65%) of the then outstanding shares of Series C Preferred Stock and (ii) at least sixty percent (60%) of the then outstanding shares of Series B Preferred Stock elect to receive a lesser amount by written notice given to the Company at least five (5) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of Common Stock, Preferred Stock and Derivative Securities shall be allocated among the holders of Common Stock, Preferred Stock and Derivative Securities on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Liquidation Event (assuming for this purpose that the Proposed Sale is a Liquidation Event) in accordance with the Restated Certificate in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for a Key Holder’s Common Stock, Preferred Stock and Derivative Securities or an Investor’s Common Stock, Preferred Stock and Derivative Securities, as applicable, pursuant to this Section 36 2.6(b)(ii) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of this Agreement;such securities or of any Person as a broker or dealer or agent with respect to such securities or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder’s Common Stock, Preferred Stock and Derivative Securities or the Investor’s Common Stock, Preferred Stock and Derivative Securities, as applicable, that would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder’s Common Stock, Preferred Stock and Derivative Securities or the Investor’s Common Stock, Preferred Stock and Derivative Securities, as applicable; and
(vi) subject to Section 2.6(b)(ii) above requiring the failure by same form of consideration to be available to the Sprint Group holders of any single class or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) series of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsCommon Stock, Preferred Stock and Derivative Securities, if anyany holders of any Common Stock, required of it by Section 39(d) of this Agreement to contest the Loss Preferred Stock and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part Derivative Securities are given an option as to the failure form and amount of Lessee consideration to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee such Common Stock, Preferred Stock and Derivative Securities will be given the same option; provided, however, that nothing in this Section 2.6(b)(iii) shall entitle any holder to Lessor at the end receive any form of the Term;
(xi) consideration that such holder would be ineligible to receive as a determination result of such holder’s failure to satisfy any condition, requirement or limitation that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply generally applicable to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseCompany’s stockholders.
Appears in 2 contracts
Sources: Stockholders' Agreement, Stockholders Agreement (G1 Therapeutics, Inc.)
Exceptions. Notwithstanding any provision of this The indemnity provided for in Section 39(a9.01(a) to the contrary, Lessee will shall not be required to make any payment extend to any Tax Indemnitee in respect Expense of any Tax Loss Indemnitee to the extent that any such Tax Loss occurs as a result of one or more of the followingit:
(i) other than as a result would not have occurred but for the willful misconduct or gross negligence of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termssuch Indemnitee;
(ii) after the voluntary saleDelivery Date, assignmentis in respect of the Aircraft, transferand is attributable to acts or events which occur after the Aircraft is no longer part of the Lessor's Estate or leased under the Lease or, if the Aircraft remains a part of the Lessor's Estate, after the expiration of the Term and any holdover period under Section 12.05 of the Lease (other than pursuant to Article 17 of the Lease, in which case the indemnity provided in Section 9.01(a) hereof shall survive for so long as Lessor or the Indenture Trustee shall be entitled to exercise remedies under such Article 17), or other disposition to acts or events which occur after return of possession of the involuntary sale, assignment, transfer, or other disposition Aircraft by the Lessee in accordance with the provisions of the Lease but in any such case only to the extent not fairly attributable to the bankruptcy, insolvency acts or the breach of any covenant or obligation omissions of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any Lessee prior to expiration of the Leased Property or portion Term and any holdover period under Section 12.05 of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a salethe Lease, assignment, transfer, or disposition (A) contemplated by including without limitation the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance Lessee's failure to fully discharge all of its obligations under the Transaction Documents; Lease or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreementthe other Operative Agreements;
(iii) is a Tax, whether or not the gross negligence Lessee is required to indemnify therefor pursuant to Article 8 hereof or willful misconduct of such pursuant to the Tax IndemniteeIndemnity Agreement;
(iv) penalties, interest, is a cost or additions expense required to Tax be paid by the Owner Participant or its permitted transferees (and not by the Lessee) pursuant to the extent based upon issues unrelated to the transactions contemplated by this Agreement or any other Operative Agreement (other than the Owner Participant's obligations under Section 6.01 of the Trust Agreement) and related documentsfor which the Lessee is not otherwise obligated to reimburse the Owner Participant, directly or indirectly;
(v) Lessee's exercise would not have been incurred by such Indemnitee if such Indemnitee had not been in breach of its representations or warranties, or had not defaulted in the observance and performance of the purchase option provided terms and provisions required to be observed and performed by it, in Section 36 of this Agreement, the Purchase Agreement Assignment, the Lease, the Indenture, the Trust Agreement or any other Operative Agreement to which it is a party unless such breach or default shall be a result of the breach or default of any of the foregoing by the Lessee or another Indemnitee;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement[reserved];
(vii) any failure in the case of the Tax Indemnitee to have taken all the actionsOwner Participant, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part Lessor's Liens to the failure extent attributable to the Owner Participant; in the case of Lessee the Owner Trustee, Lessor's Liens to follow the procedures set forth extent attributable to the Owner Trustee; and in Section 39(d) the case of this Agreement)the Indenture Trustee, Indenture Trustee's Liens;
(viii) any change is in Law enactedthe case of the Owner Participant or the Owner Trustee, adopted to the extent attributable to the offer or promulgated on or sale by such Indemnitee after the date Certificate Closing Date of any interest in the Aircraft, the Lessor's Estate or the Trust Agreement or any similar interest (including an offer or sale resulting from bankruptcy or other proceedings for the relief of debtors in which such Indemnitee is the debtor), unless in each case such offer or sale shall occur (w) in connection with a Refinancing, (x) as a result of exercise of remedies under Article 17 of the Agreement to Lease, (y) during a period when an Event of Loss has occurred or (z) in connection with the termination of the Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable or action or direction of the Lessee pursuant to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;Lease; or
(ix) which is incurred by the failure Owner Participant or any person who is a "disqualified person", within the meaning of Section 4975(e)(2) of the Sprint GroupCode, or any single Sprint Group Membera "party in interest", within the meaning of Section 3(14) of ERISA, by virtue of such person's relationship to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) Owner Participant, as the inclusion of income by a Sprint Group Member as a result of any prohibited transaction, within the reversion meaning of Alterations made by Lessee to Lessor at the end Section 406 of ERISA or Section 4975(c)(1) of the Term;
Code, occurring with respect to the purchase or holding of any Pass Through Certificate (xii) a determination that Sprint is not over which purchase or holding the Leased Property Owner Participant or any Affiliate thereof has discretion or control (other than in the ordinary course capacity of a trade directed trustee or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence ofcustodian), or any consequence of(ii) by an employee benefit plan, within the prepayment meaning of the RentSection 3(3) of ERISA, or the application of individual retirement account or plan subject to Section 467 4975 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to which the Owner Participant (or any period occurring after (and not simultaneously withAffiliate thereof) (1) has the expiration power, directly or earlier termination indirectly, to appoint or terminate, or to negotiate the terms of the Term with respect to a Site management agreement with, the person or persons having discretion or control (2) the return to Sprint of the Leased Property related to a Site, in either case other than interestin the capacity of a directed trustee or custodian), fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach over such purchase or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseholding.
Appears in 2 contracts
Sources: Participation Agreement (Federal Express Corp), Participation Agreement (Federal Express Corp)
Exceptions. Notwithstanding Sublessee is not required to indemnify any provision of particular Indemnitee (provided that each Indemnitee and their Affiliates, officers, directors and employees shall be treated as a single Indemnitee) under this Section 39(a) to the contrary10, Lessee will not be required to make any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax a particular Loss occurs as a result of one or more of the followingis:
(i) other than as a result of an Alteration 10.2.1 caused solely by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax that Indemnitee, other than gross negligence imputed to that Indemnitee by reason of its interest in the Aircraft or the Sublease;
(iv) penalties, interest, 10.2.2 caused solely by any Indemnitee’s material breach of the Sublease or additions other Operative Documents to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documentswhich it is a party which does not result from a Default;
10.2.3 related to any Taxes (v) Lessee's exercise but without prejudice to any Indemnitee’s rights under any other provision of the purchase option provided in Section 36 of this Agreement;
(vi) Sublease or the failure by the Sprint Group or any Sprint Group Member timely or properly ATSA relating to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this AgreementTaxes);
(viii) any change in Law enacted, adopted or promulgated on or after 10.2.4 caused solely by an event which occurs before the date commencement of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any Term (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss except where (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ixaa) the failure of Loss is suffered during the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member Term as a result of a pre-Delivery defect in or otherwise arises out of or relates to or is any way connected with the reversion of Alterations made by Lessee to Lessor at the end manufacture or design, of the TermAircraft or (bb) the Aircraft has been purchased from Sublessee (or an Affiliate of Sublessee) and is to be leased back to Sublessee under the Sublease);
(xi) a determination 10.2.5 caused solely by an event that Sprint occurs after the redelivery of the Aircraft to Sublessor in compliance with the Sublease and is not holding the Leased Property in the ordinary course of a trade attributable to any act, omission, event or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profitcircumstance occurring prior to such redelivery;
10.2.6 caused solely as a result of any sale, assignment, transfer or other disposition (xiiwhether voluntary or involuntary) by such Indemnitee of the existence of, Aircraft or any consequence ofEngine or any interest therein that is not a replacement thereof under the Sublease or is otherwise not contemplated under the Sublease, and unless such sale, assignment, transfer or other disposition has resulted from or occurred following an Event of Default;
10.2.7 consists of normal administrative costs and expenses or usual operating and overhead costs and expenses of such Indemnitee (but excluding any such costs or expenses resulting from the prepayment occurrence of any Default);
10.2.8 consists of costs or expenses for which Sublessor has expressly agreed to be responsible under any other provision of the Rent, Sublease or the application of Section 467 of the Code ATSA;
10.2.9 is a Loss for which Sublessor or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply any other Indemnitee has expressly agreed to the entry into a New Lease be responsible under Section 40 any other provision of this Agreement or any severance of other Operative Document; or
10.2.10 is indemnified against elsewhere in this Agreement under Section 41;
(xiii) or any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseOperative Document.
Appears in 2 contracts
Sources: Air Transportation Services Agreement (Sun Country Airlines Holdings, Inc.), Air Transportation Services Agreement (Sun Country Airlines Holdings, Inc.)
Exceptions. Notwithstanding any provision of this The indemnity provided for in Section 39(a7.01(a) to the contrary, Lessee will shall not be required to make any payment extend to any Tax Indemnitee in respect Expense of any Tax Loss Indemnitee to the extent that any such Tax Loss occurs as a result of one or more of the followingit:
(i) is attributable to the willful misconduct or gross negligence of such Indemnitee (other than as a result gross negligence or willful misconduct imputed to such person by reason of an Alteration by Lessee, its interest in the entry into a New Lease under Section 40 of this Agreement Aircraft or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termstransaction documents);
(ii) except to the voluntary saleextent fairly attributable to acts or events occurring prior thereto, assignmentis attributable to acts or events (other than the performance by Lessee of its obligations pursuant to the terms of the Operative Agreements) which occur after the Aircraft is no longer part of the Lessor's Estate or, transferif the Aircraft remains a part of the Lessor's Estate, after the expiration of the Term (unless the Aircraft is being returned at such time, in which case after return of physical possession; PROVIDED that if the Lease has been terminated pursuant to Section 17 thereof, the indemnity provided in Section 7.01(a) hereof shall survive for so long as Lessor shall be exercising remedies under such Section 17), or other disposition to acts or events which occur after return of possession of the involuntary sale, assignment, transfer, or other disposition attributable Aircraft by the Lessee in accordance with the provisions of the Lease (subject to the bankruptcy, insolvency foregoing proviso if the Lessor has terminated the Lease pursuant to Section 17 of the Lease); PROVIDED that nothing in this clause (ii) shall be deemed to exclude or the limit any claim that any Indemnitee may have under Applicable Law by reason of an Event of Default or for damages from Lessee for breach of any covenant or obligation of the Tax Indemnitee set forth Lessee's covenants contained in the Transaction Lessee Documents of or by to release Lessee from any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise Documents that expressly provide for performance after termination of remedies under this Agreementthe Term;
(iii) other than as expressly provided herein or in the gross negligence other Operative Agreements, is a Tax or willful misconduct loss of such a Tax Indemnitee;benefit, whether or not the Lessee is required to indemnify therefor pursuant to Article 6 hereof or pursuant to the Tax Indemnity Agreement; 38
(iv) penaltiesis a cost or expense expressly required to be paid by such Indemnitee or its permitted transferees (and not by the Lessee) pursuant to this Agreement or any other Operative Agreement and for which the Lessee is not otherwise obligated to reimburse such Indemnitee, interest, directly or additions to Tax indirectly pursuant to the extent based upon issues unrelated to the transactions contemplated by terms of this Agreement and related documentsor such other Operative Agreement;
(v) Lessee's exercise is attributable to the incorrectness or breach by such Indemnitee of its representations or warranties, under any of the purchase option provided in Section 36 Operative Agreements except to the extent such incorrectness or breach was caused by a breach by Lessee of this any representation or warranty or by any failure of Lessee to perform any obligation under an Operative Agreement;
(vi) is attributable to the failure by such Indemnitee to perform any of its obligations under any of the Sprint Group Operative Agreements except to the extent such failure was caused by a breach by Lessee of any representation or warranty or by any Sprint Group Member timely or properly failure of Lessee to claim perform any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this obligation under an Operative Agreement;
(vii) any failure is, in the case of the Tax Indemnitee to have taken all the actionsOwner Participant, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure Lessor's Liens attributable in whole or part to the failure Owner Participant; in the case of Lessee the Owner Trustee, Lessor's Liens to follow the procedures set forth extent attributable to the Owner Trustee; in Section 39(d) the case of this Agreement)Trust Company, Lessor's Liens to the extent attributable to Trust Company;
(viii) any change is, in Law enacted, adopted or promulgated on or after the date case of the Agreement to Lease and SubleaseOwner Participant or the Owner Trustee, provided that this exclusion shall not apply to any (1) change in tax rates applicable attributable to the making offer or sale by such Indemnitee of any indemnity payment interest in the Aircraft, the Lessor's Estate or the Trust Agreement or any similar interest (including an offer or sale resulting from bankruptcy or other proceedings for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis the relief of debtors in which such Indemnitee is the debtor), unless in each case such offer or (b) respecting an Inclusion or (2) substitution or replacement sale shall occur pursuant to the exercise of any Leased Property after a change in Lawremedies under Section 17 of the Lease;
(ix) in the failure case of the Sprint GroupOwner Participant, is an Expense relating to, resulting from, arising out of or in connection with a "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code resulting from the direct or indirect use of assets of any single Sprint Group MemberERISA Plan to acquire or hold Owner Participant's interest in the Trust Estate or in the case of any transferee of the Owner Participant referred to in Section 5.01(c), to have sufficient income or Tax liability purchase the Beneficial Interest pursuant to benefit from the Federal Income Tax BenefitsSection 5.01(c);
(x) except during the inclusion continuation of income by a Sprint Group Member as a result an Event of Default, is attributable to any amendment to any of the reversion Operative Agreements which is not requested, or consented to, by the Lessee or is not required or made pursuant to the terms of Alterations made by Lessee to Lessor at the end any of the TermOperative Agreements;
(xi) a determination that Sprint is not holding attributable to the Leased Property in exercise by any Indemnitee of any right to inspect the ordinary course Aircraft except with respect to any such inspection conducted while an Event of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profitDefault is continuing;
(xii) constitutes the existence of, loss of future profits of such Indemnitee or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply losses attributable to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;such Indemnitee's overhead; and
(xiii) any tax election by a Sprint Group Member that arises from or is inconsistent with the Tax Assumptions attributable to the extent of a resulting increase like-kind exchange transaction described in the Lessee's indemnity obligations hereunder;
(xivlast sentence of Section 2.01(a) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy Expenses exceed the amount of any representation, warranty or covenant Expenses that would have been imposed in the absence of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Crosssuch like-Defaulted Master Lease and Subleasekind exchange transaction.
Appears in 2 contracts
Sources: Participation Agreement (Republic Airways Holdings Inc), Participation Agreement (Republic Airways Holdings Inc)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Shareholder will not be required to make comply with Section 5.01(a) in connection with any payment to any Tax Indemnitee in respect proposed Change of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the followingControl Transaction unless:
(i) other than as a result any representations and warranties to be made by such Shareholder in connection with the proposed Change of an Alteration by LesseeControl Transaction are limited to representations and warranties related to authority, ownership and the entry into a New Lease under Section 40 ability to convey title to such Securities, including, but not limited to, representations and warranties that (A) the Shareholder holds all right, title and interest in and to the Securities such Shareholder purports to hold, free and clear of this Agreement or any severance of this Agreement under Section 41all liens and encumbrances, (B) the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members obli- gations of the Sprint GroupShareholder in connection with the transaction have been duly authorized, directly or indirectly through one or more entities that if applicable, (C) the documents to be entered into by the Shareholder have been duly executed by the Shareholder and delivered to the acquirer and are classified as partnerships or disregarded entities for federal income tax purposes, are not enforceable against the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement Shareholder in accordance with its their respective terms; and (D) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Shareholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;
(ii) the voluntary saleShareholder shall not be liable for the inaccuracy of any representation or warranty made by any other person in connection with the proposed Change of Control Transaction, assignment, transfer, or other disposition or than the involuntary sale, assignment, transfer, or other disposition attributable Company (except to the bankruptcy, insolvency or the extent that funds may be paid out of an escrow established to cover breach of any covenant or obligation representations, warranties and covenants of the Tax Indemnitee set forth in the Transaction Documents of or Company as well as breach by any such Tax Indemnitee or any of its Affiliates, in either case, Shareholder of any of the Leased Property or portion of such Leased Property identical representations, warranties and covenants provided by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreementall Shareholders);
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability for indemnification, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property Shareholder in the ordinary course proposed Change of a trade or business or that Sprint did not enter into Control Transaction and for the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representationrepresentations and warranties made by the Company or its Shareholders in connection with such proposed Change of Control Transaction, warranty or covenant by is several and not joint with any Sprint Group Member in any of the Transaction Documents other person (except to the extent such that funds may be paid out of an escrow established to cover breach or inaccuracy is attributed to a of representations, warranties and covenants of the Company as well as breach or inaccuracy by any Shareholder of any representationof identical representations, warranty or covenant warranties and covenants provided by all Shareholders), and is pro rata in proportion to, and does not exceed, the amount of Lessee or an Affiliate under consideration paid to such Shareholder in connection with such proposed Change of Control Transaction, except with respect to claims related to fraud by such Shareholder, the Transaction Documents);liability for which need not be limited as to such Shareholder; and
(xviiv) any exclusion under upon the consummation of the proposed Change of Control Transaction
(A) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock (except as set forth in Section 39(a)(45.01(a)(vi) above), and (ii) the aggregate consideration receivable by all holders of any Cross-Defaulted Master Lease the Preferred Stock and SubleaseCommon Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a transaction deemed to be a liquidation, dissolution or winding up of the Company pursuant to the Company's Certificate of Incorporation (assuming for this purpose that the proposed Change of Control Transaction is a transaction deemed to be a liquidation, dissolution or winding up of the Company pursuant to the Company's Certificate of Incorporation).
Appears in 2 contracts
Sources: Shareholder Agreement, Shareholder Agreements
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Stockholder will not be required to make comply with Section 5.1 above in connection with any payment proposed Sale Event of the Company (the “Proposed Sale”), unless:
(a) any representations and warranties to any Tax Indemnitee be made by such Stockholder in respect connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any Tax Loss agreement, law or judgment, order or decree of any court or governmental agency;
(b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that any such Tax Loss occurs as a result funds may be paid out of one or more an escrow established to cover breach of representations, warranties and covenants of the following:
(i) other than Company as a result well as breach by any stockholder of an Alteration any of identical representations, warranties and covenants provided by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termsall stockholders);
(iic) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability for indemnification, if any, required of it such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by Section 39(d) the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of this Agreement an escrow established to contest cover breach of representations, warranties and covenants of the Loss Company as well as breach by any stockholder of any of identical representations, warranties and such failure materially prejudices the ability to contestcovenants provided by all stockholders), and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part subject to the failure provisions of Lessee the Charter related to follow the procedures set forth allocation of the escrow, is pro rata in Section 39(d) proportion to, and does not exceed, the amount of this Agreement)consideration paid to such Stockholder in connection with such Proposed Sale;
(viiid) any change liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in Law enacted, adopted or promulgated on or after connection with such Proposed Sale in accordance with the date provisions of the Agreement Charter) of a negotiated aggregate indemnification amount that applies equally to Lease and Subleaseall Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, provided that this exclusion shall except with respect to claims related to fraud by such Stockholder, the liability for which need not apply be limited as to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Lawsuch Stockholder;
(ixe) upon the failure consummation of the Sprint GroupProposed Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, or (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless a Preferred Majority (as defined in the Charter) elect to receive a lesser amount by written notice given to the Company at least 5 days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a deemed Liquidation Event) in accordance with the Charter in effect immediately prior to the Proposed Sale; and
(f) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single Sprint Group Memberclass or series of capital stock, if any holders of any capital stock of the Company are given an option as to have sufficient income or Tax liability the form and amount of consideration to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee such capital stock will be given the same option; provided, however, that nothing in this Section 5.2(f) shall entitle any holder to Lessor at the end receive any form of the Term;
(xi) consideration that such holder would be ineligible to receive as a determination result of such holder’s failure to satisfy any condition, requirement or limitation that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply generally applicable to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseCompany’s stockholders.
Appears in 2 contracts
Sources: Stockholders Agreement (Quanterix Corp), Stockholders Agreement (Quanterix Corp)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee will a Voting Party shall not be required to make comply with Section 7(b) above in connection with any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more proposed Sale of the followingCompany (the “Proposed Sale”) unless:
(i) other than as a result any representations and warranties to be made by such Voting Party in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (A) the Voting Party holds all right, title and interest in and to the Shares such Voting Party purports to hold, free and clear of an Alteration by Lesseeall liens and encumbrances, (B) the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members obligations of the Sprint GroupVoting Party in connection with the transaction have been duly authorized, directly or indirectly through one or more entities that if applicable, (C) the documents to be entered into by the Voting Party have been duly executed by the Voting Party and delivered to the acquirer and are classified as partnerships or disregarded entities for federal income tax purposes, are not enforceable against the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement Voting Party in accordance with its termstheir respective terms and (D) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Voting Party’s obligations thereunder, shall cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;
(ii) the voluntary saleVoting Party shall not be liable for the inaccuracy of any representation or warranty made by any other person in connection with the Proposed Sale, assignment, transfer, or other disposition or than the involuntary sale, assignment, transfer, or other disposition attributable Company (except to the bankruptcy, insolvency or the extent that funds may be paid out of an escrow established to cover breach of any covenant or obligation representations, warranties and covenants of the Tax Indemnitee set forth in the Transaction Documents of or Company as well as breach by any such Tax Indemnitee or any of its Affiliates, in either case, stockholder of any of the Leased Property or portion of such Leased Property identical representations, warranties and covenants provided by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreementall stockholders);
(iii) the gross negligence or willful misconduct liability for indemnification, if any, of such Tax Indemniteestockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Voting Party in connection with such Proposed Sale (in accordance with the provisions of the Certificate);
(iv) penaltiesupon the consummation of the Proposed Sale, interest(A) each holder of each class or series of the Company’s stock shall receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, or additions to Tax (B) each holder of a series of Preferred Stock shall receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (C) each holder of Common Stock shall receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (D) unless the holders of at least sixty percent (60%) of the voting power of the outstanding shares of Preferred Stock elect otherwise by written notice given to the extent based upon issues unrelated Company at least 5 days prior to the transactions contemplated effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Liquidation Event (assuming for this Agreement and related documents;purpose that the Proposed Sale is a Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; and
(v) Lessee's exercise subject to clause (iv) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the purchase Company are given an option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part as to the failure form and amount of Lessee consideration to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee to Lessor at such capital stock shall be given the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleasesame option.
Appears in 2 contracts
Sources: Voting Agreement (Prosper Marketplace Inc), Voting Agreement (Prosper Marketplace Inc)
Exceptions. Notwithstanding any provision of this The indemnity provided for in Section 39(a8.01(a) to the contrary, Lessee will shall not be required to make any payment extend to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the following:
(i) With respect to an Indemnitee, Taxes based upon, measured by or with respect to the net or gross income, items of tax preference or minimum tax or excess profits, receipts, value added (but only to the extent such value added tax is in the nature of an income tax), capital, franchise, net worth or conduct of business or other similarly-based Taxes of such Indemnitee (other than any Taxes in the nature of sales, use, transfer, excise, rental, license, ad valorem, property or other similarly based Taxes) (the "Income Taxes"); provided, however that the provisions of this paragraph (b)(i) shall not exclude from the indemnity described in Section 8.01(a) hereof, any Income Taxes to the extent such Income Taxes are imposed by any jurisdiction in which the Indemnitee would not be subject to such type of Income Taxes but for, or would be subject to such type of Income Taxes solely as a result of, (x) the operation, registration, location, presence, or use of an Alteration by Lesseethe Aircraft, the entry into a New Lease under Section 40 of this Agreement Airframe, any Engine or any severance Part thereof, in such jurisdiction or (y) the place of this Agreement under Section 41, incorporation or principal office or the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members activities of the Sprint Group, directly Lessee or indirectly through one or more entities any sublessee in such jurisdiction (it being understood that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax indemnity would be payable only to the extent based upon issues unrelated of the net harm incurred by the Indemnitee from such Income Taxes, taking into account any incremental current Tax benefit in another tax jurisdiction resulting from payment of such Income Taxes); provided, further, that the provisions of this paragraph (b)(i) relating to Income Taxes shall not exclude from the indemnity described in Section 8.01(a) hereof any Income Taxes for which the Lessee would be required to indemnify an Indemnitee (x) so that any payment under the Operative Agreements, otherwise required to be made on an After-Tax Basis, is made on an After-Tax Basis or (y) pursuant to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise last sentence of the purchase option provided in Section 36 8.02, 8.05, 9.02 or 9.05 of this Agreement;
(viii) [Reserved];
(iii) Taxes arising out of or measured by acts, omissions, events or periods of time (or any combination of the foregoing) which occur after (and are not attributable to acts, omissions or events occurring contemporaneously with or prior to) (A) the failure payment in full of all amounts payable by the Sprint Group or any Sprint Group Member timely or properly Lessee pursuant to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than and in accordance with the Operative Agreements, or the earlier discharge in full of the Lessee's payment obligations under and in accordance with the Lease and the Operative Agreements (and the Certificates in the case of the Indenture Trustee or the Trust Indenture Estate if the Lessee shall have assumed the Certificates pursuant to Section 39(a)(3) 7.11 of this Agreement;
), and (viiB) any failure the earliest of (x) the expiration of the Tax Indemnitee to have taken Term of the Lease and return of the Aircraft in accordance with Article 12 of the Lease, (y) the termination of the Lease in accordance with the applicable provisions of the Lease and return of the Aircraft 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 actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part Aircraft to the failure Lessee pursuant to its exercise of Lessee to follow the procedures any of its purchase options set forth in Section 39(d4.02(a) of the Lease, except that, notwithstanding anything in this Agreement)Section 8.01(b) to the contrary, Taxes incurred in connection with the exercise of any remedies pursuant to Article 17 of the Lease following the occurrence of an Event of Default shall not be excluded from the indemnity described in Section 8.01(a) hereof;
(viiiiv) any change in Law enactedAs to the Owner Trustee, adopted Taxes imposed against the Owner Trustee upon or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply with respect to any (1) change fees for services rendered in tax rates applicable its capacity as Owner Trustee under the Trust Agreement or, as to the making of Indenture Trustee, Taxes imposed against the Indenture Trustee upon or with respect to any indemnity payment fees received by it for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change services rendered in Lawits capacity as Indenture Trustee under the Indenture;
(ixv) Taxes imposed on an Indemnitee that would not have been imposed but for the failure willful misconduct or gross negligence of the Sprint Group, such Indemnitee (other than gross negligence or any single Sprint Group Member, willful misconduct not actually committed by but instead imputed to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion such Indemnitee by reason of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property such Indemnitee's participation in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xiiOperative Agreements) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election breach by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy such Indemnitee of any representation, warranty or covenant by contained in the Operative Agreements or any Sprint Group Member document delivered in any of the Transaction Documents connection therewith (except to the extent such breach or inaccuracy is attributed unless attributable to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction DocumentsLessee);
(xvivi) Taxes imposed on the Owner Trustee or the Owner Participant or any exclusion successor, assign or Affiliate thereof which became payable by reason of any voluntary or involuntary transfer or disposition by such Indemnitee subsequent to the Delivery Date, including revocation of the Trust, of any interest in some or all of the Aircraft, Airframe, Engines or Parts thereof or its interest in the Lessor's Estate, other than (A) Taxes that result from transfers or dispositions which occur while an Event of Default under Section 39(a)(4the Lease has occurred and is continuing at the time of such transfer or disposition or (B) Taxes that result from any transfer or disposition pursuant to the terms of the Lease;
(vii) Taxes imposed on the Owner Participant for which the Lessee is obligated to indemnify the Owner Participant pursuant to the Tax Indemnity Agreement;
(viii) Notwithstanding anything herein to the contrary, Taxes imposed on a successor, assign or other transferee (including, without limitation, a transferee which is a new lending office of an original Indemnitee) of any Cross-Defaulted Master entity or Person which on the Delivery Date is an Indemnitee (for purposes of this clause (viii), an "original Indemnitee") or such original Indemnitee to the extent that such Taxes exceed the amount of Taxes that would have been imposed and would have been indemnifiable pursuant to Section 8.01(a) hereof had there not been a succession, assignment or other transfer by such original Indemnitee of any such interest of such Indemnitee in the Aircraft or any Part thereof, any interest in or under any Operative Agreement, or any proceeds thereunder (it being understood that for purposes of determining the amount of indemnification that would have been due to such original Indemnitee with respect to a net income Tax, it shall be assumed that such original Indemnitee would be subject to taxation on its income at the highest marginal statutory rate applicable to it); provided, however, that the exclusion provided by this clause (viii) shall not apply in the case of a succession, assignment or other transfer (1) while an Event of Default under the Lease or the Indenture has occurred and Subleaseis continuing; (2) required by any provision of the Operative Agreements (other than pursuant to Section 7.02 hereof) or (3) in the case of the Owner Participant, to any Tax other than an Income Tax;
(ix) [Reserved];
(x) any Taxes which have been included in the Purchase Price;
(xi) any Taxes which would not have been imposed but for a Lessor's Lien with respect to the Owner Participant or an Indenture Trustee's Lien with respect to the Indenture Trustee;
(xii) any Taxes imposed on the Owner Participant or any person who is a "disqualified person", within the meaning of Section 4975(e)(2) of the Code, or a "party in interest", within the meaning of Section 3(14) of ERISA, by virtue of such person's relationship to the Owner Participant as the result of any prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code, occurring with respect to the purchase or holding of any Pass Through Certificate (or any funded participation therein) (i) over which purchase or holding the Owner Participant or any Affiliate thereof has discretion or control (other than in the capacity of a directed trustee or custodian), or (ii) by an employee benefit plan, within the meaning of Section 3(3) of ERISA, or individual retirement account or plan subject to Section 4975 of the Code with respect to which the Owner Participant (or any Affiliate thereof) has the power, directly or indirectly, to appoint or terminate, or to negotiate the terms of the management agreement with, the person or persons having discretion or control (other than in the capacity of a directed trustee or custodian), over such purchase or holding; and
(xiii) Taxes imposed by any jurisdiction to the extent they would have been imposed on the Lessor or the Owner Participant for activities in such jurisdiction unrelated to the transactions contemplated by the Operative Agreements.
Appears in 2 contracts
Sources: Participation Agreement (Federal Express Corp), Participation Agreement (Federal Express Corp)
Exceptions. Notwithstanding any 4.1 Any other provision herein to the contrary notwithstanding, pursuant to the terms of this Section 39(a) to Agreement the contrary, Lessee will Corporation shall not be required to make any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the followingobligated:
(a) To indemnify or advance expenses to the Indemnified Party with respect to Proceedings initiated or brought voluntarily by the Indemnified Party and not by way of defense, unless (i) other than as the Proceedings were brought to establish or enforce a result of an Alteration by Lesseeright to indemnification under this Agreement, the entry into a New Lease under Section 40 of this Agreement DGCL or any severance of this Agreement under Section 41other statute or law, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, Board authorized the Proceeding (or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach any part of any covenant Proceeding) prior to its initiation or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penaltiesCorporation provides the indemnification, interestin its sole discretion, or additions to Tax pursuant to the extent based upon issues unrelated to powers vested in the transactions contemplated by this Agreement and related documents;Corporation under applicable law; or
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of To indemnify the Indemnified Party for any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated expenses incurred by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss Indemnified Party with respect to any period occurring after (and not simultaneously with) (1) the expiration claim, action or earlier termination proceeding instituted to enforce or interpret this Agreement, if a court of competent jurisdiction determines that any of the Term material assertions made by the Indemnified Party in such Proceedings was not made in good faith or was frivolous; or
(c) To indemnify the Indemnified Party for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnified Party of securities of the Corporation within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or similar provisions of state statutory law or common law, or (ii) any reimbursement of the Corporation by the Indemnified Party of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnified Party from the sale of securities of the Corporation, as required in each case under the Exchange Act; or
(d) To indemnify the Indemnified Party for expenses or liabilities of any type whatsoever which have been paid directly to the Indemnified Party by an insurance carrier under a policy of directors’ and officers’ liability insurance maintained by the Corporation, except with respect to a Site any excess beyond the amount paid under any insurance policy or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseindemnity provision.
Appears in 2 contracts
Sources: Indemnification Agreement (Oppenheimer Holdings Inc), Indemnification Agreement (Oppenheimer Holdings Inc)
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary9.1.1, Lessee will shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 9.1.1 in respect of any Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax Loss benefit, whether or not Lessee is required to indemnify therefor pursuant to Section 9.3 or the Tax Indemnity Agreement;
(b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance or failure to perform by Lessee of its obligations pursuant to the terms of the Lessee Operative Agreements) that occur after the earliest of: (i) with respect to the Airframe, any Engine or any Part, the return of possession (it being understood that the date of the placement of the Aircraft in storage as provided in Section 5 of the Lease constitutes the date of return of the Aircraft under the Lease) of such Tax Loss occurs Airframe, Engine or Part pursuant to the terms of and in compliance with the Lease (other than pursuant to Section 15 thereof, in which case Lessee's liability under this Section 9.1 shall survive for so long as Lessor or Mortgagee shall be entitled to exercise remedies under such Section 15) or (ii) the termination of the Term in accordance with the Lease;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note or interest therein, except (i) for out-of-pocket costs and expenses incurred as a result of one or more any such Transfer pursuant to the exercise of remedies under any Operative Agreement resulting from a Lease Event of Default and (ii) as otherwise required by the terms of Section 2.13 of the following:Trust Indenture;
(id) other than To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of Owner Participant of any interest in the Aircraft, or the Trust Estate except for costs and expenses incurred as a result of an Alteration by Lesseesuch Transfer, the entry into if such Transfer arises directly from a New Lease under Section 40 Event of this Agreement or any severance of this Agreement under Section 41, the determination Default that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termsshall have occurred and be continuing;
(iie) To the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition extent attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group Indemnitee or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3related Indemnitee (as defined below) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such person by reason of its interest in whole the Aircraft or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viiif) any change in Law enactedIn the case of First Security, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change extent attributable to matters enumerated in Lawthe proviso to Section 14;
(ixg) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(h) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(i) To the extent attributable to the offer or sale by such Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, the Trust Estate or the Trust Agreement or any similar interest, in violation of the Securities Act or other applicable federal, state or foreign securities Laws (other than any offer or sale thereof caused by the acts or omissions of Lessee);
(i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to the failure of the Sprint GroupMortgagee to distribute funds received and distributable by it in accordance with the Trust Indenture, (ii) with respect to any Indemnitee (other than the Owner Trustee), to the extent attributable to the failure of the Owner Trustee to distribute funds received and distributable by it in accordance with the Trust Agreement, (iii) with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iv) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (v) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (vi) with respect to Owner Trustee, to the extent attributable to the negligence or willful misconduct of Owner Trustee in the distribution of funds received and distributable by it in accordance with the Trust Agreement, (vii) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, and (viii) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements.
(k) Other than during the continuation of a Lease Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Lessee or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(l) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Lessee;
(m) To the extent that it is an ordinary and usual operating or overhead expense;
(n) With respect to the Owner Participant or the Owner Trustee, or any single Sprint Group Memberrelated Indemnitee, to have sufficient income or Tax liability the extent attributable to benefit from the Federal Income Tax Benefits;
(x) deregistration of the inclusion of income by a Sprint Group Member Aircraft under the Act as a result of the reversion Owner Participant's or Owner Trustee's (or any related Indemnitee of Alterations made by Lessee to Lessor at the end either) not being a Citizen of the Term;
United States as a result of any act (xiother than reregistration of the Aircraft pursuant to Section 7.1.2 of the Lease) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade Owner Participant or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence ofOwner Trustee, or any consequence of, the prepayment related Indemnitee of either of the Rent, or foregoing (not taken at the application of Section 467 request of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xvo) For any Lessor Lien attributable to such Indemnitee or any related Indemnitee;
(p) If another provision of an Operative Agreement or a Pass Through Agreement specifies the breach extent of Lessee's responsibility or inaccuracy of any representationobligation with respect to such Expense, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant arising from other than failure of Lessee to comply with such specified responsibility or an Affiliate under the Transaction Documents)obligation;
(xviq) any exclusion under Section 39(a)(4To the extent it is a Transaction Expense;
(r) To the extent constituting principal, Make-Whole Amount or interest on the Equipment Notes attributable solely to an Event of Default not constituting a Lease Event of Default; or
(s) To the extent incurred by or asserted against an Indemnitee as a result of any Cross-Defaulted Master Lease and Sublease."prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975(c)(1)
Appears in 2 contracts
Sources: Participation Agreement (Continental Airlines Inc /De/), Participation Agreement (Continental Airlines Inc /De/)
Exceptions. Notwithstanding any provision anything to the contrary in Section 6.1 or Section 6.3, but subject to compliance with the remainder of this Section 39(a) to Article VI, nothing contained in this Agreement shall prevent the contrary, Lessee will not be required to make any payment to any Tax Indemnitee in respect Company or its Board of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the followingDirectors from:
(i) other than as complying with its disclosure obligations under applicable Law or the rules and policies of the NYSE, from taking and disclosing to its stockholders a result of an Alteration position contemplated by Lessee, Rule 14d-9 or Rule 14e-2(a) promulgated under the entry into a New Lease under Section 40 of this Agreement Exchange Act (or any severance similar communication to stockholders in connection with the making or amendment of this Agreement under Section 41a tender offer or exchange offer), making a “stop-look-and-listen” communication to the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members stockholders of the Sprint Group, directly Company pursuant to Rule 14d-9(f) under the Exchange Act (or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not any similar communications to the owners or sublessors stockholders of the Leased PropertyCompany) or from making any legally required disclosure to stockholders with regard to the Transactions or an Acquisition Proposal; provided, or that Section 467 (x) such disclosure includes an express reaffirmation of the Code does Recommendation, without any amendment, withdrawal, alteration, modification or qualification thereof and (y) this Section 6.1(b)(i) shall not apply be deemed to permit the Board of Directors of the Company to make a Change of Recommendation except to the extent otherwise permitted by this Agreement in accordance with its terms;Section 6.1.
(ii) prior to (but not after) obtaining the voluntary saleCompany Requisite Vote, assignment, transfer, contacting and engaging in limited communications with any Person or other disposition or group of Persons and their respective Representatives who has made an Acquisition Proposal after the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the date hereof that was not solicited in material breach of any covenant or obligation Section 6.1(a), solely for the purpose of clarifying such Acquisition Proposal and the Tax Indemnitee set forth in terms thereof and solely so that the Transaction Documents of or by any Company may inform itself about such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this AgreementAcquisition Proposal;
(iii) prior to (but not after) obtaining the gross negligence Company Requisite Vote, (A) contacting and engaging in any communications, negotiations or willful misconduct discussions with any Person or group of Persons and their respective Representatives who has made an Acquisition Proposal after the date hereof that was not solicited in material breach of Section 6.1(a) (which negotiations or discussions need not be solely for clarification purposes) and (B) providing access to the Company’s or any of its subsidiaries’ properties, books and records and providing information or data in response to a request therefor by a Person who has made a bona fide Acquisition Proposal after the date hereof that was not solicited in material breach of Section 6.1(a), in each case, if the Board of Directors (I) shall have determined in good faith, after consultation with its outside legal counsel and financial advisor(s), that, based on the information then available, such Tax IndemniteeAcquisition Proposal constitutes or would reasonably be expected to constitute, result in or lead to a Superior Proposal and (II) has received from the Person who has made such Acquisition Proposal an executed Acceptable Confidentiality Agreement; provided that the Company shall provide to Parent any material non-public information or data that is provided to any Person given such access that was not previously made available to Parent prior to or promptly following the time it is provided to such Person;
(iv) penaltiesprior to obtaining the Company Requisite Vote, interest, or additions to Tax making a Change of Recommendation (only to the extent based upon issues unrelated to the transactions contemplated permitted by this Agreement and related documents;Section 6.1(c)(i) or Section 6.1(c)(ii)); or
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group resolving, authorizing, committing or any Sprint Group Member timely or properly agreeing to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in take any of the Transaction Documents (except foregoing actions, only to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under actions would be permitted by the Transaction Documentsforegoing clauses (i) through (iv);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Sublease.
Appears in 2 contracts
Sources: Merger Agreement (CorePoint Lodging Inc.), Merger Agreement (CorePoint Lodging Inc.)
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary8.1.1, Lessee will Owner shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 8.1.1 in respect of any Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax Loss benefit, whether or not Owner is required to indemnify therefor pursuant to Section 8.3;
(b) Except to the extent that any such Tax Loss occurs as a result attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of one or more its obligations pursuant to the terms of the following:
(iOperative Agreements) other than as a result of an Alteration by Lessee, that occur after the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement Trust Indenture is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply required to this Agreement be terminated in accordance with its terms;
Section 11.01 of the Trust Indenture; provided, that nothing in this clause (iib) the voluntary sale, assignment, transfer, shall be deemed to exclude or other disposition limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the for damages from Owner for breach of any covenant or obligation of the Tax Indemnitee set forth Owner's covenants contained in the Transaction Documents of Operative Agreements or by to release Owner from any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(Cc) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note or interest therein, except for out-of-pocket costs and expenses incurred as a default by Lessee and/or result of any such Transfer pursuant to the exercise of remedies under this any Operative Agreement;
(iiid) [Intentionally Omitted]
(e) To the extent attributable to the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group Indemnitee or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3related Indemnitee (as defined below) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such person by reason of its interest in whole the Aircraft or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viiif) [Intentionally Omitted]
(g) To the extent attributable to the incorrectness or breach of any change representation or warranty of such Indemnitee or any related Indemnitee contained in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply made pursuant to any (1) change in tax rates applicable to the making of Operative Agreement or any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in LawPass Through Agreement;
(ixh) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(i) To the extent attributable to the offer or sale by such Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of Owner);
(i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to the failure of the Sprint GroupMortgagee to distribute funds received and distributable by it in accordance with the Trust Indenture, or (ii) with respect to any single Sprint Group MemberIndemnitee (other than the Subordination Agent), to have sufficient income the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (v) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or Tax liability willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (viii) with respect to benefit from the Federal Income Tax BenefitsSubordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (x) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement, and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement;
(xk) Other than during the inclusion continuation of income an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested or consented to in writing by Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(l) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner;
(m) To the extent that such expense is a Sprint Group Member loss of future profits of, a cost or expense unreasonably incurred by, or an ordinary and usual operating or overhead expense of, such Indemnitee;
(n) [Intentionally Omitted]
(o) For any Lien in violation of the Operative Agreements attributable to such Indemnitee or any related Indemnitee;
(p) If another provision of an Operative Agreement or a Pass Through Agreement specifies the extent of Owner's responsibility or obligation with respect to such Expense, to the extent arising from other than failure of Owner to comply with such specified responsibility or obligation;
(q) To the extent incurred by or asserted against an Indemnitee as a result of any "prohibited transaction", within the reversion meaning of Alterations made by Lessee to Lessor at the end Section 406 of ERISA or Section 4975(c)(1) of the Term;Code; or
(xir) a determination that Sprint is not holding the Leased Property For any loss attributable to, arising from or in the ordinary course of a trade connection with any inspections or business inspection rights arising from or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or in connection with any consequence of, the prepayment of the Rent, Operative Agreements or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 Transactions. For purposes of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by 8.1, a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of Person shall be considered a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss "related" Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any period occurring after (and not simultaneously with) (1) the expiration such Affiliate or earlier termination a successor or permitted assignee of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseforegoing.
Appears in 2 contracts
Sources: Participation Agreement (Atlas Air Inc), Participation Agreement (Atlas Air Inc)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Stockholder will not be required to make comply with Section 1.3(a) above in connection with any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the followingproposed Drag-Along Transaction unless:
(i) other than as a result any representations and warranties to be made by such Stockholder in connection with the Drag-Along Transaction are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (A) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of an Alteration by Lesseeall liens and encumbrances, (B) the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members obligations of the Sprint GroupStockholder in connection with the Drag-Along Transaction have been duly authorized, directly or indirectly through one or more entities that if applicable, (C) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Drag-Along Offeror and are classified as partnerships or disregarded entities for federal income tax purposes, are not enforceable against the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement Stockholder in accordance with its their respective terms, and (D) neither the execution and delivery of documents to be entered into in connection with the Drag-Along Transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency by which such Stockholder is subject or bound;
(ii) the voluntary sale, assignment, transfer, or other disposition or Stockholder shall not be liable for the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach inaccuracy of any covenant representation or obligation of the Tax Indemnitee set forth in the Transaction Documents of or warranty made by any such Tax Indemnitee or any of its Affiliatesother Person in connection with the Drag-Along Transaction, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this AgreementCompany;
(iii) the gross negligence or willful misconduct liability for indemnification, if any, of such Tax IndemniteeStockholder in the Drag-Along Transaction and for the inaccuracy of any representations and warranties made by the Company in connection with such Drag-Along Transaction, is several and not joint with any other Person, and is pro rata in accordance with the consideration received by such Stockholder;
(iv) penaltiesthe Stockholder shall not, interestin connection with such Drag-Along Transaction, be required to sign a non-compete agreement or additions agree to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documentsany non-compete covenant;
(v) Lessee's exercise liability shall be limited to the amount of the purchase option provided consideration actually paid to such Stockholder in Section 36 of this Agreement;connection with such Drag-Along Transaction; and
(vi) upon the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure consummation of the Tax Indemnitee to have taken all the actionsDrag-Along Transaction, if any, required each holder of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole each class or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date series of the Agreement to Lease Company’s stock will receive the same form and Sublease, provided that this exclusion shall not apply to any (1) change amount of consideration for each of its Shares of such class or series as is received by each other holder in tax rates applicable to the making respect of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis each of its Shares of such same class or (b) respecting an Inclusion or (2) substitution or replacement series of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleasestock.
Appears in 2 contracts
Sources: Convertible Note Subscription Agreement, Stockholders Agreement (Quadrant Biosciences Inc)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforgoing, Lessee a Shareholder will not be required to make comply with Section 2.2 above in connection with any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more proposed Sale of the followingCompany (the “Proposed Sale”) unless:
(a) any representations and warranties to be made by such Shareholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) other than as a result the Shareholder holds all right, title and interest in and to the Shares such Shareholder purports to hold, free and clear of an Alteration by Lesseeall liens and encumbrances, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation obligations of the Tax Indemnitee set forth Shareholder in connection with the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliatestransaction have been duly authorized, in either caseif applicable, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence documents to be entered into by the Shareholder have been duly executed by the Shareholder and delivered to the acquirer and are enforceable against the Shareholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Shareholder’s obligations thereunder, will cause a breach or willful misconduct violation of such Tax Indemniteethe terms of any agreement, law or judgment, order or decree of any court or governmental agency;
(ivb) penaltiesthe Shareholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, interest, or additions to Tax to other than the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documentsCompany;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vic) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability for indemnification, if any, required of it such Shareholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by Section 39(d) of this Agreement to contest the Loss Company in connection with such Proposed Sale, is several and such failure materially prejudices the ability to contestnot joint with any other Person, and Lessee has is pro rata in accordance with such Shareholder’s relative stock ownership of the Company (but reflecting the overall priority of the Common Shares and the Preferred Shares, with any theoretical indemnification liability to be treated as a reasonable basis reduction of the purchase price for such contest (other than a failure attributable in whole or part to the failure purpose of Lessee to follow allocating the procedures set forth in Section 39(d) of this Agreementproceeds thereof);
(viiid) liability shall be limited to the amount of consideration actually paid to such Shareholder in connection with such Proposed Sale, except with respect to (i) representations and warranties of such Shareholder related to authority, ownership and the ability to convey title to such Shares, (ii) any change in Law enacted, adopted covenants made by such Shareholder with respect to confidentiality or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable voting related to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis Proposed Sale or (biii) respecting an Inclusion claims related to fraud or (2) substitution or replacement of any Leased Property after a change in Lawwillful breach by such Shareholder, the liability for which need not be limited;
(ixe) upon the failure consummation of the Sprint GroupProposed Sale, or (i) each holder of the Preferred Shares and each holder of Common Shares will receive the same form of consideration for their Preferred Shares and their Common Shares, (ii) each holder of the Series B Preferred will receive the same amount of consideration per share of the Series B Preferred (iii) each holder of the Series A Preferred will receive the same amount of consideration per share of the Series A Preferred, (iv) each holder of the Common Shares will receive the same amount of consideration per share of the Common Shares, and (v) unless the holders of at least a majority of the Preferred Shares, voting together as a single class, elect otherwise by written notice given to the Company at least ten (10) days prior to the effective date of any single Sprint Group Membersuch Proposed Sale, the aggregate consideration receivable by all holders of the Series B Preferred, the Series A Preferred and the Common Shares shall be allocated among the holders of the Series B Preferred, the Series A Preferred and the Common Shares on the basis of the relative liquidation preferences to have sufficient income or Tax liability which the holders of the Series B Preferred, the Series A Preferred and the holders of the Common Shares are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Articles of Incorporation in effect immediately prior to benefit from the Federal Income Tax BenefitsProposed Sale;
(xf) subject to clause (e) above, requiring the inclusion same form of income consideration to be received by a Sprint Group Member the holders of the Common Shares and the Preferred Shares, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee to Lessor at such capital stock will be given the end same option; and
(g) in the case of the Term;
Investors, such Proposed Sale (xii) provides solely for cash consideration or marketable securities, (ii) provides for the payment of consideration in a determination that Sprint is not holding manner consistent with the Leased Property in the ordinary course provisions of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment Section 3 of Part A of the Rent, or the application Company’s Articles of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due Incorporation and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiiiiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase the Investors retain an equity interest in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to Company or any period occurring after (and successor entity following the consummation of such Proposed Sale, does not simultaneously with) (1) the expiration contain terms or earlier termination conditions which would require any approval of the Term with respect Preferred Shares pursuant to a Site or (2Section 2(b) the return to Sprint of Part A of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would Company’s Articles of Incorporation which has not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleasebeen obtained.
Appears in 2 contracts
Sources: Voting Agreement (Paylocity Holding Corp), Voting Agreement (Paylocity Holding Corp)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Stockholder will not be required to make comply with Section 3.2 above in connection with any payment proposed Sale of the Company (the “Proposed Sale”) unless:
(a) any representations and warranties to any Tax Indemnitee be made by such Stockholder in respect connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into by such Stockholder in connection with the transaction, nor the performance of such Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any Tax Loss agreement to which such Stockholder is a party, or any law or judgment, order or decree of any court or governmental agency that applies to such Stockholder;
(b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that any such Tax Loss occurs as a result funds may be paid out of one or more an escrow established to cover breach of representations, warranties and covenants of the following:
(i) other than Company as a result well as breach by any stockholder of an Alteration any of identical representations, warranties and covenants provided by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termsall stockholders);
(iic) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability for indemnification, if any, required of it such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by Section 39(d) the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of this Agreement an escrow established to contest cover breach of representations, warranties and covenants of the Loss and such failure materially prejudices the ability to contestCompany as well as breach by any stockholder of any of identical representations, warranties, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part covenants provided by all stockholders), and, subject to the failure provisions of Lessee the Restated Certificate related to follow the procedures set forth allocation of the escrow, is pro rata in Section 39(d) proportion to, and does not exceed, the amount of this Agreement)consideration paid to such Stockholder in connection with such Proposed Sale;
(viiid) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration paid to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;
(e) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale, unless the holders of at least a majority of the Preferred Stock, voting together as a single class on an as-converted to Common Stock basis, elect to not treat such event as a Deemed Liquidation Event by written notice given to the Company at least ten (10) days prior to the effective date of such Proposed Sale; provided, however, that, notwithstanding the foregoing, (A) the election to not treat such event as a Deemed Liquidation Event shall not apply to (1) the Series B Preferred Stock unless such electing holders include the holders of a majority of the outstanding Series B Preferred Stock, voting or consenting together as a single class, in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale, or (2) the Series C Preferred Stock unless such electing holders include the holders of at least two-thirds (2/3rds) of the outstanding Series C Preferred Stock, voting or consenting together as a single class, in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale, or (B) if the consideration to be paid in exchange for a Key Holder’s Shares or an Investor’s Shares, as applicable, pursuant to this Section 3.3(e) includes any change securities and due receipt thereof by such Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities or (y) the provision to such Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in Law enactedan offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, adopted the Company may cause to be paid to any such Key Holder or promulgated on Investor in lieu thereof, against surrender of such Key Holder’s Shares or after such Investor’s Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the Agreement to Lease and Subleaseissuance of such securities in exchange for such Key Holder’s Shares or such Investor’s Shares, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Lawas applicable;
(ixf) subject to clause (e) above, requiring the failure same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Sprint Group, or any single Sprint Group Member, Company are given an option as to have sufficient income or Tax liability the form and amount of consideration to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee such capital stock will be given the same option; provided, however, that nothing in this Section 3.3(f) shall entitle any holder to Lessor at receive any form of consideration that such holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the end Company’s stockholders; and
(g) the Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including, without limitation, any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseCompany.
Appears in 2 contracts
Sources: Voting Agreement (Caribou Biosciences, Inc.), Voting Agreement (Caribou Biosciences, Inc.)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contrary, Lessee will not be required to make any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the followingforegoing:
(i) other than as a result of an Alteration by Lessee, Without the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members prior written consent of the Sprint GroupMajority Series G Holders, directly or indirectly through one or more entities no Series G Stockholder that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors is a Drag Along Stockholder will be required to comply with Section 4.2(a) above in connection with any proposed Sale of the Leased PropertyCompany (the “Proposed Sale”) unless each Series G Stockholder would reasonably be expected to receive, or that Section 467 in connection with such Proposed Sale, an amount in respect of each share of Series G Preferred Stock held by such Series G Stockholder at least equal to the Code does not apply to this Agreement Series G Liquidation Preference (as defined in accordance with its terms;the Charter); and
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable No Drag-Along Stockholder will be required to the bankruptcy, insolvency or the breach of comply with Section 4.2(a) above in connection with any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition Proposed Sale unless:
(A) contemplated any representations and warranties to be made by the Transaction Documents; such Drag-Along Stockholder (B) otherwise resulting from the exercise other than representations and warranties being made by any Sprint Group Member a Drag-Along Stockholder in his or her capacity as a current or former employee of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax consultant to the extent based upon issues unrelated Company) in connection with the Proposed Sale are limited to the transactions contemplated by this Agreement representations and warranties related documents;
(v) Lessee's exercise to authority, ownership of the purchase option provided in Section 36 shares of this Agreement;
(vi) the failure Common Stock and/or Preferred Stock held by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss such Drag-Along Stockholder and such failure materially prejudices the ability to contestconvey title to such Shares, including but not limited to representations and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided warranties that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination Drag-Along Stockholder holds all right, title and interest in and to the Shares such Drag-Along Stockholder purports to hold, free and clear of the Term with respect to a Site or all liens and encumbrances, (2) the return to Sprint obligations of the Leased Property related Drag-Along Stockholder in connection with the transaction have been duly authorized, if applicable, (3) the documents to be entered into by the Drag-Along Stockholder have been duly executed by the Drag-Along Stockholder and delivered to the acquirer and are enforceable against the Drag-Along Stockholder in accordance with their respective terms and (4) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Drag-Along Stockholder’s obligations thereunder, will cause a Sitebreach or violation of the terms of any agreement, in either case other than interestlaw or judgment, fines, penalties and additions order or decree of any court or governmental agency applicable to tax resulting from a Tax Loss that would not be excluded under this clause (xvi)such Drag-Along Stockholder;
(xvB) the breach or Drag-Along Stockholder shall not be liable for the inaccuracy of any representation, representation or warranty or covenant made by any Sprint Group Member other person in any of connection with the Transaction Documents Proposed Sale other than the Company (except to the extent such that funds may be paid out of an escrow established to cover breach or inaccuracy is attributed to a of representations, warranties and covenants of the Company as well as breach or inaccuracy by any stockholder of any representationof identical representations, warranty or covenant of Lessee or warranties and covenants provided by all stockholders (an Affiliate under the Transaction Documents“Escrow”));
(xviC) any exclusion under Section 39(a)(4) liability for indemnification, if any, of the Drag-Along Stockholder for the inaccuracy of any Crossrepresentations and warranties, or for the breach of any covenant, made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other person (except to the extent that funds may be paid out of an Escrow) and is pro rata in proportion to, and does not exceed, the aggregate consideration receivable by such Drag-Defaulted Master Lease Along Stockholder (whether directly or out of an Escrow) in the Proposed Sale;
(D) liability shall be limited to the amount of consideration actually paid to such Drag-Along Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Drag-Along Stockholder, the liability for which need not be limited as to such Drag-Along Stockholder;
(E) upon the consummation of the Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and SubleaseCommon Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences and amounts to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Liquidation Event (assuming for this purpose that the Proposed Sale is a Liquidation Event even if it is structured as a Stock Sale) in accordance with the Charter in effect immediately prior to the Proposed Sale; and
(F) the Proposed Sale does not result in such Preferred Stockholder (or affiliate thereof) having any obligation to agree to any: (i) covenant not to compete; (ii) covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale (or affiliate thereof); or (iii) covenant to amend, modify or terminate any contracts or commercial arrangements to which such Preferred Stockholder (or affiliate thereof) is a party.
Appears in 2 contracts
Sources: Stockholders Agreement, Stockholders Agreement (Neuronetics, Inc.)
Exceptions. Notwithstanding any provision of this Section 39(a34(a) to the contrarycontrary (other than with respect to the loss of Tax Savings for which a T-Mobile Group Member has reimbursed or credited Tower Operator under Section 34(c), Lessee will in which case only the exceptions listed in clauses (C), (F) and (G) shall apply), Tower Operator shall not be required to make any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the following:
(iA) other Other than as a result of an Alteration by Lessee, the entry into a New Lease under event or circumstance described in Section 40 of this Agreement or any severance of this Agreement under Section 4134(a)(iii), the determination that this Agreement is not a "“true lease" ” for federal income tax Tax purposes or that the members of the Sprint T-Mobile Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Included Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(iiB) the The voluntary sale, assignment, transfer, transfer or other disposition or the involuntary sale, assignment, transfer, transfer or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Included Property or portion of such Leased Included Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, transfer or disposition (A1) contemplated by the Transaction DocumentsDocuments or to or at the request of Tower Operator; (B2) otherwise resulting from the exercise by any Sprint T-Mobile Group Member of its rights or performance of its obligations under the Transaction Documents; or (C3) attributable to in connection with a default by Lessee and/or Tower Operator or exercise of remedies under this Agreement;
(iiiC) the The gross negligence or willful misconduct of such Tax Indemnitee;
(ivD) penaltiesPenalties, interest, interest or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(vE) Lessee's Tower Operator’s exercise of the purchase option Purchase Option provided in Section 36 of this Agreement20 or Section 29(b)(i);
(viF) the The failure by the Sprint T-Mobile Group or any Sprint T-Mobile Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement34(a)(iii);
(viiG) any Any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d34(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has Tower Operator had a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement)contest;
(viiiH) any Any change in Law the Code enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, Master Agreement; provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Included Property after a change in Law;
(ixI) the The failure of the Sprint T-Mobile Group, or any single Sprint T-Mobile Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax BenefitsBenefits (it being understood that except as provided herein, this exclusion shall not affect the amount of any indemnity to which an Indemnitee would otherwise be entitled);
(xJ) the The inclusion of income by a Sprint T-Mobile Group Member as a result of the reversion of Alterations Modifications made by Lessee Tower Operator to any T-Mobile Lessor at the end of the Term;
(xiK) Other than as a result of an event or circumstance described in Section 34(a)(iii), a determination that Sprint T-Mobile is not holding the Leased Included Property in the ordinary course of a trade or business or that Sprint T-Mobile did not enter into the transactions contemplated by the Transaction Documents for profit;
(xiiL) the The existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, ; provided that the Lessee Tower Operator makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H D and provided further provided, further, that this exclusion will shall not apply to the entry into a New Lease under Section 40 of this Agreement 21 following the default or any severance of this Agreement under Section 41breach by Tower Operator;
(xiiiM) any tax Any Tax election or Tax Position by a Sprint T-Mobile Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's Tower Operator’s indemnity obligations hereunder;
(xivN) a A Tax Loss with respect to any period occurring (1) before the Term with respect to a Site, (2) after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (23) after (and not simultaneously with) the return to Sprint T-Mobile of the Leased Included Property related to a Site, in either each case other than interest, fines, penalties and additions to tax Tax resulting from a Tax Loss that would not be excluded under this clause (xviN);; and
(xvO) the The breach or inaccuracy of any representation, warranty or covenant by any Sprint T-Mobile Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee Tower Operator or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Sublease.
Appears in 2 contracts
Sources: Master Prepaid Lease (T-Mobile US, Inc.), Master Prepaid Lease (Crown Castle International Corp)
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary9.16(a), Lessee will Borrower shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 9.16(a) in respect of any Tax Loss to the extent that any Expense of such Tax Loss occurs as a result of one or more of the followingIndemnitee:
(i) other than as For any Taxes or a result loss of an Alteration by LesseeTax benefit, whether or not Borrower is required to indemnify therefor pursuant to the entry into a New Lease under Operative Agreements provided, however, this Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does 9.16(b)(i) shall not apply to this Agreement any Taxes taken into account in accordance making any payment on a net After-tax Basis or any claims of the Security Trustee (other than claims with its termsrespect to Taxes on fees payable to the Security Trustee);
(ii) With respect to any Indemnitee (other than the voluntary sale, assignment, transfer, or other disposition or Security Trustee) except to the involuntary sale, assignment, transfer, or other disposition extent attributable to the bankruptcyacts or events occurring prior thereto, insolvency acts or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates events (other than a sale, assignment, transfer, acts or disposition (A) contemplated events related to the performance or failure to perform by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance Borrower of its obligations under pursuant to the Transaction Documents; or (Cterms of the Operative Agreements) attributable that occur after the Lender is required to a default by Lessee and/or exercise direct the Security Trustee to release the Collateral pursuant to Section 2.8 of remedies under this Agreement;.
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;[*]
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;[*]
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;[*]
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;[*]
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);[*]
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;[*]
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;[*]
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;[*]
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;[*]
(xii) If another provision of a Operative Agreements specifies the existence ofextent of Borrower's responsibility or obligation with respect to such Expense, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 extent arising from other than failure of this Agreement Borrower to comply with such specified responsibility or any severance of this Agreement under Section 41obligation;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to To the extent of a resulting increase it is an expense dealt with in the Lessee's indemnity obligations hereunderSection 9.15;
(xiv) [*]
(xv) With respect to any Indemnitee (other than the Security Trustee) to the extent attributable to a Tax Loss Lender Lien or with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except Indemnitee to the extent such breach or inaccuracy is attributed attributable to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);Security Trustee Lien; and
(xvi) [*]. For purposes of this Section 9.16, a Person shall be considered a "related" Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such Indemnitee, a --------- * Confidential 41 director, officer, employee, agent, or servant of such Indemnitee or any exclusion under Section 39(a)(4) such Affiliate or a successor or permitted assignee of any Cross-Defaulted Master Lease and Subleaseof the foregoing.
Appears in 2 contracts
Sources: Loan Agreement (Republic Airways Holdings Inc), Loan Agreement (Republic Airways Holdings Inc)
Exceptions. Notwithstanding any provision of this anything in Section 39(a) to the contrary9.1(a), Lessee will Borrower shall not be required to make indemnify, protect, defend or hold harmless any payment Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Indemnitee in respect of any Tax Loss benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent that attributable to any Transfer (voluntary or involuntary) by or on behalf of such Tax Loss occurs Indemnitee of any Equipment Note or interest therein, except for out-of-pocket costs and expenses incurred as a result of one any such Transfer requested in writing by Borrower or more of the following:
(i) other than as a result of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement made or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable effected pursuant to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this any Operative Agreement;
(iii3) to the extent attributable to the gross negligence or willful misconduct of such Tax Indemnitee or any “Related Indemnitee;
” (iv) penalties, interest, or additions to Tax to as defined at the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 end of this Agreement;
(viSection 9.1(b)) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such Person solely by reason of its interest in whole the Aircraft or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viii4) to the extent attributable to the incorrectness or breach of any change representation or warranty, of such Indemnitee or any Related Indemnitee, contained in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply made pursuant to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in LawOperative Agreement;
(ix5) to the failure extent attributable to the failure, by such Indemnitee or any Related Indemnitee, to perform or observe any agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale, by such Indemnitee or any Related Indemnitee, of any interest in the Sprint GroupEquipment Notes, or any single Sprint Group Membersimilar interest, to have sufficient income in violation of the Securities Act or Tax liability to benefit from the Federal Income Tax Benefitsother applicable federal, state, or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(x7) (aa) with respect to any Indemnitee other than the inclusion Mortgagee, to the extent attributable to such Mortgagee’s failure to distribute funds received and distributable by it in accordance with the relevant Mortgage and (bb) with respect to the Mortgagee, to the extent attributable to its negligence or willful misconduct in the distribution of income funds received and distributable by it in accordance with the relevant Mortgage;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay (other than amounts required to be paid by such Indemnitee in connection with the enforcement of its rights and remedies hereunder and under any Operative Agreement) or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a Sprint Group Member cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent incurred by or asserted against an Indemnitee as a result of any “prohibited transaction” caused by it, within the reversion meaning of Alterations made by Lessee to Lessor at the end ERISA § 406 or Code § 4975(c)(1). For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliate, or a successor or permitted assign of any of the Term;
foregoing (xi) other than pursuant to a determination that Sprint is not holding Transfer). For the Leased Property in the ordinary course avoidance of a trade doubt, no Transferee of an Equipment Note shall be entitled under this Section 9.1 to be indemnified, protected, defended or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or held harmless against any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions Expense to the extent that any prior holder of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that such Equipment Note would not be excluded under this clause (xvi);
(xv) have been entitled to such rights and protections at the breach or inaccuracy time of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseits transfer.
Appears in 2 contracts
Sources: Loan Agreement (Airtran Holdings Inc), Loan Agreement (Airtran Holdings Inc)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Stockholder will not be required to make comply with Section 3.2 above in connection with any payment proposed Sale of the Company (the “Proposed Sale”), unless:
(a) any representations and warranties to any Tax Indemnitee be made by such Stockholder in respect connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any Tax Loss agreement, law or judgment, order or decree of any court or governmental agency;
(b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that any such Tax Loss occurs as a result funds may be paid out of one or more an escrow established to cover breach of representations, warranties and covenants of the following:
(i) other than Company as a result well as breach by any stockholder of an Alteration any of identical representations, warranties and covenants provided by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termsall stockholders);
(iic) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability for indemnification, if any, required of it such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by Section 39(d) the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of this Agreement an escrow established to contest cover breach of representations, warranties and covenants of the Loss Company as well as breach by any stockholder of any of identical representations, warranties and such failure materially prejudices the ability to contestcovenants provided by all stockholders), and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part subject to the failure provisions of Lessee the Restated Certificate related to follow the procedures set forth allocation of the escrow, is pro rata in Section 39(d) proportion to, and does not exceed, the amount of this Agreement)consideration paid to such Stockholder in connection with such Proposed Sale;
(viiid) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;
(e) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Series A Preferred Stock will receive the same amount of consideration per share of such series of Series A Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of at least a majority of the Series A Preferred Stock elect to receive a lesser amount by written notice given to the Company at least five (5) days prior to the effective date of any change such Proposed Sale, the aggregate consideration receivable by all holders of the Series A Preferred Stock and Common Stock shall be allocated among the holders of Series A Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Series A Preferred Stock and the holders of Common Stock are entitled in Law enacteda Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, adopted however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Section 3.3(e) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated on under the Securities Act, the Company may cause to be paid to any such Key Holder or after Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Key Holder or Investor would otherwise receive as of the date of the Agreement issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; and
(f) subject to Lease and Subleaseclause (e) above, provided that this exclusion shall not apply requiring the same form of consideration to any (1) change in tax rates applicable be available to the making holders of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis single class or (b) respecting an Inclusion or (2) substitution or replacement series of capital stock, if any holders of any Leased Property after a change in Law;
(ix) the failure capital stock of the Sprint Group, or any single Sprint Group Member, Company are given an option as to have sufficient income or Tax liability the form and amount of consideration to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee such capital stock will be given the same option; provided, however, that nothing in this Section 3.3(f) shall entitle any holder to Lessor at the end receive any form of the Term;
(xi) consideration that such holder would be ineligible to receive as a determination result of such holder’s failure to satisfy any condition, requirement or limitation that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply generally applicable to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseCompany’s stockholders.
Appears in 2 contracts
Sources: Voting Agreement (Lantern Pharma Inc.), Voting Agreement (Lantern Pharma Inc.)
Exceptions. Notwithstanding any provision of this The indemnity set forth in Section 39(a7(c)(i) to the contrary, Lessee will shall not be required to make any payment extend to any Tax Indemnitee in Loss with respect of any Tax Loss to such Indemnified Party (A) to the extent that such Loss is caused by acts, omissions or events which occur after full and final compliance by Lessee with all the terms of the Operative Agreements, (B) to the extent such Loss is caused by acts, omissions or events which occur following the earlier of: (I) acceptance of possession of the Airframe or any Engine or Part by Lessor or its designee pursuant to the terms of the Lease (other than pursuant to Section 15 thereof, in which case Lessee's liability under this Section 7(c) shall survive for so long as Lessor shall be entitled to exercise remedies under such Section 15), (II) the termination of the Term in accordance with Section 9 of the Lease, or (III) the transfer of title to the Aircraft to Lessee (or its designee) pursuant to Section 10.1.4 or Section 18.2 of the Lease, (C) to the extent that such Loss is a Tax or a loss of tax benefits, whether or not Lessee is required to indemnify therefor pursuant to Section 7(b) hereof, (D) to the extent that such Loss occurs as is caused by the willful misconduct or gross negligence of such Indemnified Party (other than willful misconduct or gross negligence imputed to such Indemnified Party solely by reason of its interest in the Aircraft) or any material misrepresentation or violation or breach of any obligations of such Indemnified Party contained in the Operative Agreements then in force unless such misrepresentation, violation or breach is a result of one or more Lessee's failure to comply with the terms of the following:
(i) other than as any Operative Agreement to which it is a result of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Propertyparty, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(iiE) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any extent such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than Loss is associated with a sale, assignmentassignment or transfer by such Indemnified Party of its respective interest in the Aircraft, transfer, the Certificates or disposition the transactions contemplated hereby (Aother than (1) contemplated as required by the Transaction Documents; Operative Agreements and (B2) otherwise resulting from during the exercise by any Sprint Group Member continuance of its rights a Lease Default (of the type described in Section 14.1 or performance 14.5 of its obligations under the Transaction Documents; Lease) or (C) attributable to a default by Lessee and/or Lease Event of Default or the exercise of remedies under this Agreement;
(iiithe Lease). This Section 7(c) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise does not constitute a guarantee of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group useful life or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure residual value of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has Aircraft or a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided guarantee that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion Certificates will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleasepaid.
Appears in 2 contracts
Sources: Participation Agreement (Southwest Airlines Co), Participation Agreement (Southwest Airlines Co)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Stockholder will not be required to make comply with Section 3.2 above in connection with any payment proposed Sale of the Company (the “Proposed Sale”), unless:
(a) any representations and warranties to any Tax Indemnitee be made by such Stockholder in respect connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any Tax Loss agreement, law or judgment, order or decree of any court or governmental agency;
(b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that any such Tax Loss occurs as a result funds may be paid out of one or more an escrow established to cover breach of representations, warranties and covenants of the following:
(i) other than Company as a result well as breach by any stockholder of an Alteration any of identical representations, warranties and covenants provided by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termsall stockholders);
(iic) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability for indemnification, if any, required of it such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by Section 39(d) the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of this Agreement an escrow established to contest cover breach of representations, warranties and covenants of the Loss Company as well as breach by any stockholder of any of identical representations, warranties and such failure materially prejudices the ability to contestcovenants provided by all stockholders), and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part subject to the failure provisions of Lessee the Restated Certificate related to follow the procedures set forth allocation of the escrow, is pro rata in Section 39(d) proportion to, and does not exceed, the amount of this Agreement)consideration paid to such Stockholder in connection with such Proposed Sale;
(viiid) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders subject to the immediately preceding parenthetical but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to actual fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;
(e) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) subject to clause (g) below, unless the holders of at least a majority of the Preferred Stock elect to receive a lesser amount by written notice given to the Company at least ten (10) days prior to the effective date of any change such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in Law enacteda Deemed Liquidation Event (assuming and treating for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, adopted however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Shares, Investor Shares or Common Stock Investor Shares, whether Preferred Stock or Common Stock, as applicable, pursuant to this Section 3.3(e) includes any securities and due receipt thereof by any Key Holder, Investor or Common Stock Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Key Holder, Investor or Common Stock Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated on under the Securities Act, the Company may cause to be paid to any such Key Holder, Investor or after Common Stock Investor in lieu thereof, against surrender of the Key Holder Shares, Investor Shares or Common Stock Investor Shares, whether Preferred Stock or Common Stock, as applicable, which would have otherwise been sold by such Key Holder, Investor or Common Stock Investor, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Key Holder, Investor or Common Stock Investor would otherwise receive as of the date of the Agreement to Lease and Subleaseissuance of such securities in exchange for the Key Holder Shares, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis Investor Shares or (b) respecting an Inclusion Common Stock Investor Shares, whether Preferred Stock or (2) substitution or replacement of any Leased Property after a change in LawCommon Stock, as applicable;
(ixf) subject to clause (e) above, requiring the failure same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Sprint Group, or any single Sprint Group Member, Company are given an option as to have sufficient income or Tax liability the form and amount of consideration to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee such capital stock will be given the same option; provided, however, that nothing in this Section 3.3(f) shall entitle any holder to Lessor at receive any form of consideration that such holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the end of the TermCompany’s stockholders;
(xig) a determination that Sprint is not holding other than the Leased Property covenant to the provide the indemnification described in clause (d) above and to deliver the ordinary course shares of a trade or the Company at Closing (if applicable), other customary closing deliverables and other customary covenants reasonably necessary to facilitate the consummation of the Closing, no Stockholder shall be required to make any covenants as to such Stockholder’s actions, business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, operations or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause otherwise restrict the actions of such Stockholder (xviincluding, for example, any non-compete or similar provisions);
(xvh) notwithstanding anything in this Agreement to the breach or inaccuracy contrary, if the consideration to be paid to the Series B Preferred Stock in connection with the Proposed Sale is less than $6.23 per share (subject to appropriate adjustment in the event of any representationstock dividend, warranty stock split, combination or covenant by any Sprint Group Member in any other similar recapitalization), holders of a majority of the Transaction Documents (except Series B Preferred Stock consent to the extent such breach or inaccuracy Proposed Sale; and
(i) notwithstanding anything in this Agreement to the contrary, if the consideration to be paid to the Series B-1 Preferred Stock in connection with the Proposed Sale is attributed less than $6.75 per share (subject to a breach or inaccuracy appropriate adjustment in the event of any representationstock dividend, warranty stock split, combination or covenant other similar recapitalization), holders of Lessee or an Affiliate under a majority of the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseSeries B-1 Preferred Stock consent to the Proposed Sale.
Appears in 2 contracts
Sources: Preferred Stock Purchase Agreement (Ovid Therapeutics Inc.), Series B 1 Preferred Stock Purchase Agreement (Ovid Therapeutics Inc.)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforgoing, Lessee a Stockholder will not be required to make comply with Section 3.1 above in connection with any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more proposed Sale of the followingCompany (the “Proposed Sale”) unless:
(a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) other than as a result the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of an Alteration by Lesseeall liens and encumbrances, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation obligations of the Tax Indemnitee set forth Stockholder in connection with the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliatestransaction have been duly authorized, in either caseif applicable, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or willful misconduct violation of such Tax Indemniteethe terms of any agreement, law or judgment, order or decree of any court or governmental agency;
(ivb) penaltiesthe Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, interest, or additions to Tax to other than the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documentsCompany;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vic) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability for indemnification, if any, required of it such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by Section 39(d) of this Agreement to contest the Loss Company in connection with such Proposed Sale, is several and such failure materially prejudices the ability to contestnot joint with any other Person, and Lessee has a reasonable basis for such contest (other than a failure attributable is pro rata in whole or part proportion to the failure amount of Lessee consideration paid to follow such Stockholder in connection with such Proposed Sale (in accordance with the procedures set forth in Section 39(d) provisions of this Agreementthe Restated Certificate);
(viiid) any change liability shall be limited to such Stockholder’s pro rata share (determined in Law enacted, adopted or promulgated on or after proportion to proceeds received by such Stockholder in connection with such Proposed Sale in accordance with the date provisions of the Agreement Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to Lease and Subleaseall Stockholders but that in no event exceeds the amount of consideration actually paid to such Stockholder in connection with such Proposed Sale, provided that this exclusion shall except with respect to claims related to fraud by such Stockholder, the liability for which need not apply be limited as to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Lawsuch Stockholder;
(ixe) upon the failure consummation of the Sprint GroupProposed Sale, or (i) each holder of each series of the Company’s Preferred Stock and each holder of Common Stock will, subject to Section 3.1(g), receive the same form of consideration for their shares of Common Stock and Preferred Stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock, and (iv) unless the holders of at least a majority of the then outstanding shares of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock, voting together as a single class on an as-converted basis, elect otherwise by written notice given to the Company at least ten (10) days prior to the effective date of any single Sprint Group Membersuch Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to have sufficient income or Tax liability to benefit from which the Federal Income Tax Benefits;holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Restated Certificate; and
(xf) subject to clause (e) above, requiring the inclusion same form of income consideration to be received by a Sprint Group Member the holders of the Company’s Common Stock and Preferred Stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee to Lessor at such capital stock will be given the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleasesame option.
Appears in 2 contracts
Sources: Stockholders Agreement (Blueprint Medicines Corp), Stockholders Agreement
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Stockholder will not be required to make comply with Subsection 2.1 above in connection with any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more proposed Sale of the followingCompany (the “Proposed Sale”) unless:
(a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) other than as a result the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of an Alteration by Lesseeall liens and encumbrances, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation obligations of the Tax Indemnitee set forth Stockholder in connection with the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliatestransaction have been duly authorized, in either caseif applicable, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or willful misconduct violation of such Tax Indemniteethe terms of any agreement, law or judgment, order or decree of any court or governmental agency;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vib) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion Stockholder shall not apply to any (1) change in tax rates applicable to be liable for the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, representation or warranty or covenant made by any Sprint Group Member other Person in any of connection with the Transaction Documents Proposed Sale, other than the Company (except to the extent such that funds may be paid out of an escrow established to cover breach or inaccuracy is attributed to a of representations, warranties and covenants of the Company as well as breach or inaccuracy by any stockholder of any representationof identical representations, warranty or covenant of Lessee or an Affiliate under the Transaction Documentswarranties and covenants provided by all stockholders);
(xvic) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any exclusion representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; and
(d) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, and (ii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Stockholder Shares pursuant to this Subsection 2.3(c) includes any securities and due receipt thereof by any Stockholder would require under Section 39(a)(4applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Stockholder Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Company) of any Cross-Defaulted Master Lease and Subleasethe securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Stockholder Shares.
Appears in 2 contracts
Sources: Asset Acquisition Agreement (Cesca Therapeutics Inc.), Voting Agreement (Cesca Therapeutics Inc.)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Member will not be required to make comply with Section 10.07(b) above in connection with any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more proposed Sale of the followingCompany (the “Proposed Sale”) unless:
(i) other than as a result any representations and warranties to be made by such Member in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Units, including but not limited to representations and warranties that (A) the Member holds all right, title and interest in and to the Units such Member purports to hold, free and clear of an Alteration by Lesseeall liens and encumbrances, (B) the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members obligations of the Sprint GroupMember in connection with the transaction have been duly authorized, directly or indirectly through one or more entities that if applicable, (C) the documents to be entered into by the Member have been duly executed by the Member and delivered to the acquirer and are classified as partnerships or disregarded entities for federal income tax purposes, are not enforceable against the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement Member in accordance with its termstheir respective terms and (D) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Member’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;
(ii) the voluntary saleMember shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, assignment, transfer, other than for the inaccuracy of any representation or other disposition or warranty made by the involuntary sale, assignment, transfer, or other disposition attributable Company in connection with the Proposed Sale (except to the bankruptcy, insolvency or the extent that funds may be paid out of an escrow established to cover breach of any covenant or obligation representations, warranties and covenants of the Tax Indemnitee set forth in the Transaction Documents of or Company as well as breach by any such Tax Indemnitee or any of its Affiliates, in either case, Member of any of the Leased Property or portion of such Leased Property identical representations, warranties and covenants provided by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreementall Members);
(iii) the gross negligence or willful misconduct liability for indemnification, if any, of such Tax IndemniteeMember in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Members in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Member of any of identical representations, warranties and covenants provided by all Members), and subject to the provisions of this Agreement, and is pro rata in proportion to the amount of consideration paid to such Member in connection with such Proposed Sale (in accordance with the provisions of this Agreement related to the allocation of the escrow);
(iv) penaltiesa Member’s liability shall be limited to such Member’s pro rata share (determined based on the respective proceeds payable to each Member in connection with such Proposed Sale in accordance with the provisions of this Agreement) of a negotiated aggregate indemnification amount that applies equally to all Members but that in no event exceeds the amount of consideration actually paid to such Member in connection with such Proposed Sale, interestexcept with respect to claims of fraud by such Member, or additions the liability for which need not be limited as to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documentssuch Member;
(v) Lessee's exercise upon the consummation of the purchase option Proposed Sale: (A) except as provided in Section 36 10.07(b)(vi), each holder of each class or series of Units will receive the same form of consideration for their Units of such class or series as is received by other holders in respect of their Units of such same class or series of Units; and (B) the aggregate consideration receivable by all holders of Units shall be allocated among the holders of Series B Preferred Units, Series A Preferred Units, Common Units and Incentive Units in accordance with Section 8.01 of this AgreementAgreement as if such consideration were distributed to the Members pursuant thereto;
(vi) except as provided in Section 10.07(b)(b)(vi), subject to clause (v) above, requiring the failure by same form of consideration to be available to the Sprint Group holders of any single class or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) series of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsUnits, if any, required any holders of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part any Units are given an option as to the failure form and amount of Lessee consideration to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee such Units will be given the same option; and
(vii) no Member who is not an employee shall be required to Lessor at agree to any restrictive covenant in connection with the end Proposed Sale (including, without limitation, any covenant not to compete with or covenant not to solicit or hire customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Member’s capacity as a Member of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseCompany.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Apogee Therapeutics, Inc.), Limited Liability Company Agreement (Apogee Therapeutics, LLC)
Exceptions. Notwithstanding any provision of this The indemnity provided for in Section 39(a7.01(a) to the contrary, Lessee will ---------- shall not be required to make any payment extend to any Tax Indemnitee in respect Expense of any Tax Loss Indemnitee to the extent that any such Tax Loss occurs as a result of one or more of the followingit:
(i) is attributable to the willful misconduct or gross negligence of such Indemnitee (other than as a result gross negligence or willful misconduct imputed to such person by reason of an Alteration by Lessee, its interest in the entry into a New Lease under Section 40 of this Agreement Aircraft or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termstransaction documents);
(ii) except to the voluntary saleextent fairly attributable to acts or events occurring prior thereto, assignmentis attributable to acts or events (other than the performance by Lessee of its obligations pursuant to the terms of the Operative Agreements) which occur after the earlier of (i) the return of possession of the Aircraft to the Lessor or its designee in accordance with the Lease and (ii) if the Lessee is not required to return the Aircraft to the Lessor, transfertermination of the Lease and payment by the Lessee of all amounts then required to be paid by the Lessee pursuant to the terms of the Operative Agreements; provided that if the Lease has been terminated -------- pursuant to Section 17 thereof, or other disposition the indemnity provided in Section 7.01(a) hereof shall survive for so long as Lessor or the involuntary saleIndenture Trustee shall be exercising remedies under such Section 17); provided further, assignment, transfer, that -------- ------- nothing in this clause (ii) shall be deemed to exclude or other disposition attributable to the bankruptcy, insolvency limit any claim that any Indemnitee may have under Applicable Law by reason of an Event of Default or the for damages from Lessee for breach of any covenant or obligation of the Tax Indemnitee set forth Lessee's covenants contained in the Transaction Lessee Documents of or by to release Lessee from any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise Documents that expressly provide for performance after termination of remedies under this Agreementthe Term;
(iii) other than as expressly provided herein or in the gross negligence other Operative Agreements and other than a Tax arising out of any "prohibited transaction" within the meaning of Section 406 of ERISA or willful misconduct Section 4975(c) of such the Code, is a Tax Indemniteeor loss of a Tax benefit, whether or not the Lessee is required to indemnify therefor pursuant to Article 6 hereof or pursuant to the Tax Indemnity Agreement;
(iv) penaltiesis a cost or expense expressly required to be paid by such Indemnitee or its permitted transferees (and not by the Lessee) pursuant to (x) Sections 5.01(b), interest5.01(c), 5.01(e), 5.03(b), 5.03(c), 5.04(b), 5.04(c), 6.11, 7.03, 8.01(a) and 8.01(c) of this Agreement; and (y) Sections 3(d), 6, 12(f) and 14
(a) of the Lease and, in the case of clause (x) and (y) for which the Lessee is not otherwise obligated to reimburse such Indemnitee directly or additions to Tax indirectly pursuant to the extent based upon issues unrelated to the transactions contemplated by terms of any Operative Agreement (other than this Agreement and related documentsSection 7.01);
(v) Lessee's exercise is attributable to the incorrectness or breach by such Indemnitee of its representations or warranties, under any of the purchase option provided in Section 36 Operative Agreements except to the extent such incorrectness or breach was caused by a breach by Lessee of this any representation or warranty or by any failure of Lessee to perform any obligation under an Operative Agreement;
(vi) is attributable to the failure by such Indemnitee to perform any of its obligations under any of the Sprint Group Operative Agreements except to the extent such failure was caused by a breach by Lessee of any representation or warranty or by any Sprint Group Member timely or properly failure of Lessee to claim perform any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this obligation under an Operative Agreement;
(vii) any failure is, in the case of the Tax Indemnitee to have taken all the actionsOwner Participant, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure Lessor's Liens attributable in whole or part to the failure Owner Participant; in the case of Lessee the Owner Trustee, Lessor's Liens to follow the procedures set forth extent attributable to the Owner Trustee; in Section 39(d) the case of this Agreement)Trust Company, Lessor's Liens to the extent attributable to Trust Company; and in the case of the Indenture Trustee, Indenture Trustee's Liens;
(viii) any change is, in Law enacted, adopted or promulgated on or after the date case of the Agreement to Lease and SubleaseOwner Participant or the Owner Trustee, provided that this exclusion shall not apply to any (1) change in tax rates applicable attributable to the making offer or sale by such Indemnitee of any indemnity payment interest in the Aircraft, the Lessor's Estate or the Trust Agreement or any similar interest (including an offer or sale resulting from bankruptcy or other proceedings for a Tax Loss the relief of debtors in which such Indemnitee is the debtor), unless in each case such offer or sale shall occur (aA) respecting Federal Income Tax Benefits on an After-Tax basis pursuant to the exercise of remedies under Section 17 of the Lease or (bB) respecting an Inclusion pursuant to Section 5(b), 7(b), 7(c), 7(d), 7(e), 8, 12(b), 13(b) or 14 of the Lease or (2C) substitution or replacement of in connection with any Leased Property after a change in Lawother transfer required by the Operative Agreements;
(ix) in the failure case of the Sprint GroupOwner Participant, is an Expense relating to, resulting from, arising out of or in connection with a "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code resulting from the direct or indirect use of assets of any single Sprint Group MemberERISA Plan to acquire or hold Owner Participant's interest in the Trust Estate or in the case of any transferee of the Owner Participant referred to in Section 5.01(c), to have sufficient income or Tax liability purchase the Beneficial Interest pursuant to benefit from the Federal Income Tax BenefitsSection 5.01(c);
(x) except during the inclusion continuation of income an Event of Default, is attributable to any amendment to any of the Operative Agreements which is not (i) requested, or consented to, by the Lessee, (ii) required or made pursuant to the terms of any of the Operative Agreements or by Applicable Law or (iii) necessitated by the action or inaction of the Lessee;
(xi) constitutes the loss of future profits of such Indemnitee or an ordinary and usual overhead expense for such Indemnitee or its permitted transferees, except to the extent incurred in connection with an Event of Default;
(xii) is, in the case of any Noteholder, attributable to a disposition (voluntary or involuntary) by any Noteholder of all or any part of its interest in any Equipment Note or the Operative Agreements, other than a disposition during the continuance of or as a result of an Event of Default;
(xiii) in the case of any Noteholder, relates to or results from any pledge by a Sprint Group Member Noteholder of any interest in an Equipment Note held thereby;
(xiv) is, in the case of any Noteholder, solely in the case of Expenses resulting from or arising out of items or events described in Section 7.01(a)(i), an Expense arising as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course formation, incorporation, organization or domicile of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense Noteholder in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi)particular jurisdiction;
(xv) is, in the breach or inaccuracy case of any representationNoteholder, warranty attributable to any claim or covenant suit brought by one or more Indemnitees against any Sprint Group Member in any of Person, including the Transaction Documents (except Lessee, to the extent a final judgment is entered dismissing such breach claim or inaccuracy is attributed to a breach suit as being frivolous or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);without merit; and
(xvi) any exclusion under Section 39(a)(4) in the case of any Cross-Defaulted Master Lease Noteholder, relates to insurance maintained by or for the benefit of an Indemnitee which the Lessee is not required to maintain at its own cost and Subleaseexpense pursuant to Section 9 of the Lease.
Appears in 1 contract
Exceptions. Notwithstanding any Any other provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Section 39(a) to the contrary, Lessee will not be required to make any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the followingAgreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance expenses to any Indemnitee with respect to Claims initiated or brought voluntarily by Indemnitee and not by way of defense, except (i) other than as with respect to actions or proceedings to establish or enforce a result of an Alteration by Lessee, the entry into a New Lease right to indemnification under Section 40 of this Agreement or any severance of this Agreement other agreement or insurance policy or under Section 41the Certificate or Bylaws now or hereafter in effect relating to Claims for an Indemnification Event, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) in specific cases if the voluntary sale, assignment, transferBoard of Directors has approved the initiation or bringing of such Claim, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penaltiesas otherwise required under Sections 2.101, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement 2.103 and related documents;
(v) Lessee's exercise 2.113 of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group TBOC or any Sprint Group Member timely other statute or properly law, regardless of whether Indemnitee ultimately is determined to claim any Federal Income Tax Benefits be entitled to such indemnification, advance expense payment or to exclude income on insurance recovery, as the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;case may be; or
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion Claims Under Section 16(b). To indemnify lndemnitee for expenses and the payment of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) of the Exchange Act or any similar successor statute; or
(c) Claims Excluded Under Section 8.101 of the TBOC. To indemnify Indemnitee if (i) Indemnitee did not act in good faith or in a manner reasonably believed by such lndemnitee to be in or not opposed to the best interests of the Company, or (2ii) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration criminal action or earlier termination of the Term with respect proceeding, Indemnitee had reasonable cause to a Site believe Indemnitee's conduct was unlawful, or (2iii) lndemnitee shall have been adjudged to be liable to the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties Company unless and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except only to the extent the court in which such breach or inaccuracy is attributed to a breach or inaccuracy action was brought shall permit indemnification as provided in Section 8.101 of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseTBOC.
Appears in 1 contract
Exceptions. Notwithstanding clause 18.7(a), the Borrower, Lenders, the Agent and the Security Trustee (the Lenders, the Agent and the Security Trustee or any provision of them hereinafter in this Section 39(aclause referred to as the “Lending Parties”), as the context requires, shall be entitled to disclose the whole or any part of the Confidential Information:
(i) to any Lender, Agent or Security Trustee, Borrower or to their directors, officers, employees, servants, subcontractors, agents, auditors or professional advisers to the extent necessary to enable it or them to perform (or to cause to be performed) or to enforce any of its or their rights or obligations under any of the Project Documents, the Security Documents, this Facility Agreement and in respect of the Lending Parties all related documents or (as the case may be) to assess whether or not to become a Lender, Agent and/or Security Trustee;
(ii) when required to do so by law or regulation by or pursuant to the rules or any order having the force of law of any court, association or agency including without limitation the London Stock Exchange and/or the Johannesburg Stock Exchange or any successors thereof or other agency of competent jurisdiction or any governmental agency;
(iii) to the contraryextent that the Confidential Information has, Lessee will except as a result of a breach of confidentiality, become publicly available or generally known to the public at the time of such disclosure;
(iv) to the extent that the Confidential Information is already lawfully in the public domain and/or lawfully in the possession of the recipient or lawfully known to him prior to such disclosure;
(v) subject to the consent of the Borrower in the event that disclosure is by the Lending Parties and subject to the consent of the Agent (acting on the advice of the Lenders) in the event that disclosure is by the Borrower such consent in either case not to be required unreasonably withheld and/or delayed, to make any payment to any Tax Indemnitee the extent that it has acquired the Confidential Information from a third party who is not in respect breach of any Tax Loss obligation as to confidentiality to the other party;
(vi) to the extent permitted by any of the Project Documents, Facility Agreement, Security Documents or any related documents; or
(vii) subject to the consent of the Borrower in the event that disclosure is by the Lending Parties and subject to the consent of the Agent (acting on the advice of the Lenders) in the event that disclosure is by the Borrower such consent in either case not to be unreasonably withheld and/or delayed to the extent that any such Tax Loss occurs as a result of one or more of the following:
(i) other than as a result parties wishes to use any non-commercially sensitive Confidential Information for the purposes of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any marketing and/or promotion of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreementbusiness activities;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Sublease.
Appears in 1 contract
Exceptions. Notwithstanding any provision of this The indemnity provided for in Section 39(a---------- 7.01(a) to the contrary, Lessee will shall not be required to make any payment extend to any Tax Indemnitee in respect Expense of any Tax Loss Indemnitee to the extent that any such Tax Loss occurs as a result of one or more of the followingit:
(i) is attributable to the willful misconduct or gross negligence of such Indemnitee (other than as a result gross negligence or willful misconduct imputed to such person by reason of an Alteration by Lessee, its interest in the entry into a New Lease under Section 40 of this Agreement Aircraft or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termstransaction documents);
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition is attributable to the bankruptcy, insolvency acts or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates events (other than a sale, assignment, transfer, or disposition (A) contemplated the performance by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance Lessee of its obligations under pursuant to the Transaction Documentsterms of the Operative Agreements) which occur after the Aircraft is no longer part of the Lessor's Estate or, if the Aircraft remains a part of the Lessor's Estate, after the expiration of the Term (unless the Aircraft is being returned at such time, in which case after return of physical possession; provided that if the Lease has been terminated pursuant to -------- Section 17 thereof, the indemnity provided in Section 7.01(a) hereof shall survive for so long as Lessor or (C) attributable to a default by Lessee and/or exercise of the Indenture Trustee shall be exercising remedies under this Agreementsuch Section 17), or to acts or events which occur after return of possession of the Aircraft by the Lessee in accordance with the provisions of the Lease (subject to the foregoing proviso if the Lessor has terminated the Lease pursuant to Section 17 of the Lease);
(iii) is a Tax or loss of a Tax benefit, whether or not the gross negligence Lessee is required to indemnify therefor pursuant to Article 6 hereof or willful misconduct of such pursuant to the Tax IndemniteeIndemnity Agreement;
(iv) penaltiesis a cost or expense required to be paid by an Indemnitee or its permitted transferees (and not by the Lessee) pursuant to this Agreement or any other Operative Agreement and for which the Lessee is not otherwise obligated to reimburse such Indemnitee, interest, directly or additions to Tax indirectly pursuant to the extent based upon issues unrelated to the transactions contemplated by terms of this Agreement and related documentsor such other Operative Agreement;
(v) Lessee's exercise is attributable to the incorrectness or breach by such Indemnitee of its representations or warranties, under any of the purchase option provided in Section 36 of this AgreementOperative Agreements;
(vi) is attributable to the failure by such Indemnitee to perform any of its obligations under any of the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this AgreementOperative Agreements;
(vii) any failure is, in the case of the Tax Indemnitee to have taken all the actionsOwner Participant, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure Lessor's Liens attributable in whole or part to the failure Owner Participant; in the case of Lessee the Owner Trustee, Lessor's Liens to follow the procedures set forth extent attributable to the Owner Trustee; in Section 39(d) the case of this Agreement)Trust Company, Lessor's Liens to the extent attributable to Trust Company; and in the case of the Indenture Trustee, Indenture Trustee's Liens;
(viii) any change is, in Law enacted, adopted or promulgated on or after the date case of the Agreement to Lease and SubleaseOwner Participant or the Owner Trustee, provided that this exclusion shall not apply to any (1) change in tax rates applicable attributable to the making offer or sale by such Indemnitee of any indemnity payment interest in the Aircraft, the Lessor's Estate or the Trust Agreement or any similar interest (including an offer or sale resulting from bankruptcy or other proceedings for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis the relief of debtors in which such Indemnitee is the debtor), unless in each case such offer or (b) respecting an Inclusion or (2) substitution or replacement sale shall occur pursuant to the exercise of any Leased Property after a change in Lawremedies under Section 17 of the Lease;
(ix) is an Expense arising under or in connection with any "prohibited transaction", within the failure meaning of Section 406 of ERISA or Section 4975(c)(1) of the Sprint Group, Code or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefitssimilar provision of state law;
(x) except during the inclusion continuation of income by a Sprint Group Member as a result an Event of Default, is attributable to any amendment to any of the reversion Operative Agreements which is not requested by the Lessee or is not required or made pursuant to the terms of Alterations made by Lessee to Lessor at the end any of the TermOperative Agreements;
(xi) a determination that Sprint is not holding attributable to the Leased Property in exercise by any Indemnitee of any right to inspect the ordinary course Aircraft except with respect to any such inspection conducted while an Event of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;Default is continuing; and
(xii) constitutes the existence of, loss of future profits or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply losses attributable to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lesseesuch Indemnitee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseoverhead.
Appears in 1 contract
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary8.1.1, Lessee will Owner shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 8.1.1 in respect of any Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax Loss benefit, whether or not Owner is required to indemnify therefor pursuant to Section 8.3;
(b) Except to the extent that any such Tax Loss occurs as a result attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of one or more its obligations pursuant to the terms of the following:
(iOperative Agreements) other than as a result of an Alteration by Lessee, that occur after the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement Trust Indenture is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply required to this Agreement be terminated in accordance with its terms;
Section 11.01 of the Trust Indenture; provided, that nothing in this clause (iib) the voluntary sale, assignment, transfer, shall be deemed to exclude or other disposition limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the for damages from Owner for breach of any covenant or obligation of the Tax Indemnitee set forth Owner’s covenants contained in the Transaction Documents of Operative Agreements or by to release Owner from any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(Cc) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note or interest therein, except for out-of-pocket costs and expenses incurred as a default by Lessee and/or result of any such Transfer pursuant to the exercise of remedies under this any Operative Agreement;
(iiid) [Intentionally Omitted]
(e) To the extent attributable to the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group Indemnitee or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3related Indemnitee (as defined below) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such person by reason of its interest in whole the Aircraft or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viiif) [Intentionally Omitted]
(g) To the extent attributable to the incorrectness or breach of any change representation or warranty of such Indemnitee or any related Indemnitee contained in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply made pursuant to any (1) change in tax rates applicable to the making of Operative Agreement or any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in LawPass Through Agreement;
(ixh) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(i) To the extent attributable to the offer or sale by such Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of Owner);
(i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to the failure of the Sprint GroupMortgagee to distribute funds received and distributable by it in accordance with the Trust Indenture, or (ii) with respect to any single Sprint Group MemberIndemnitee (other than the Subordination Agent), to have sufficient income the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to Mortgagee, to the extent attributable to the negligence or Tax liability willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (v) with respect to benefit from the Federal Income Tax BenefitsSubordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, and (vi) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements;
(xk) Other than during the inclusion continuation of income an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(l) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner;
(m) To the extent that it is an ordinary and usual operating or overhead expense;
(n) [Intentionally Omitted]
(o) For any Lien attributable to such Indemnitee or any related Indemnitee;
(p) If another provision of an Operative Agreement or a Sprint Group Member Pass Through Agreement specifies the extent of Owner’s responsibility or obligation with respect to such Expense, to the extent arising from other than failure of Owner to comply with such specified responsibility or obligation; or
(q) To the extent incurred by or asserted against an Indemnitee as a result of any “prohibited transaction”, within the reversion meaning of Alterations made by Lessee to Lessor at the end Section 406 of ERISA or Section 4975(c)(1) of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 Code. For purposes of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by 8.1, a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of Person shall be considered a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss “related” Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any period occurring after (and not simultaneously with) (1) the expiration such Affiliate or earlier termination a successor or permitted assignee of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseforegoing.
Appears in 1 contract
Exceptions. Notwithstanding any provision of this Section 39(a) anything to the contrarycontrary herein, Lessee will the Company shall not be required obligated to make any payment advance Expenses or indemnify the Indemnitee pursuant to any Tax Indemnitee in this Agreement with respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the followingto:
(ia) other than Expenses for which the Indemnitee is indemnified pursuant to any directors and officers insurance policy purchased and maintained by the Company (as a result of an Alteration by Lessee, provided in Article IX). It is specifically understood that the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that indemnity provided in this Agreement is not in excess of any such directors and officers insurance policy and the Indemnitee will look first to the directors and officers’ insurance policy; or
(b) Remuneration paid to the Indemnitee if it shall be determined by a "true lease" final judgment or other final adjudication that such remuneration was in violation of law; or
(c) Indemnitee’s reimbursement to the Company of any bonus or other incentive-based or equity-based compensation previously received by Indemnitee or payment of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements under Section 304 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or Section 954 of the D▇▇▇-F▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act in connection with an accounting restatement of the Company or the payment to the Company of profits arising from the purchase or sale by Indemnitee of securities in violation of Section 306 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act); or
(d) Expenses incurred on account of any Proceeding in which judgment is rendered against the Indemnitee for federal income tax purposes an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934 and amendments to it or similar provisions of any federal, state or local law; or
(e) Expenses incurred on account of the Indemnitee’s conduct which is finally adjudged by a court of competent jurisdiction to have been, or which Indemnitee has admitted facts sufficient for the Independent Counsel or court to reasonably conclude that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any ’s conduct was: (1) change in tax rates applicable a breach of the duty of loyalty owed to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or Company, (2) substitution an act or replacement of any Leased Property after a change omission which was not in Law;
Good Faith, (ix3) the failure of the Sprint Groupan act or omission which involved intentional misconduct or, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination criminal Proceeding, a knowing violation of the Term with respect to a Site law, or (24) a transaction from which the return to Sprint Indemnitee derived an improper personal benefit; or
(f) If a final decision by a court of competent jurisdiction in the Leased Property matter shall determine that such indemnification is not lawful as against public policy; or
(g) Any income taxes, or any interest or penalties related to a Sitethem, in either case other than interest, fines, penalties and additions to tax resulting from respect of compensation received for services as a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleasedirector and/or officer.
Appears in 1 contract
Sources: Indemnification Agreement (Global Technologies LTD)
Exceptions. Notwithstanding any Any other provision of this Section 39(a) herein to the contrarycontrary notwithstanding, Lessee will the Company shall not be required to make any payment to any Tax Indemnitee in respect of any Tax Loss obligated pursuant to the extent that any such Tax Loss occurs as a result of one or more of the following:
(i) other than as a result of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) terms of this Agreement to contest the Loss and such failure materially prejudices the ability indemnify Indemnitee:
(a) against any Losses or Expenses, or to contestadvance Expenses to Indemnitee, with respect to Claims initiated or brought voluntarily by Indemnitee, and Lessee has not by way of defense (including, without limitation, affirmative defenses and counter-claims), except (i) Claims to establish or enforce a reasonable basis for such contest (other than a failure attributable in whole right to indemnification, contribution or part advancement with respect to the failure of Lessee to follow the procedures set forth in Section 39(d) of an Indemnification Event, whether under this Agreement), any other agreement or insurance policy, the Company's Organizational Documents of any Covered Entity, the laws of the State of Delaware or otherwise, or (ii) if the Company's Board of Directors has approved specifically the initiation or bringing of such Claim;
(viiib) against any change in Law enactedLosses or Expenses, adopted or promulgated on to advance Expenses to Indemnitee, with respect to Claims arising (i) with respect to an accounting of profits made from the purchase and sale (or after the date sale and purchase) by Indemnitee of securities of the Agreement Company within the meaning of Section 16(b) of the Exchange Act or (ii) for the payment of amounts required to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable be reimbursed to the making Company pursuant to Section 304 or 306 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended, or any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis rule or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Lawregulation promulgated pursuant thereto;
(ixc) if, and to the failure extent, that a court of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by competent jurisdiction enters a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination judgment that Sprint such indemnification is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence oflawful, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy judgment is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents)later reversed on appeal;
(xvid) for any exclusion under Section 39(a)(4) amounts paid in settlement of any Cross-Defaulted Master Lease Claim effected without the Company's prior written consent; or
(e) if, and Subleaseto the extent, that the amounts paid in settlement of any Claim were pursuant to a settlement approved by a court of competent jurisdiction and indemnification would be inconsistent with any condition with respect to indemnification expressly imposed by the court in approving the settlement.
Appears in 1 contract
Exceptions. Notwithstanding any Any other provision of this Section 39(a) herein to the contrarycontrary notwithstanding, Lessee will the Company shall not be required to make any payment to any Tax Indemnitee in respect of any Tax Loss obligated pursuant to the extent that any such Tax Loss occurs as a result of one or more of the following:
(i) other than as a result of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) terms of this Agreement to contest the Loss and such failure materially prejudices the ability indemnify Indemnitees:
(a) against any Losses or Expenses, or advance Expenses to contestIndemnitees, with respect to Claims initiated or brought voluntarily by Indemnitees, and Lessee not by way of defense (including, without limitation, affirmative defenses and counterclaims), except (i) Claims to establish or enforce a right to indemnification, contribution or advancement with respect to an Indemnification Event, whether under this Agreement, any other agreement or insurance policy, the Company’s Organizational Documents of any Covered Entity, the laws of the State of Delaware or otherwise, (ii) if the Company’s board of directors has a reasonable basis for approved specifically the initiation or bringing of such contest Claim. (other than a failure attributable iii) if such indemnification is expressly required to be made by law, or (iv) if such indemnification is provided by the Company, in whole or part its sole discretion, pursuant to the failure powers vested in the Company under the General Corporation Law of Lessee to follow the procedures set forth in Section 39(d) State of this Agreement)Delaware;
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion against any Losses or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint GroupExpenses, or any single Sprint Group Memberadvance Expenses to Indemnitees, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after proceeding instituted by Indemnitees to enforce or interpret this Agreement, if a court of competent jurisdiction determines that the material assertions made by Indemnitees in such proceeding were not made in good faith or were frivolous;
(and c) for any amounts paid in settlement of a proceeding unless the Company consents to such settlement, which consent shall not simultaneously withbe unreasonably withheld;
(d) (1) the expiration against any Losses or earlier termination of the Term Expenses, or advance Expenses to Indemnitees, with respect to a Site Claims arising (i) with respect to an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitees of securities of the Company within the meaning of Section 16(b) of the Exchange Act or (2ii) the return pursuant to Sprint Sections 304 or 306 of the Leased Property related to a Site▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, in either case other than interestas amended, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);or any rule or regulation promulgated pursuant thereto; or
(xve) the breach or inaccuracy of any representationif, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except and to the extent extent, that a court of competent jurisdiction renders a final, unappealable decision that such breach or inaccuracy indemnification is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleasenot lawful.
Appears in 1 contract
Sources: Indemnification Agreement (Markwest Hydrocarbon Inc)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Member will not be required to make comply with the terms of Section 8.5(ii) above in connection with any payment proposed Sale of the Company (the “Proposed Sale”) unless:
A. any representations and warranties to any Tax Indemnitee be made by such Member in respect connection with the Proposed Sale are limited to reasonable and customary representations and warranties for a company of similar size and type of business, including those related to (x) the Member’s related to authority, ownership and the ability to convey title to such Units, including but not limited to representations and warranties that (A) the Member holds all right, title and interest in and to the Units such Member purports to hold, free and clear of all liens and encumbrances, (B) the obligations of the Member in connection with the Proposed Sale have been duly authorized, if applicable, (C) the documents to be entered into by the Member have been duly executed by the Member and delivered to the acquirer and are enforceable against the Member in accordance with their respective terms and (D) neither the execution and delivery of documents to be entered into in connection with the Proposed Sale, nor the performance of the Member’s obligations thereunder, will cause a breach or violation of the terms of any Tax Loss agreement or Applicable Law, and (y) the Company’s provision of management services to Provider;
B. the Member shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than for the inaccuracy of any representation or warranty made by the Company in connection with the Proposed Sale (except to the extent that any such Tax Loss occurs as a result funds may be paid out of one or more an escrow established to cover breach of representations, warranties and covenants of the following:
(i) other than Company as a result of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified well as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, Member of any of the Leased Property or portion of such Leased Property identical representations, warranties and covenants provided by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreementall Members);
(iii) C. the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability for indemnification, if any, required of it such Member in the Proposed Sale and for the inaccuracy of any representations and warranties made by Section 39(d) the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company), and is pro rata in proportion to the amount of consideration paid to such Member in connection with such Proposed Sale (in accordance with the provisions of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part related to the failure allocation of Lessee the escrow);
D. the liability for indemnification shall be limited to follow such Member’s pro rata share (determined based on the procedures set forth respective proceeds payable to each Member in Section 39(d) connection with such Proposed Sale in accordance with the provisions of this Agreement)) of a negotiated aggregate indemnification amount that applies equally to all Members but that in no event exceeds the amount of consideration actually paid to such Member in connection with such Proposed Sale, except with respect to claims of fraud by such Member, the liability for which need not be limited as to such Member;
(viii) any change in Law enacted, adopted or promulgated on or after E. upon the date consummation of the Proposed Sale: (A) except as provided in Section 8.5(ii)F, each holder of each class or series of Units will receive the same form of consideration for their Units of such class or series as is received by other holders in respect of their Units of such same class or series of Units; and (B) the aggregate consideration receivable by all holders of Units shall be allocated among the Members in accordance with this Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable as if such consideration were distributed to the making Members pursuant thereto; and
F. except as provided in Section 8.5(ii)F, subject to clause (v) above, requiring the same form of consideration to be available to the holders of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis single class or (b) respecting an Inclusion or (2) substitution or replacement series of Units, if any holders of any Leased Property after a change in Law;
(ix) Units are given an option as to the failure form and amount of the Sprint Group, or any single Sprint Group Member, consideration to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee to Lessor at such Units will be given the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleasesame option.
Appears in 1 contract
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary9.1.1, Lessee will shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 9.1.1 in respect of any Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax Loss benefit, whether or not Lessee is required to indemnify therefor pursuant to Section 9.3 or the Tax Indemnity Agreement; PROVIDED, HOWEVER, this Section 9.1.1
(a) shall not apply to any taxes taken into account in making any payment on a net after tax basis;
(b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance or failure to perform by Lessee of its obligations pursuant to the terms of the Lessee Operative Agreements) that occur after the earlier of: (i) with respect to the Airframe, any Engine or any Part, the return of possession (it being understood that the date of the placement of the Aircraft in storage as provided in Section 5 of the Lease constitutes the date of return of the Aircraft under the Lease) of such Tax Loss occurs Airframe, Engine or Part pursuant to the terms of and in compliance with the Lease (other than pursuant to Section 15 thereof, in which case Lessee's liability under this Section 9.1 shall survive for so long as Lessor or Mortgagee shall be entitled to exercise remedies under such Section 15) or (ii) the termination of the Term in accordance with the Lease;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note or interest therein, except (i) for out-of-pocket costs and expenses incurred as a result of one or more any such Transfer pursuant to the exercise of remedies under any Operative Agreement resulting from a Lease Event of Default and (ii) as otherwise required by the terms of Section 2.13 of the following:Trust Indenture;
(id) other than To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of Owner Participant of any interest in the Aircraft, or the Trust Estate except for costs and expenses incurred as a result of an Alteration by Lesseesuch Transfer, the entry into if such Transfer arises directly from a New Lease under Section 40 Event of this Agreement or any severance of this Agreement under Section 41, the determination Default that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termsshall have occurred and be continuing;
(iie) To the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition extent attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group Indemnitee or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3related Indemnitee (as defined below) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such person by reason of its interest in whole the Aircraft or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viiif) any change in Law enactedIn the case of Wells Fa▇▇▇, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change extent attributable to matters enumerated in Lawthe proviso to Section 14;
(ixg) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(h) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(i) To the extent attributable to the offer or sale by such Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, the Trust Estate or the Trust Agreement or any similar interest, in violation of the Securities Act or other applicable federal, state or foreign securities Laws (other than any offer or sale thereof caused by the acts or omissions of Lessee);
(i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to the failure of the Sprint GroupMortgagee to distribute funds received and distributable by it in accordance with the Trust Indenture, (ii) with respect to any Indemnitee (other than the Owner Trustee), to the extent attributable to the failure of the Owner Trustee to distribute funds received and distributable by it in accordance with the Trust Agreement, (iii) with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iv) with respect to any Indemnitee (other than the Pass Through Trustee), to the extent attributable to the failure of the Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreement, (v) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (vi) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vii) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (viii) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (ix) with respect to Owner Trustee, to the extent attributable to the negligence or willful misconduct of Owner Trustee in the distribution of funds received and distributable by it in accordance with the Trust Agreement, (x) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (xi) with respect to the Pass Through Trustee, to the extent attributable to the negligence or willful misconduct of the Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreement, (xii) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement, and (xiii) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement.
(k) Other than during the continuation of a Lease Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Lessee or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(l) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Lessee;
(m) To the extent that it is an ordinary and usual operating or overhead expense;
(n) With respect to the Owner Participant or the Owner Trustee, or any single Sprint Group Memberrelated Indemnitee, to have sufficient income the extent attributable to the deregistration of the Aircraft under the Act as a result of Owner Participant's or Tax liability Owner Trustee's (or any related Indemnitee of either) not being a Citizen of the United States as a result of any act (other than reregistration of the Aircraft pursuant to benefit from Section 7.1.2 of the Federal Income Tax BenefitsLease) of Owner Participant or Owner Trustee, or any related Indemnitee of either of the foregoing (not taken at the request of the Lessee);
(xo) For any Lessor Lien attributable to such Indemnitee or any related Indemnitee;
(p) If another provision of an Operative Agreement or a Pass Through Agreement specifies the inclusion extent of income Lessee's responsibility or obligation with respect to such Expense, to the extent arising from other than failure of Lessee to comply with such specified responsibility or obligation;
(q) To the extent it is a Transaction Expense;
(r) To the extent constituting principal, Make-Whole Amount or interest on the Equipment Notes attributable solely to an Event of Default not constituting a Lease Event of Default; or
(s) To the extent incurred by or asserted against an Indemnitee as a Sprint Group Member result of any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code; or
(t) To the extent not included in the definition of Supplemental Rent as a result of the reversion provisions of Alterations made by Lessee to Lessor at the end clause (e) of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 such definition. For purposes of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by 9.1, a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of Person shall be considered a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss "related" Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any period occurring after (and not simultaneously with) (1) the expiration such Affiliate or earlier termination a successor or permitted assignee of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseforegoing.
Appears in 1 contract
Sources: Participation Agreement (Continental Airlines Inc /De/)
Exceptions. Notwithstanding any provision of in this Section 39(a) to Agreement, the contrary, Lessee will Company shall not be required obligated under this Agreement to make any indemnity in connection with any Proceeding (or any part of any Proceeding):
(a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy, indemnity provision, vote or otherwise, except with respect to any Tax excess beyond the amount paid;
(b) initiated by Indemnitee prior to a Change in respect Control, , including any Proceeding (or any part of any Tax Loss to Proceeding) initiated by Indemnitee against the extent that any such Tax Loss occurs as a result of one Company or more of the following:
its directors, officers, employees, agents or other indemnitees, unless (i) other than as a result the Company’s board of an Alteration by Lesseedirectors authorized the Proceeding (or the relevant part of the Proceeding) prior to its initiation; (ii) the Company provides the indemnification, in its sole discretion, pursuant to the entry into a New Lease powers vested in the Company under applicable law; (iii) indemnification is required to be made under Section 40 of 10(e); (iv) otherwise required by applicable law; or (v) indemnification is in connection with actions or Proceedings brought to establish or enforce a right to indemnification under this Agreement or any severance other agreement or insurance policy or under the Company’s articles of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes incorporation or that the members of the Sprint Group, directly bylaws now or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply hereafter in effect relating to this Agreement in accordance with its termssuch Proceeding;
(iic) the voluntary sale, assignment, transfer, for any acts or other disposition omissions or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach transactions from which a director may not be relieved of any covenant or obligation of the Tax Indemnitee liability as set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any exception to Section 204(a)(10) of the Leased Property California General Corporation Law or portion as to circumstances in which indemnity is expressly prohibited by Section 317 of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this AgreementCalifornia General Corporation Law;
(iiid) for an accounting or disgorgement of profits pursuant to Section 16(b) of the gross negligence or willful misconduct Securities Exchange Act of such Tax Indemnitee;
(iv) penalties1934, interestas amended, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise similar provisions of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group federal, state or any Sprint Group Member timely local statutory law or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionscommon law, if any, required of it by Section 39(d) of this Agreement Indemnitee is held liable therefor (including pursuant to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreementany settlement arrangements);
(viiie) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income Expenses incurred by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss Indemnitee with respect to any period occurring after (action in which Indemnitee did not act in good faith and not simultaneously with) (1) in a manner which Indemnitee reasonably believed to be in the expiration or earlier termination best interests of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi)Company;
(xvf) for any reimbursement of the breach or inaccuracy Company by Indemnitee of any representation, warranty bonus or covenant other incentive-based or equity-based compensation or of any profits realized by any Sprint Group Member in any Indemnitee from the sale of securities of the Transaction Documents (except Company, to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate required in each case under the Transaction DocumentsSecurities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”);, or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); or
(xvig) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseif otherwise prohibited by applicable law.
Appears in 1 contract
Exceptions. Notwithstanding the provisions of Section 5(a) hereof, in the event of Termination of Employment for "Cause" (as hereinafter defined) or the breach by the Optionee of Section 8(b) hereof or any provision covenant not to compete with the Company or any of this Section 39(a) its Subsidiaries to which the contraryOptionee is or becomes subject (a "Non-Compete Covenant"), Lessee will not be required to make any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the following:
(i) other than as a result of an Alteration by Lesseethe Optionee's right to purchase any Option Shares, the entry into a New Lease under Section 40 of this Agreement whether or any severance of this Agreement under Section 41not vested, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
shall immediately terminate and all rights thereunder shall cease and (ii) the voluntary sale, assignment, transfer, or other disposition or Company may require the involuntary sale, assignment, transfer, or other disposition attributable Optionee to pay to the bankruptcy, insolvency or Company the breach amount of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member gain realized as a result of the reversion of Alterations made exercise (measured by Lessee to Lessor at the end difference between the aggregate Fair Market Value on the date of the Term;
(xi) a determination that Sprint is not holding purchase of Common Shares and the Leased Property aggregate Option Price paid in the ordinary course respect of a trade or business or that Sprint did not enter into the transactions contemplated such purchase), in such manner and on such terms and conditions as may be required by the Transaction Documents for profit;
Company, and the Company shall be entitled to set-off the amount of any such gain against any amount owed to the Optionee by the Company or any Subsidiary. For purposes of this Agreement, "Cause" shall mean (xiii) the existence Optionee's willful and continued failure to substantially perform the Participant's duties to the Company or any of its Subsidiaries; (ii) the Optionee's conviction of, or plea of guilty or nolo contendere to, a felony or other crime involving moral turpitude; (iii) the Optionee's engagement in any consequence ofmalfeasance or fraud or dishonesty of a substantial nature in connection with the Participant's position with the Company or any of its Subsidiaries, or other willful act that materially damages the reputation of the Company or any of its Subsidiaries; (iv) the Optionee's breach of Section 8(b) hereof or a Non-Compete Covenant; or (v) the sale, transfer or hypothecation by the Optionee of Common Shares in violation of the Share Ownership Guidelines of the Company; provided, however, that no such act, failure to act or event that is capable of being cured by the Optionee shall be treated as “Cause” under this Agreement unless the Optionee has been provided a detailed, written statement of the basis for the Company’s belief that such act, failure to act or event constitutes “Cause” and have had at least thirty (30) days after receipt of such statement to cure such act, failure to act or event. Notwithstanding the foregoing, the prepayment definition of Cause any employment or severance agreement between the Company or any Subsidiary and the Optionee in effect at the time of termination of employment shall supersede the foregoing definition. For purposes of this Agreement, no act or failure to act shall be considered “willful” unless it is done, or failed to be done, in bad faith, and without reasonable belief that the act or failure to act was in the best interest of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseCompany.
Appears in 1 contract
Sources: Nonqualified Share Option Agreement (Platinum Underwriters Holdings LTD)
Exceptions. Notwithstanding any provision of this Section 39(a34(a) to the contrarycontrary (other than with respect to the loss of Tax Savings for which an AT&T Group Member has reimbursed or credited Tower Operator under Section 34(c), Lessee will in which case only the exceptions listed in clauses (C), (F) and (G) shall apply), Tower Operator shall not be required to make any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the following:
: (i) other A)Other than as a result of an Alteration by Lessee, the entry into a New Lease under event or circumstance described in Section 40 of this Agreement or any severance of this Agreement under Section 4134(a)(iii), the determination that this Agreement is not a "“true lease" ” for federal income tax Tax purposes or that the members of the Sprint AT&T Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Included Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
; (ii) the B)The voluntary sale, assignment, transfer, transfer or other disposition or the involuntary sale, assignment, transfer, transfer or other disposition attributable to the bankruptcy, insolvency a Bankruptcy Event or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Included Property or portion of such Leased Included Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, transfer or disposition (A1) contemplated by the Transaction DocumentsDocuments or to or at the request of Tower Operator; (B2) otherwise resulting from the exercise by any Sprint AT&T Group Member of its rights or performance of its obligations under the Transaction Documents; or (C3) attributable to in connection with a default by Lessee and/or Tower Operator or exercise of remedies under this Agreement;
; (iii) the C)The gross negligence or willful misconduct of such Tax Indemnitee;
; (iv) penaltiesD)Penalties, interest, interest or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
; (v) Lessee's E)Tower Operator’s exercise of the purchase option Purchase Option provided in Section 36 of this Agreement;
20; (vi) the F)The failure by the Sprint AT&T Group or any Sprint AT&T Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
34(a)(iii); (vii) any G)Any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d34(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has Tower Operator had a reasonable basis for such contest contest; (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any H)Any change in Law the Code enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, Master Agreement; provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Included Property after a change in Law;
; (ix) the I)The failure of the Sprint AT&T Group, or any single Sprint AT&T Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
Benefits (x) the inclusion of income by a Sprint Group Member it being understood that except as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence ofprovided herein, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will shall not apply to affect the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy amount of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except indemnity to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or which an Affiliate under the Transaction DocumentsIndemnitee would otherwise be entitled);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Sublease.; 48
Appears in 1 contract
Sources: Master Prepaid Lease
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary8.1.1, Lessee will Owner shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 8.1.1 in respect of any Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax Loss benefit, whether or not Owner is required to indemnify therefor pursuant to Section 8.3;
(b) Except to the extent that any such Tax Loss occurs as a result attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of one or more its obligations pursuant to the terms of the following:
(iOperative Agreements) other than as a result of an Alteration by Lessee, that occur after the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement Trust Indenture is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply required to this Agreement be terminated in accordance with its terms;
Section 11.01 of the Trust Indenture; provided, that nothing in this clause (iib) the voluntary sale, assignment, transfer, shall be deemed to exclude or other disposition limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the for damages from Owner for breach of any covenant or obligation of the Tax Indemnitee set forth Owner’s covenants contained in the Transaction Documents of Operative Agreements or by to release Owner from any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(Cc) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note or interest therein, except for out-of-pocket costs and expenses incurred as a default by Lessee and/or result of any such Transfer pursuant to the exercise of remedies under this any Operative Agreement;
(iiid) [Intentionally Omitted];
(e) To the extent attributable to the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group Indemnitee or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3related Indemnitee (as defined below) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such person by reason of its interest in whole the Aircraft or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viiif) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law[Intentionally Omitted];
(ixg) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(h) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(i) To the extent attributable to the offer or sale by such Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of Owner);
(i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to the failure of the Sprint GroupMortgagee to distribute funds received and distributable by it in accordance with the Trust Indenture, or (ii) with respect to any single Sprint Group MemberIndemnitee (other than the Subordination Agent), to have sufficient income the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to Mortgagee, to the extent attributable to the negligence or Tax liability willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (v) with respect to benefit from the Federal Income Tax BenefitsSubordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, and (vi) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements;
(xk) Other than during the inclusion continuation of income an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(l) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner;
(m) To the extent that it is an ordinary and usual operating or overhead expense;
(n) [Intentionally Omitted];
(o) For any Lien attributable to such Indemnitee or any related Indemnitee;
(p) If another provision of an Operative Agreement or a Sprint Group Member Pass Through Agreement specifies the extent of Owner’s responsibility or obligation with respect to such Expense, to the extent arising from other than failure of Owner to comply with such specified responsibility or obligation; or
(q) To the extent incurred by or asserted against an Indemnitee as a result of any “prohibited transaction”, within the reversion meaning of Alterations made by Lessee to Lessor at the end Section 406 of ERISA or Section 4975(c)(1) of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 Code. For purposes of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by 8.1, a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of Person shall be considered a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss “related” Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any period occurring after (and not simultaneously with) (1) the expiration such Affiliate or earlier termination a successor or permitted assignee of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseforegoing.
Appears in 1 contract
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee will a Shareholder shall not be required to make comply with Section 3.2 in connection with any payment proposed Sale of the Company (the “Proposed Sale”) unless:
(a) any representations and warranties to any Tax Indemnitee be made by such Shareholder in respect connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including representations and warranties that (i) the Shareholder holds all right, title and interest in and to the Shares such Shareholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Shareholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Shareholder have been duly executed by the Shareholder and delivered to the acquirer and are enforceable against the Shareholder in accordance with their respective terms, and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Shareholder’s obligations thereunder, will cause a breach or violation of the terms of any Tax Loss agreement, law or judgment, order or decree of any court or governmental agency;
(b) the Shareholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except that and only to the extent that any such Tax Loss occurs as a result funds may be paid out of one or more an escrow established to cover breach of representations, warranties and covenants of the following:Company as well as breach by any Shareholder of any representations, warranties and covenants provided by all Shareholders with respect to the Company);
(c) the liability for indemnification, if any, of such Shareholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Shareholders in connection with such Proposed Sale is several and not joint with any other Person (except that and only to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Shareholder of any representations, warranties and covenants provided by all Shareholders with respect to the Company), and subject to the provisions of the Articles related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Shareholder in connection with such Proposed Sale;
(d) liability shall be limited to such Shareholder’s applicable share (determined based on the respective proceeds payable to each Shareholder in connection with such Proposed Sale in accordance with the provisions of the Articles) of a negotiated aggregate indemnification amount that applies equally to all Shareholders but that in no event exceeds the amount of consideration otherwise payable to such Shareholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Shareholder, the liability for which need not be limited as to such Shareholder;
(e) upon the consummation of the Proposed Sale, (i) each holder of each class or series of Shares will receive the same form of consideration for their Shares of such class or series as is received by other than holders in respect of their Shares of such same class or series, (ii) each holder of Common Shares will receive the same amount of consideration per Common Share as is received by other holders in respect of their Common Shares, and (iii) the aggregate consideration receivable by all Shareholders shall be allocated among the Shareholders on the basis of the relative liquidation preferences to which the Shareholders are entitled in a result of an Alteration by Lessee, the entry into a New Lease under Section 40 of Deemed Liquidation Event (assuming for this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or purpose that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement Proposed Sale is a Deemed Liquidation Event) in accordance with its terms;
the Articles in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for any Shareholder’s Shares pursuant to this Section 3.3(e) includes any securities and due receipt thereof by any Shareholder would require under applicable law (i) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (ii) the voluntary saleprovision to any Shareholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to Accredited Investors, assignmentthe Company may cause to be paid to any such Shareholder in lieu thereof, transferagainst surrender of such Shareholders’ Shares, or other disposition or the involuntary salewhich would have otherwise been sold by such Shareholder, assignment, transfer, or other disposition attributable an amount in cash equal to the bankruptcy, insolvency or fair value (as determined in good faith by the breach of any covenant or obligation Board) of the Tax Indemnitee set forth in the Transaction Documents securities which such Shareholder would otherwise receive as of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement issuance of such securities in exchange for such Shareholder’s Shares; and
(f) subject to Lease and SubleaseSection 3.3(e), provided that this exclusion shall not apply to if any (1) change in tax rates applicable holders of any class or series of Shares are given an option as to the making form and amount of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, consideration to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee such class or series of Shares will be given the same option; provided, however, that nothing in this Section 3.3(f) shall entitle any holder to Lessor at the end receive any form of the Term;
(xi) consideration that such holder would be ineligible to receive as a determination result of such holder’s failure to satisfy any condition, requirement or limitation that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply generally applicable to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseShareholders.
Appears in 1 contract
Exceptions. Notwithstanding the provisions of Section 14(a) hereof, in the event of the Participant’s termination of employment with the Company or any provision of this Section 39(a) its subsidiaries prior to the contraryVesting Date (i) by the Company without “Cause” (as defined below), Lessee will not be required to make any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs (ii) as a result of one death or more disability, or (iii) upon the Participant’s retirement from the Company with the consent of the following:
Committee, the Participant shall be entitled to receive a payment in respect of the Awards on a prorated basis, based on the period of the Participant’s service with the Company and the performance levels achieved by the Company for the Performance Cycle as of the end of the fiscal quarter following the date of termination. For purposes hereof, the term “Cause” shall mean: (i) other than as a result of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement Participant’s willful and continued failure to substantially perform the Participant’s duties to the Company or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members subsidiaries of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
Company; (ii) the voluntary sale, assignment, transferParticipant’s conviction of, or other disposition plea of guilty or the involuntary salenolo contendere to, assignment, transfer, a felony or other disposition attributable to crime involving moral turpitude; (iii) the bankruptcy, insolvency Participant’s engagement in any malfeasance or fraud or dishonesty of a substantial nature in connection with the breach of any covenant or obligation of Participant’s position with the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee Company or any of its Affiliatessubsidiaries, in either case, of any or other willful act that materially damages the reputation of the Leased Property or portion of such Leased Property by any such Tax Indemnitee Company or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documentssubsidiaries; (Biv) otherwise resulting from the exercise by Participant’s breach of any Sprint Group Member restrictive covenants agreed to between the Participant and the Company or any subsidiaries of its rights or performance of its obligations under the Transaction DocumentsCompany; or (Cv) attributable the sale, transfer or hypothecation by the Participant, prior to a default by Lessee and/or exercise the payment in respect of remedies the Award hereunder, of Common Shares in violation of the Share Ownership Guidelines. Notwithstanding the foregoing, the Participant’s employment will be treated as having been terminated without Cause under this Agreement;
(iii) Agreement in the gross negligence event of any termination by the Company or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise any subsidiary of the purchase option provided in Section 36 of this Agreement;
(vi) the failure Company without “cause” or by the Sprint Group Participant for “good reason,” as such terms or comparable terms are defined under any employment agreement in effect from time to time between the Participant and the Company or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure subsidiary of the Tax Indemnitee to have taken all Company. Except as amended and modified hereby, the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date terms of the Award Agreement to Lease shall remain in full force and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseeffect.
Appears in 1 contract
Sources: Eip Award Agreement (Platinum Underwriters Holdings LTD)
Exceptions. Notwithstanding any provision of this Section 39(a) anything to the contrarycontrary herein, Lessee will the Company shall not be required obligated to make advance any payment amounts paid or to any Tax be paid by Indemnitee to third parties as damages, losses, liabilities, judgments, fines and penalties (whether civil, criminal, or other), and amounts paid or to be paid in settlement, in each case solely arising from a final and non-appealable decision of a court of competent jurisdiction, and to indemnify the Indemnitee pursuant to this Agreement with respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the followingto:
(ia) Indemnitee's reimbursement to the Company of any bonus or other than incentive-based or equity-based compensation previously received by Indemnitee or payment of any profits realized by Indemnitee from the sale of securities of the Company, as a result required in each case under the Securities Exchange Act of an Alteration by Lessee1934, as amended (the entry into a New Lease “Exchange Act”) (including any such reimbursements under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members 304 of the Sprint Group, directly ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors Section 954 of the Leased Property, or that Section 467 ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act in connection with an accounting restatement of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition Company or the involuntary sale, assignment, transfer, or other disposition attributable payment to the bankruptcy, insolvency Company of profits arising from the purchase or the breach sale by Indemnitee of any covenant or obligation securities in violation of Section 306 of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act);
(viiib) Expenses incurred on account of any change Proceeding in Law enacted, adopted which final judgment of a court of competent jurisdiction is rendered against the Indemnitee for an accounting of profits made from the purchase or promulgated on or after sale by the date Indemnitee of securities of the Agreement Company pursuant to Lease and Subleasethe provisions of Section l6(b) of the Exchange Act, provided that this exclusion shall not apply or similar provisions of any federal, state or local law;
(c) Expenses incurred on account of the Indemnitee’s conduct which is finally adjudged by a court of competent jurisdiction to any have been: (1) change in tax rates applicable a breach of the duty of loyalty owed to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or Company, (2) substitution an act or replacement of any Leased Property after a change omission which was not in Law;
Good Faith, (ix3) the failure of the Sprint Groupan act or omission which involved intentional misconduct or, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after criminal Proceeding, a knowing violation of law, or (4) a transaction from which the Indemnitee derived an improper personal benefit; or
(d) if a final decision by a court of competent jurisdiction in the matter shall determine that such indemnification is prohibited by applicable law or is not lawful as against public policy. For the avoidance of doubt, and not simultaneously with) (1) notwithstanding anything to the expiration or earlier termination of contrary set forth in this Section 4.05, the Term Company shall be obligated to advance to Indemnitee any and all Expenses with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, foregoing matters set forth in either case this Section 4.05 other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under such payments as are specifically mentioned in the introductory clause of this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Sublease4.05.
Appears in 1 contract
Exceptions. Notwithstanding any provision the foregoing:
(a) Section 2.3.1 does not prohibit Licensee and its Affiliates that are subject to Section 2.3.1, alone or through work conducted in collaboration with an Affiliate or Third Party, from conducting research and non-clinical development (or licensing or otherwise granting rights to an Affiliate or a Third Party to conduct research and non-clinical development) of this compounds (other than Licensed Compounds) that (i) […***…] or (ii) […***…].
(b) Section 39(a2.3.2 does not prohibit ▇▇▇▇▇▇▇ and its Affiliates, alone or through work conducted in collaboration with an Affiliate or Third Party, from conducting research and non-clinical development (or licensing or otherwise granting rights to an Affiliate or a Third Party to conduct research and non-clinical development) of compounds (other than Licensed Compounds) that […***…].
(c) Confidential Treatment Requested This Section 2.3 shall not apply to the contrary, Lessee will not be required Acquirer of a Party or any Affiliate of such Acquirer (excluding any Affiliate that was an Affiliate of such Party prior to make any payment to any Tax Indemnitee in respect a Change of any Tax Loss to the extent that any Control and became an Affiliate of such Tax Loss occurs Acquirer as a result of one such Change of Control), provided that, if the Acquirer or more such Affiliate conducts any activities described in Section 2.3.1 or 2.3.2, as applicable, during the Development Term (the “Development Term Acquirer Activities”), such Acquirer or Affiliate shall use reasonable good faith efforts to segregate such Development Term Acquirer Activities from activities conducted with respect to the Licensed Compounds and Licensed Products pursuant to this Agreement, including by (x) not permitting personnel who perform the Development Term Acquirer Activities to have access to Program-Related Information or other Confidential Information of the following:
other Party (iincluding Know-How and proprietary Development or Commercialization plans or other business information); and (y) other than as a result of an Alteration by Lessee, not permitting personnel who perform activities conducted with respect to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply Licensed Compounds and Licensed Products pursuant to this Agreement in accordance with its terms;
to perform Development Term Acquirer Activities (ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion the foregoing shall not apply to senior management and regulatory, chemistry-manufacturing-controls, patent, legal and other similar personnel).
(d) Neither Party shall be limited or prohibited by Section 2.3 from negotiating and completing a Change of Control, or taking any (1) change in tax rates applicable action to solicit, initiate, encourage or assist the making submission of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis proposal, negotiation or (b) respecting an Inclusion or (2) substitution or replacement of offer from any Leased Property after a change in Law;
(ix) the failure of the Sprint GroupThird Party relating to, or engage in discussions with any single Sprint Group MemberThird Party relating to, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion a Change of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseControl.
Appears in 1 contract
Exceptions. Notwithstanding any provision of this Section 39(a) anything to the contrarycontrary herein, Lessee will the Company shall not be required obligated to make any payment advance Expenses or indemnify the Indemnitee pursuant to any Tax Indemnitee in this Agreement with respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the followingto:
(ia) other than Expenses for which the Indemnitee is indemnified pursuant to any directors and officers insurance policy purchased and maintained by the Company (as a result of an Alteration by Lessee, provided in Article IX). It is specifically understood that the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that indemnity provided in this Agreement is not a "true lease" for federal income tax purposes or that in excess of any such directors and officers insurance policy and the members of Indemnitee will look first to the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termsdirectors and officers insurance policy;
(iib) Remuneration paid to the voluntary sale, assignment, transfer, Indemnitee if it shall be determined by a final judgment or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach final adjudication that such remuneration was in violation of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreementlaw;
(iiic) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax ’s reimbursement to the extent Company of any bonus or other incentive-based upon issues unrelated or equity-based compensation previously received by Indemnitee or payment of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements under Section 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or Section 954 of the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act in connection with an accounting restatement of the Company or the payment to the transactions contemplated Company of profits arising from the purchase or sale by this Agreement and related documents;
(v) Lessee's exercise Indemnitee of securities in violation of Section 306 of the purchase option provided in Section 36 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement2002);
(viiid) Expenses incurred on account of any change Proceeding in Law enacted, adopted which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or promulgated on or after sale by the date Indemnitee of securities of the Agreement Company pursuant to Lease and Subleasethe provisions of Section 16(b) of the Exchange Act or similar provisions of any federal, provided state or local law;
(e) Expenses incurred on account of the Indemnitee’s conduct which is finally adjudged by a court of competent jurisdiction to have been, or which Indemnitee has admitted facts sufficient for the Independent Counsel or court to reasonably conclude that this exclusion shall not apply to any the Indemnitee’s conduct was: (1) change in tax rates applicable a breach of the duty of loyalty owed to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or Company, (2) substitution an act or replacement of any Leased Property after a change omission which was not in Law;
Good Faith, (ix3) the failure of the Sprint Groupan act or omission which involved intentional misconduct or, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination criminal Proceeding, a knowing violation of the Term with respect to a Site law, or (24) a transaction from which the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi)Indemnitee derived an improper personal benefit;
(xvf) If a final decision by a court of competent jurisdiction in the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent matter shall determine that such breach or inaccuracy indemnification is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);not lawful as against public policy; or
(xvig) Any income taxes, or any exclusion under Section 39(a)(4) interest or penalties related to them, in respect of any Cross-Defaulted Master Lease and Subleasecompensation received for services as a director and/or officer.
Appears in 1 contract
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary8.1.1, Lessee will Owner shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 8.1.1 in respect of any Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax Loss benefit, whether or not Owner is required to indemnify therefor pursuant to Section 8.3;
(b) Except to the extent that any such Tax Loss occurs as a result attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of one or more its obligations pursuant to the terms of the following:
(iOperative Agreements) other than as a result of an Alteration by Lessee, that occur after the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement Trust Indenture is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply required to this Agreement be terminated in accordance with its terms;
Section 11.01 of the Trust Indenture; provided, that nothing in this clause (iib) the voluntary sale, assignment, transfer, shall be deemed to exclude or other disposition limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the for damages from Owner for breach of any covenant or obligation of the Tax Indemnitee set forth Owner's covenants contained in the Transaction Documents of Operative Agreements or by to release Owner from any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(Cc) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note or interest therein, except for out-of-pocket costs and expenses incurred as a default by Lessee and/or result of any such Transfer pursuant to the exercise of remedies under this any Operative Agreement;
(iiid) [Intentionally Omitted]
(e) To the extent attributable to the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group Indemnitee or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3related Indemnitee (as defined below) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such person by reason of its interest in whole the Aircraft or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viiif) [Intentionally Omitted]
(g) To the extent attributable to the incorrectness or breach of any change representation or warranty of such Indemnitee or any related Indemnitee contained in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply made pursuant to any (1) change in tax rates applicable to the making of Operative Agreement or any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in LawPass Through Agreement;
(ixh) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(i) To the extent attributable to the offer or sale by such Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of Owner);
(i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to the failure of the Sprint GroupMortgagee to distribute funds received and distributable by it in accordance with the Trust Indenture, or (ii) with respect to any single Sprint Group MemberIndemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (v) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (viii) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (x) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement, (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement; (xii) with respect to any Indemnitee (other than the Securities Intermediary), to the extent attributable to the failure of the Securities Intermediary to distribute funds received and distributable by it in accordance with the Trust Indenture and (xiii) with respect to Securities Intermediary, to the extent attributable to the negligence or willful misconduct of Securities Intermediary in the distribution of funds received and distributable by it in accordance with the Trust Indenture.
(k) Other than during the continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have sufficient income been requested by Owner or Tax liability as are required by or made pursuant to benefit the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the Federal Income Tax Benefitsactions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(xl) To the inclusion extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner;
(m) To the extent that it is an ordinary and usual operating or overhead expense;
(n) [Intentionally Omitted]
(o) For any Lien attributable to such Indemnitee or any related Indemnitee;
(p) If another provision of income an Operative Agreement or a Pass Through Agreement specifies the extent of Owner's responsibility or obligation with respect to such Expense, to the extent arising from other than failure of Owner to comply with such specified responsibility or obligation; or
(q) To the extent incurred by a Sprint Group Member or asserted against an Indemnitee as a result of any "prohibited transaction", within the reversion meaning of Alterations made by Lessee to Lessor at the end Section 406 of ERISA or Section 4975(c)(1) of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 Code. For purposes of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by 8.1, a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of Person shall be considered a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss "related" Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any period occurring after (and not simultaneously with) (1) the expiration such Affiliate or earlier termination a successor or permitted assignee of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseforegoing.
Appears in 1 contract
Sources: Participation Agreement (Continental Airlines Inc /De/)
Exceptions. Notwithstanding any provision of this In each billing instance, if PharMerica has complied with its obligations under Section 39(a) to the contrary9(d), Lessee will not and such efforts have been unsuccessful, no Pharmacy Operator shall be required to make provide Products or Services to a Covered Resident or Private Pay Resident in any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the followingfollowing circumstances unless Ceres, through a Facility Representative, first agrees to be responsible for payment for such Products and Services, in which case PharMerica shall directly ▇▇▇▇ Ceres, and Ceres shall pay to PharMerica, or cause the applicable Facility Operator to pay to PharMerica, for such Products and Services at the rates set forth on Schedule C and in accordance with the other terms and conditions of this Agreement:
(i) other than as If a result of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement or Facility Operator fails to provide any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not resident billing information required by Section 6(b)(vi) to PharMerica in the owners or sublessors of manner and at the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termstime specified therein;
(ii) the voluntary saleIf a Covered Resident or a Private Pay Resident fails, assignmentrefuses or is unable to pay any amount or charge (including, transferwithout limitation, co-pays, deductibles and co-insurance) due to PharMerica for Products and Services provided by a Pharmacy Operator to such Covered Resident or other disposition Private Pay Resident pursuant to PharMerica’s standard payment terms for such Covered Resident or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this AgreementPrivate Pay Resident;
(iii) Subject to the gross negligence last sentence of Section 9(b), if a Product or willful misconduct of such Tax Indemnitee;Service ordered for a Covered Resident is not covered by, or otherwise eligible for reimbursement under, an Accepted Plan, including, without limitation, due to a failure to obtain a required prior authorization from the Accepted Plan or due to a denial by the Accepted Plan; or
(iv) penalties, interest, If an Accepted Plan fails to accept or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment recognize eligibility for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement resident of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member Facility as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
Covered Resident (xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to such Accepted Plan) and such resident fails, refuses or is unable to pay any period occurring after (amount or charge due to PharMerica for Products and not simultaneously with) (1) the expiration or earlier termination of the Term with respect Services provided by a Pharmacy Operator to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseresident.
Appears in 1 contract
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary8.1.1, Lessee will Owner shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 8.1.1 in respect of any Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax Loss benefit, whether or not Owner is required to indemnify therefor pursuant to Section 8.3;
(b) Except to the extent that any such Tax Loss occurs as a result attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of one or more its obligations pursuant to the terms of the following:
(iOperative Agreements) other than as a result of an Alteration by Lessee, that occur after the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement Trust Indenture is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply required to this Agreement be terminated in accordance with its terms;
Section 11.01 of the Trust Indenture; provided, that nothing in this clause (iib) the voluntary sale, assignment, transfer, shall be deemed to exclude or other disposition limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the for damages from Owner for breach of any covenant or obligation of the Tax Indemnitee set forth Owner’s covenants contained in the Transaction Documents of Operative Agreements or by to release Owner from any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(Cc) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note or interest therein, except for out-of-pocket costs and expenses incurred as a default by Lessee and/or result of any such Transfer pursuant to the exercise of remedies under this any Operative Agreement;
(iiid) [Intentionally Omitted]
(e) To the extent attributable to the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group Indemnitee or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3related Indemnitee (as defined below) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such person by reason of its interest in whole the Aircraft or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viiif) [Intentionally Omitted]
(g) To the extent attributable to the incorrectness or breach of any change representation or warranty of such Indemnitee or any related Indemnitee contained in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply made pursuant to any (1) change in tax rates applicable to the making of Operative Agreement or any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in LawPass Through Agreement;
(ixh) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(i) To the extent attributable to the offer or sale by such Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of Owner);
(i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to the failure of the Sprint GroupMortgagee to distribute funds received and distributable by it in accordance with the Trust Indenture, or (ii) with respect to any single Sprint Group MemberIndemnitee (other than the Subordination Agent), to have sufficient income the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustee), to the extent attributable to the failure of the Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreement, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with the Escrow Agreement, (v) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with the Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with the Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or Tax liability willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (viii) with respect to benefit from the Federal Income Tax BenefitsSubordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) with respect to the Pass Through Trustee, to the extent attributable to the negligence or willful misconduct of the Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreement, (x) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with the Escrow Agreement and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with the Escrow Agreement;
(xk) Other than during the inclusion continuation of income an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(l) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner;
(m) To the extent that it is an ordinary and usual operating or overhead expense;
(n) [Intentionally Omitted]
(o) For any Lien attributable to such Indemnitee or any related Indemnitee;
(p) If another provision of an Operative Agreement or a Sprint Group Member Pass Through Agreement specifies the extent of Owner’s responsibility or obligation with respect to such Expense, to the extent arising from other than failure of Owner to comply with such specified responsibility or obligation; or
(q) To the extent incurred by or asserted against an Indemnitee as a result of any "prohibited transaction", within the reversion meaning of Alterations made by Lessee to Lessor at the end Section 406 of ERISA or Section 4975(c)(1) of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 Code. For purposes of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by 8.1, a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of Person shall be considered a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss "related" Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any period occurring after (and not simultaneously with) (1) the expiration such Affiliate or earlier termination a successor or permitted assignee of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseforegoing.
Appears in 1 contract
Sources: Participation Agreement (Continental Airlines Inc /De/)
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary8.1.1, Lessee will Owner shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 8.1.1 in respect of any Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax Loss benefit, whether or not Owner is required to indemnify therefor pursuant to Section 8.3;
(b) Except to the extent that any such Tax Loss occurs as a result attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of one or more its obligations pursuant to the terms of the following:
(iOperative Agreements) other than as a result of an Alteration by Lessee, that occur after the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement Trust Indenture is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply required to this Agreement be terminated in accordance with its terms;
Section 11.01 of the Trust Indenture; provided, that nothing in this clause (iib) the voluntary sale, assignment, transfer, shall be deemed to exclude or other disposition limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the for damages from Owner for breach of any covenant or obligation of the Tax Indemnitee set forth Owner’s covenants contained in the Transaction Documents of Operative Agreements or by to release Owner from any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(Cc) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note or interest therein, except for out-of-pocket costs and expenses incurred as a default by Lessee and/or result of any such Transfer pursuant to the exercise of remedies under this any Operative Agreement;
(iiid) To the extent attributable to the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group Indemnitee or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3related Indemnitee (as defined below) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such person by reason of its interest in whole the Aircraft or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viiie) To the extent attributable to the incorrectness or breach of any change representation or warranty of such Indemnitee or any related Indemnitee contained in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply made pursuant to any (1) change in tax rates applicable to the making of Operative Agreement or any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in LawPass Through Agreement;
(ixf) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(g) To the extent attributable to the offer or sale by such Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of Owner);
(i) With respect to any Indemnitee (other than Indenture Trustee), to the extent attributable to the failure of the Sprint GroupIndenture Trustee to distribute funds received and distributable by it in accordance with the Trust Indenture, or (ii) with respect to any single Sprint Group MemberIndemnitee (other than the Subordination Agent), to have sufficient income the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (v) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Indenture Trustee, to the extent attributable to the negligence or Tax liability willful misconduct of Indenture Trustee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (viii) with respect to benefit from the Federal Income Tax BenefitsSubordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (x) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement, (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement, (xii) with respect to any Indemnitee (other than the Securities Intermediary), to the extent attributable to the failure of the Securities Intermediary to distribute funds received and distributable by it in accordance with the Trust Indenture and (xiii) with respect to Securities Intermediary, to the extent attributable to the negligence or willful misconduct of Securities Intermediary in the distribution of funds received and distributable by it in accordance with the Trust Indenture;
(xi) Other than during the inclusion continuation of income an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, PARTICIPATION AGREEMENT (2012-2) 22 supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(j) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner;
(k) To the extent that it is an ordinary and usual operating or overhead expense;
(l) For any Lien attributable to such Indemnitee or any related Indemnitee;
(m) If another provision of an Operative Agreement or a Sprint Group Member Pass Through Agreement specifies the extent of Owner’s responsibility or obligation with respect to such Expense, to the extent arising from other than failure of Owner to comply with such specified responsibility or obligation; or
(n) To the extent incurred by or asserted against an Indemnitee as a result of any “prohibited transaction”, within the reversion meaning of Alterations made by Lessee to Lessor at the end Section 406 of ERISA or Section 4975(c)(1) of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 Code. For purposes of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by 8.1, a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of Person shall be considered a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss “related” Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any period occurring after (and not simultaneously with) (1) the expiration such Affiliate or earlier termination a successor or permitted assignee of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseforegoing.
Appears in 1 contract
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary9.1.1, Lessee will shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 9.1.1 in respect of any Tax Loss to the extent that any Expense of such Tax Loss occurs as a result of one or more of the followingIndemnitee:
(ia) other than as For any Taxes or a result loss of an Alteration by LesseeTax benefit, the entry into a New Lease under whether or not Lessee is required to indemnify therefor pursuant to Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition 9.3 or the involuntary saleTax Indemnity Agreement; provided, assignmenthowever, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (Athis Section 9.1.1(a) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change taxes taken into account in making any payment on a net after tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or basis;
(b) respecting an Inclusion Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance or failure to perform by Lessee of its obligations pursuant to the terms of the Lessee Operative Agreements) that occur after the earlier of: (i) with respect to the Airframe, any Engine or any Part, the return of possession (it being understood that the date of the placement of the Aircraft in storage as provided in Section 5 of the Lease constitutes the date of return of the Aircraft under the Lease) of such Airframe, Engine or Part pursuant to the terms of and in compliance with the Lease (other than pursuant to Section 15 thereof, in which case Lessee’s liability under this Section 9.1 shall survive for so long as Lessor or Mortgagee shall be entitled to exercise remedies under such Section 15) or (2ii) substitution or replacement the termination of any Leased Property after a change the Term in Lawaccordance with the Lease;
(ixc) To the failure extent attributable to any Transfer (voluntary or involuntary) by or on behalf of the Sprint Groupsuch Indemnitee of any Equipment Note or interest therein, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
except (xi) the inclusion of income by a Sprint Group Member for out-of-pocket costs and expenses incurred as a result of any such Transfer pursuant to the reversion exercise of Alterations made remedies under any Operative Agreement resulting from a Lease Event of Default and (ii) as otherwise required by Lessee to Lessor at the end terms of Section 2.13 of the TermTrust Indenture;
(xid) a determination that Sprint is not holding To the Leased Property extent attributable to any Transfer (voluntary or involuntary) by or on behalf of Owner Participant of any interest in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the RentAircraft, or the application Trust Estate except for costs and expenses incurred as a result of Section 467 of the Code or the Treasury regulations promulgated thereundersuch Transfer, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting if such Transfer arises directly from a Tax Loss Lease Event of Default that would not shall have occurred and be excluded under this clause (xvi)continuing;
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Sublease.
Appears in 1 contract
Sources: Participation Agreement (Continental Airlines Inc /De/)
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary8.1.1, Lessee will Owner shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 8.1.1 in respect of any Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax Loss benefit, whether or not Owner is required to indemnify therefor pursuant to Section 8.3;
(b) Except to the extent that any such Tax Loss occurs as a result attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of one or more its obligations pursuant to the terms of the following:
(iOperative Agreements) other than as a result of an Alteration by Lessee, that occur after the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that Security Agreements are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply required to this Agreement be terminated in accordance with its their terms;
; provided, that nothing in this clause (iib) the voluntary sale, assignment, transfer, shall be deemed to exclude or other disposition limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the for damages from Owner for breach of any covenant or obligation of the Tax Indemnitee set forth Owner’s covenants contained in the Transaction Documents of Operative Agreements or by to release Owner from any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or Operative Agreements that expressly provide for performance after termination of the Security Agreements;
(Cc) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of the Series B Equipment Note or interest therein, except for out-of-pocket costs and expenses incurred as a default by Lessee and/or result of any such Transfer pursuant to the exercise of remedies under this any Operative Agreement;
(iiid) [Intentionally Omitted]
(e) To the extent attributable to the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group Indemnitee or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3related Indemnitee (as defined below) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such person by reason of its interest in whole the Collateral or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viiif) [Intentionally Omitted]
(g) To the extent attributable to the incorrectness or breach of any change representation or warranty of such Indemnitee or any related Indemnitee contained in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply made pursuant to any (1) change in tax rates applicable to the making of Operative Agreement or any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in LawPass Through Agreement;
(ixh) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(i) To the extent attributable to the offer or sale by such Indemnitee or any related Indemnitee of any interest in the Collateral, the Series B Equipment Note, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of the Owner);
(i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to the failure of the Sprint GroupMortgagee to distribute funds received and distributable by it in accordance with the Security Agreements, or (ii) with respect to any single Sprint Group MemberIndemnitee (other than the Subordination Agent), to have sufficient income the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to Mortgagee, to the extent attributable to the negligence or Tax liability willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Security Agreements, (v) with respect to benefit from the Federal Income Tax BenefitsSubordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, and (vi) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements;
(xk) Other than during the inclusion continuation of income an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(l) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner;
(m) To the extent that it is an ordinary and usual operating or overhead expense;
(n) [Intentionally Omitted]
(o) For any Lien attributable to such Indemnitee or any related Indemnitee;
(p) If another provision of an Operative Agreement or a Sprint Group Member Pass Through Agreement specifies the extent of Owner’s responsibility or obligation with respect to such Expense, to the extent arising from other than failure of Owner to comply with such specified responsibility or obligation; or
(q) To the extent incurred by or asserted against an Indemnitee as a result of any “prohibited transaction”, within the reversion meaning of Alterations made by Lessee to Lessor at the end Section 406 of ERISA or Section 4975(c)(1) of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 Code. For purposes of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by 8.1, a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of Person shall be considered a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss “related” Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any period occurring after (and not simultaneously with) (1) the expiration such Affiliate or earlier termination a successor or permitted assignee of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseforegoing.
Appears in 1 contract
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary8.1.1, Lessee will Owner shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 8.1.1 in respect of any Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax Loss benefit, whether or not Owner is required to indemnify therefor pursuant to Section 8.3;
(b) Except to the extent that any such Tax Loss occurs as a result attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of one or more its obligations pursuant to the terms of the following:
(iOperative Agreements) other than as a result of an Alteration by Lessee, that occur after the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement Trust Indenture is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply required to this Agreement be terminated in accordance with its terms;
Section 11.01 of the Trust Indenture and the Collateral is required to be released from the Lien of the Second Mortgage pursuant to Section 11.01 of the Second Mortgage; provided, that nothing in this clause (iib) the voluntary sale, assignment, transfer, shall be deemed to exclude or other disposition limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the for damages from Owner for breach of any covenant or obligation of the Tax Indemnitee set forth Owner's covenants contained in the Transaction Documents of Operative Agreements or by to release Owner from any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise Operative Agreements that expressly provide for performance after termination of remedies under this Agreementthe Trust Indenture;
(iiic) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note or interest therein, except for out-of-pocket
(d) To the extent incurred by or asserted against an Indemnitee as a result of any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code;
(e) To the extent attributable to the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group Indemnitee or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3related Indemnitee (as defined below) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such person by reason of its interest in whole the Aircraft or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viiif) any change in Law enactedIf another provision of an Operative Agreement or a Pass Through Agreement specifies the extent of Owner's responsibility or obligation with respect to such Expense, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making extent arising from other than failure of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis Owner to comply with such specified responsibility or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Lawobligation;
(ixg) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(h) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(i) To the extent attributable to the offer or sale by such Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of Owner);
(i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to the failure of the Sprint Group, or any single Sprint Group Member, Mortgagee to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income distribute funds received and distributable by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense it in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
Trust Indenture, (xiiiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after Indemnitee (and not simultaneously with) (1) other than the expiration or earlier termination Second Mortgagee), to the extent attributable to the failure of the Term Second Mortgagee to distribute funds received and distributable by it in accordance with the
(k) Other than during the continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to a Site any Operative Agreement or (2) Pass Through Agreement other than such as have been requested by Owner or as are required by or made pursuant to the return to Sprint terms of the Leased Property related Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvithe Operative Agreements or the Pass Through Agreements);
(xvl) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such breach Indemnitee expressly agrees shall not be paid by or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents)be reimbursed by Owner;
(xvim) To the extent that it is an ordinary and usual operating or overhead expense; or
(n) For any exclusion under Section 39(a)(4) of Lien attributable to such Indemnitee or any Cross-Defaulted Master Lease and Subleaserelated Indemnitee.
Appears in 1 contract
Sources: Participation Agreement (Continental Airlines Inc /De/)
Exceptions. Notwithstanding any provision of this The indemnity provided for in Section 39(a9.01(a) to the contrary, Lessee will shall not be required to make any payment extend to any Tax Indemnitee in respect Expense of any Tax Loss Indemnitee to the extent that any such Tax Loss occurs as a result of one or more of the followingit:
(i) other than as a result would not have occurred but for the willful misconduct or gross negligence of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termssuch Indemnitee;
(ii) after the voluntary saleDelivery Date, assignmentis in respect of the Aircraft, transferand is attributable to acts or events which occur after the Aircraft is no longer part of the Lessor's Estate or, if the Aircraft remains a part of the Lessor's Estate, after the expiration of the Term (unless the Aircraft is being returned at such time, in which case after return of physical possession; provided that if the Lease has been terminated pursuant to Article 17 thereof, the indemnity provided in Section 9.01(a) hereof shall survive for so long as Lessor or the Indenture Trustee shall be exercising remedies under such Article 17), or other disposition to acts or events which occur after return of possession of the involuntary sale, assignment, transfer, or other disposition Aircraft by the Lessee in accordance with the provisions of the Lease (subject to the foregoing proviso if the Lessor has terminated the Lease pursuant to Article 17 of the Lease) but in any such case only to the extent not fairly attributable to the bankruptcy, insolvency acts or the breach of any covenant or obligation omissions of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any Lessee prior to expiration of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a saleTerm, assignment, transfer, or disposition (A) contemplated by including without limitation the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance Lessee's failure to fully discharge all of its obligations under the Transaction Documents; Lease or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreementthe other Operative Agreements;
(iii) is a Tax, whether or not the gross negligence Lessee is required to indemnify therefor pursuant to Article 8 hereof or willful misconduct of such pursuant to the Tax IndemniteeIndemnity Agreement;
(iv) penaltiesis a cost or expense required to be paid by the Owner Participant or its permitted transferees (and not by the Lessee) pursuant to this Agreement or any other Operative Agreement and for which the Lessee is not otherwise obligated to reimburse the Owner Participant, interest, directly or additions to Tax indirectly pursuant to the extent based upon issues unrelated to the transactions contemplated by terms of this Agreement and related documentsor such other Operative Agreement;
(v) Lessee's exercise would not have been incurred by such Indemnitee if such Indemnitee had not been in breach of its representations or warranties, or had not defaulted in the observance and performance of the purchase option provided terms and provisions required to be observed and performed by it, in Section 36 of this Agreement, the Purchase Agreement Assignment, the Lease, the Indenture, the Trust Agreement or any other Operative Agreement to which it is a party unless such breach or default shall be a result of the breach or default by the Lessee of any of its obligations under the Operative Agreements or by another Indemnitee of any of the foregoing;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement[reserved];
(vii) any failure is, in the case of the Tax Indemnitee to have taken all the actionsOwner Participant, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part Lessor's Liens to the failure extent attributable to the Owner Participant; in the case of Lessee the Owner Trustee, Lessor's Liens to follow the procedures set forth extent attributable to the Owner Trustee; in Section 39(d) the case of this Agreement)SSB, Lessor's Liens to the extent attributable to SSB; and in the case of the Indenture Trustee, Indenture Trustee's Liens;
(viii) any change is, in Law enactedthe case of the Owner Participant or the Owner Trustee, adopted attributable to the offer or promulgated on or sale by such Indemnitee after the date Certificate Closing Date of any interest in the Aircraft, the Lessor's Estate or the Trust Agreement or any similar interest (including an offer or sale resulting from bankruptcy or other proceedings for the relief of debtors in which such Indemnitee is the debtor), unless in each case such offer or sale shall occur (x) in connection with a Refinancing, (y) as a result of the Agreement to Lease and Sublease, occurrence of an Event of Default provided that this exclusion shall not apply to any (1) change either the Lease has been declared in tax rates applicable default or the transfer is pursuant to the making exercise of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis remedies under Article 17 of the Lease or (bz) respecting an Inclusion in connection with the Lessee's exercise of its early termination option under Article 10 of the Lease or (2) substitution its purchase options under Article 4 of the Lease or replacement in connection with Article 11 of any Leased Property after a change in Lawthe Lease;
(ix) is an Expense arising under or in connection with any prohibited transaction, within the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application meaning of Section 467 406 of ERISA or Section 4975(c)(1) of the Code or ("Prohibited Transaction"); provided, however, that in the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will event any prohibited transaction arises which is not apply to the entry into a New Lease exempt under Section 40 of this Agreement any class prohibited transaction exemption or any severance individual or statutory prohibited transaction exemption (individually or collectively, a "PTE") then the indemnity provided for herein shall extend to any Expenses incurred by the Owner Participant (or any Affiliate thereof) as the result of this Agreement under Section 41;
(xiii) any tax election Prohibited Transaction arising out of the purchase or holding of any Certificates by an employee benefit plan subject to Title I of ERISA or by a Sprint Group Member that is inconsistent with plan subject to Section 4975 of the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
Code (xivindividually or collectively, an "ERISA Plan") a Tax Loss with respect to any period occurring after (and not simultaneously withwhich the Owner Participant is a party in interest, within the meaning of Section 3(14) (1) of ERISA, or a disqualified person,within the expiration or earlier termination meaning of Section 4975 of the Term Code, except, however, that such Indemnity shall not extend to any Expenses incurred by the Owner Participant (or any Affiliate thereof) as the result of any Prohibited Transaction occurring with respect to a Site the purchase or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy holding of any representation, warranty Certificates (A) over which purchase or covenant by any Sprint Group Member in any of holding the Transaction Documents Owner Participant (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under thereof) has discretion or control (other than in the Transaction Documentscapacity of a custodian, directed trustee or other similar nondiscretionary capacity);
, or (xviB) by an ERISA Plan with respect to which the Owner Participant (or any exclusion under Affiliate thereof) is a "plan sponsor" within the meaning of Section 39(a)(43(16)(B) of any Cross-Defaulted Master Lease and SubleaseERISA.
Appears in 1 contract
Exceptions. Notwithstanding any provision of in this Section 39(a) to Agreement, the contrary, Lessee will Company shall not be required obligated under this Agreement to make any indemnity in connection with any Proceeding (or any part of any Proceeding):
(a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy, indemnity provision, vote or otherwise, except with respect to any Tax excess beyond the amount paid;
(b) initiated by Indemnitee prior to a Change in respect Control, , including any Proceeding (or any part of any Tax Loss to Proceeding) initiated by Indemnitee against the extent that any such Tax Loss occurs as a result of one Company or more of the following:
its directors, officers, employees, agents or other indemnitees, unless (i) other than as a result the Company’s board of an Alteration by Lesseedirectors authorized the Proceeding (or the relevant part of the Proceeding) prior to its initiation; (ii) the Company provides the indemnification, in its sole discretion, pursuant to the entry into a New Lease powers vested in the Company under applicable law; (iii) indemnification is required to be made under Section 40 of 10(e); (iv) otherwise required by applicable law; or (v) indemnification is in connection with actions or Proceedings brought to establish or enforce a right to indemnification under this Agreement or any severance other agreement or insurance policy or under the Company’s articles of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes incorporation or that the members of the Sprint Group, directly bylaws now or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply hereafter in effect relating to this Agreement in accordance with its termssuch Proceeding;
(iic) the voluntary sale, assignment, transfer, for any acts or other disposition omissions or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach transactions from which a director may not be relieved of any covenant or obligation of the Tax Indemnitee liability as set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any exception to Section 204(a)(10) of the Leased Property California General Corporation Law or portion as to circumstances in which indemnity is expressly prohibited by Section 317 of such Leased Property by any such Tax Indemnitee the California General Corporation Law; Exhibit 10.4
(d) for an accounting or any disgorgement of its Affiliates other than a saleprofits pursuant to Section 16(b) of the Securities Exchange Act of 1934, assignment, transferas amended, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member similar provisions of its rights federal, state or performance of its obligations under the Transaction Documents; local statutory law or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionscommon law, if any, required of it by Section 39(d) of this Agreement Indemnitee is held liable therefor (including pursuant to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreementany settlement arrangements);
(viiie) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income Expenses incurred by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss Indemnitee with respect to any period occurring after (action in which Indemnitee did not act in good faith and not simultaneously with) (1) in a manner which Indemnitee reasonably believed to be in the expiration or earlier termination best interests of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi)Company;
(xvf) for any reimbursement of the breach or inaccuracy Company by Indemnitee of any representation, warranty bonus or covenant other incentive-based or equity-based compensation or of any profits realized by any Sprint Group Member in any Indemnitee from the sale of securities of the Transaction Documents (except Company, to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate required in each case under the Transaction DocumentsSecurities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”);, or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); or
(xvig) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseif otherwise prohibited by applicable law.
Appears in 1 contract
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforgoing, Lessee a Stockholder will not be required to make comply with Section 3.2 above in connection with any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more proposed Sale of the followingCompany (the “Proposed Sale”) unless:
(a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) other than as a result the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of an Alteration by Lesseeall liens and encumbrances, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation obligations of the Tax Indemnitee set forth Stockholder in connection with the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliatestransaction have been duly authorized, in either caseif applicable, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or willful misconduct violation of such Tax Indemniteethe terms of any agreement, law or judgment, order or decree of any court or governmental agency;
(ivb) penaltiesthe Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, interest, or additions to Tax to other than the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documentsCompany;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vic) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability for indemnification, if any, required of it such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by Section 39(d) of this Agreement to contest the Loss Company in connection with such Proposed Sale, is several and such failure materially prejudices the ability to contestnot joint with any other Person, and Lessee has a reasonable basis for such contest (other than a failure attributable is pro rata in whole or part proportion to the failure amount of Lessee consideration paid to follow such Stockholder in connection with such Proposed Sale (in accordance with the procedures set forth in Section 39(d) provisions of this Agreementthe Restated Articles);
(viiid) any change liability shall be limited to such Stockholder’s pro rata share (determined in Law enacted, adopted or promulgated on or after proportion to proceeds received by such Stockholder in connection with such Proposed Sale in accordance with the date provisions of the Agreement Restated Articles) of a negotiated aggregate indemnification amount that applies equally to Lease all Stockholders but that in no event exceeds the amount of consideration actually paid to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;
(e) upon the consummation of the Proposed Sale, (i) each holder of each series of the Company’s Preferred Stock and Subleaseeach holder of Common Stock will receive the same form of consideration for their shares of Common and Preferred Stock, provided that this exclusion shall not apply to any (1ii) change in tax rates applicable each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock except to the making extent provided otherwise in the Articles of any indemnity payment for Incorporation of the Company then in effect, and (iv) unless the holders of at least a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or majority of the Series A Preferred Stock and the holders of at least a majority of the Series B Preferred Stock, each voting as a separate class, elect otherwise by written notice given to the Company at least two (2) substitution or replacement days prior to the effective date of any Leased Property after such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Articles of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that the vote required under this subsection 3.3(e)(iv) shall be that of the holders of a majority of the Preferred Stock voting as a single class on an as-converted to Common Stock basis for any change in Law;to the liquidation preferences of the Preferred Stock that does not have a disproportionately adverse impact on the holders of one series of Preferred Stock relative to the others; and
(ixf) subject to clause (e) above, requiring the failure same form of consideration to be received by the holders of the Sprint GroupCompany’s Common and Preferred Stock, or if any single Sprint Group Member, holders of any capital stock of the Company are given an option as to have sufficient income or Tax liability the form and amount of consideration to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee to Lessor at such capital stock will be given the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleasesame option.
Appears in 1 contract
Sources: Voting Agreement (Benefitfocus,Inc.)
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary8.1.1, Lessee will Owner shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 8.1.1 in respect of any Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax Loss benefit, whether or not Owner is required to indemnify therefor pursuant to Section 8.3;
(b) Except to the extent that any such Tax Loss occurs as a result attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of one or more its obligations pursuant to the terms of the following:
(iOperative Agreements) other than as a result of an Alteration by Lessee, that occur after the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement Trust Indenture is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply required to this Agreement be terminated in accordance with its terms;
Section 11.01 of the Trust Indenture; provided, that nothing in this clause (iib) the voluntary sale, assignment, transfer, shall be deemed to exclude or other disposition limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the for damages from Owner for breach of any covenant or obligation of the Tax Indemnitee set forth Owner's covenants contained in the Transaction Documents of Operative Agreements or by to release Owner from any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(Cc) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note or interest therein, except for out-of-pocket costs and expenses incurred as a default by Lessee and/or result of any such Transfer pursuant to the exercise of remedies under this any Operative Agreement;
(iiid) [Intentionally Omitted]
(e) To the extent attributable to the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group Indemnitee or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3related Indemnitee (as defined below) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such person by reason of its interest in whole the Aircraft or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viiif) [Intentionally Omitted]
(g) To the extent attributable to the incorrectness or breach of any change representation or warranty of such Indemnitee or any related Indemnitee contained in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply made pursuant to any (1) change in tax rates applicable to the making of Operative Agreement or any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in LawPass Through Agreement;
(ixh) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(i) To the extent attributable to the offer or sale by such Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of Owner);
(i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to the failure of the Sprint GroupMortgagee to distribute funds received and distributable by it in accordance with the Trust Indenture, or (ii) with respect to any single Sprint Group MemberIndemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (v) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (viii) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (x) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement.
(k) Other than during the continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have sufficient income been requested by Owner or Tax liability as are required by or made pursuant to benefit the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the Federal Income Tax Benefitsactions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(xl) To the inclusion extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner;
(m) To the extent that it is an ordinary and usual operating or overhead expense;
(n) [Intentionally Omitted]
(o) For any Lien attributable to such Indemnitee or any related Indemnitee;
(p) If another provision of income an Operative Agreement or a Pass Through Agreement specifies the extent of Owner's responsibility or obligation with respect to such Expense, to the extent arising from other than failure of Owner to comply with such specified responsibility or obligation; or
(q) To the extent incurred by a Sprint Group Member or asserted against an Indemnitee as a result of any “prohibited transaction”, within the reversion meaning of Alterations made by Lessee to Lessor at the end Section 406 of ERISA or Section 4975(c)(1) of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 Code. For purposes of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by 8.1, a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of Person shall be considered a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss “related” Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any period occurring after (and not simultaneously with) (1) the expiration such Affiliate or earlier termination a successor or permitted assignee of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseforegoing.
Appears in 1 contract
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee will a Stockholder shall not be required to make comply with Section 5.2 in connection with any payment proposed Sale of the Company (the “Proposed Sale”) unless:
(a) any representations and warranties to any Tax Indemnitee be made by such Stockholder in respect connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) such Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of such Stockholder in connection with the Proposed Sale have been duly authorized, if applicable, (iii) the documents to be entered into by such Stockholder have been duly executed by such Stockholder and delivered to the acquirer and are enforceable against such Stockholder in accordance with their respective terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iv) neither the execution and delivery of documents to be entered into in connection with the Proposed Sale, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any Tax Loss agreement, law or judgment, order or decree of any court or governmental agency;
(b) such Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that any such Tax Loss occurs as a result funds may be paid out of one or more an escrow established to cover breach of representations, warranties and covenants of the following:
(i) other than Company as a result well as breach by any stockholder of an Alteration any of identical representations, warranties and covenants provided by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termsall stockholders);
(iic) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability for indemnification, if any, required of it such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by Section 39(d) the Company or Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of this Agreement an escrow established to contest cover breach of representations, warranties and covenants of the Loss Company as well as breach by any stockholder of any of identical representations, warranties and such failure materially prejudices covenants provided by all stockholders), and, subject to the ability provisions of the Certificate related to contestthe allocation of the escrow, is pro rata in proportion to, and Lessee has a reasonable basis for does not exceed, the amount of consideration paid to such contest Stockholder in connection with such Proposed Sale (other than a failure attributable in whole or part to accordance with the failure provisions of Lessee to follow the procedures set forth in Section 39(d) of this AgreementCertificate);
(viiid) liability shall be limited to such Stockholder’s applicable pro rata share (based upon the respective proportion of proceeds actually payable to each such Stockholder in connection with such Proposed Sale in accordance with the provisions of the Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;
(e) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) the aggregate consideration receivable by all holders of Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Certificate; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Shares held by any change Key Holder or Investor, as applicable, pursuant to this Section 5.3(e) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in Law enactedan offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, adopted the Company may cause to be paid to any such Key Holder or promulgated on Investor in lieu thereof, against surrender of the Shares held by any Key Holder or after Investor, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the Agreement issuance of such securities in exchange for the Shares held by any Key Holder or Investor, as applicable; and
(f) subject to Lease and SubleaseSection 5.3(e), provided that this exclusion shall not apply requiring the same form of consideration to any (1) change in tax rates applicable be available to the making holders of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis single class or (b) respecting an Inclusion or (2) substitution or replacement series of capital stock, if any holders of any Leased Property after a change in Law;
(ix) the failure capital stock of the Sprint Group, or any single Sprint Group Member, Company are given an option as to have sufficient income or Tax liability the form and amount of consideration to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee such capital stock will be given the same option; provided, however, that nothing in this Section 5.3(f) shall entitle any holder to Lessor at the end receive any form of the Term;
(xi) consideration that such holder would be ineligible to receive as a determination result of such holder’s failure to satisfy any condition, requirement or limitation that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply generally applicable to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseCompany’s stockholders.
Appears in 1 contract
Sources: Voting Agreement (M&m Media, Inc.)
Exceptions. Notwithstanding any Any other provision of this Section 39(a) herein to the contrarycontrary notwithstanding, Lessee will the Corporation shall not be required obligated under this Agreement to make any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the followingindemnify Indemnitee:
(i) other than for Expenses incurred in connection with the prosecution of affirmative claims for damages in Proceedings initiated or brought voluntarily by Indemnitee and not by way of defense, application for declaratory relief, counterclaim or crossclaim, except (x) as a result of an Alteration contemplated by LesseeSection 3(b), (y) in specific cases if the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members Governing Body of the Sprint GroupCorporation has approved the initiation or bringing of such Proceeding, directly or indirectly through one or more entities that are classified and (z) as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termsmay be required by law;
(ii) for (y) an accounting of profits arising from the voluntary salepurchase or sale by Indemnitee of securities of the Corporation in violation of Section 16(b) of the Securities Exchange Act of 1934, assignment, transferas amended (the “Exchange Act”), or any similar successor statute, or (z) any reimbursement of the Corporation by Indemnitee of any bonus or other disposition incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Corporation, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) or Section 954 of the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act, or the involuntary sale, assignment, transfer, or other disposition attributable payment to the bankruptcy, insolvency or Corporation of profits arising from the breach purchase and sale by Indemnitee of any covenant or obligation securities in violation of Section 306 of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act);
(iii) in connection with Proceedings involving the gross negligence enforcement of non-compete and/or non-disclosure agreements or willful misconduct the non-compete and/or non-disclosure provisions of such Tax Indemnitee;employment, consulting or similar agreements the Indemnitee may be a party to with the Corporation, or any subsidiary of the Corporation or any other applicable foreign or domestic corporation, partnership, joint venture, trust or other enterprise, if any; and
(iv) penalties, interest, or additions to Tax if and to the extent based upon issues unrelated that it should ultimately be determined by a court of competent jurisdiction in a final and non-appealable decision that Indemnitee acted in bad faith and not in a manner which he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to Proceedings by or in the right of the Corporation, if applicable law so provides, against Expenses made in respect of any such Proceeding as to which Indemnitee shall have been adjudged to be liable to the transactions contemplated by this Agreement Corporation unless and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent that the Court of a resulting increase in Chancery of the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss State of Delaware shall determine that such indemnification may be made, and, with respect to any period occurring after (and not simultaneously with) (1) the expiration criminal action or earlier proceeding, Indemnitee had reasonable cause to believe that his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed not to be in or opposed to the Term best interests of the Corporation, and, with respect to a Site any criminal action or (2) the return proceeding, had reasonable cause to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss believe that would not be excluded under this clause (xvi);
(xv) the breach his or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseher conduct was unlawful.
Appears in 1 contract
Sources: Indemnification Agreement (Envision Healthcare Corp)
Exceptions. Notwithstanding any provision of this The indemnity provided for in Section 39(a9.01(a) to the contrary, Lessee will shall not be required to make any payment extend to any Tax Indemnitee in respect Expense of any Tax Loss Indemnitee to the extent that any such Tax Loss occurs as a result of one or more of the followingit:
(i) other than as a result would not have occurred but for the willful misconduct or gross negligence of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termssuch Indemnitee;
(ii) is in respect of the voluntary saleAircraft, assignmentand is attributable to acts or events which occur after the Aircraft is no longer part of the Lessor's Estate or, transferif the Aircraft remains a part of the Lessor's Estate, after the expiration of the Term (unless the Aircraft is being returned at such time, in which case after return of physical possession; provided that if the Lessor has terminated the Lease pursuant to Article 17 thereof, the indemnity provided in Section 9.01(a) hereof shall survive for so long as Lessor shall be exercising remedies under such Article 17), or other disposition to acts or events which occur after return of possession of the involuntary sale, assignment, transfer, or other disposition Aircraft by the Lessee in accordance with the provisions of the Lease (subject to the foregoing proviso if the Lessor has terminated the Lease pursuant to Article 17 of the Lease) but in any such case only to the extent not fairly attributable to the bankruptcy, insolvency acts or the breach of any covenant or obligation omissions of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any Lessee prior to expiration of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a saleTerm, assignment, transfer, or disposition (A) contemplated by including without limitation the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance Lessee's failure to fully discharge all of its obligations under the Transaction Documents; Lease, the other Operative Agreements or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreementthe Original Agreements;
(iii) is a Tax, whether or not the gross negligence Lessee is required to indemnify therefor pursuant to Article 8 hereof or willful misconduct of such pursuant to the Tax IndemniteeIndemnity Agreement;
(iv) penaltiesis a cost or expense required to be paid by the Owner Participant or its permitted transferees (and not by the Lessee) pursuant to this Agreement or any other Operative Agreement and for which the Lessee is not otherwise obligated to reimburse the Owner Participant, interest, directly or additions to Tax indirectly pursuant to the extent based upon issues unrelated to the transactions contemplated by terms of this Agreement and related documentsor such other Operative Agreement;
(v) Lessee's exercise would not have been incurred by such Indemnitee if such Indemnitee had not been in breach of its representations or warranties, or had not defaulted in the observance and performance of the purchase option provided terms and provisions required to be observed and performed by it, in Section 36 of this Agreement, the Purchase Agreement Assignment, the Lease, the Indenture, the Trust Agreement, the Original Agreements or any other Operative Agreement to which it is a party unless such breach or default shall be a result of the breach or default by the Lessee of any of its obligations under the Operative Agreements or by another Indemnitee of any of the foregoing;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement[Intentionally Left Blank];
(vii) any failure is, in the case of the Tax Indemnitee to have taken all the actionsOwner Participant, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part Lessor's Liens to the failure extent attributable to the Owner Participant; in the case of Lessee the Owner Trustee, Lessor's Liens to follow the procedures set forth extent attributable to the Owner Trustee; in Section 39(d) the case of this Agreement)FSB, Lessor's Liens to the extent attributable to FSB; and in the case of the Indenture Trustee, Indenture Trustee's Liens;
(viii) any change is, in Law enactedthe case of the Owner Participant or the Owner Trustee, adopted attributable to the offer or promulgated on or sale by such Indemnitee after the date Delivery Date of any interest in the Aircraft, the Lessor's Estate or the Trust Agreement or any similar interest (including an offer or sale resulting from bankruptcy or other proceedings for the relief of debtors in which such Indemnitee is the debtor), unless in each case such offer or sale shall occur (x) in connection with a Refinancing, (y) as a result of the Agreement to Lease and Sublease, occurrence of an Event of Default provided that this exclusion shall not apply to any (1) change either the Lease has been declared in tax rates applicable default or the transfer is pursuant to the making exercise of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis remedies under Article 17 of the Lease or (bz) respecting an Inclusion in connection with the Lessee's exercise of its early termination option under Article 10 of the Lease or (2) substitution its purchase options under Article 4 of the Lease or replacement in connection with Article 11 of any Leased Property after a change in Lawthe Lease;
(ix) is an Expense arising under or in connection with any prohibited transaction, within the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application meaning of Section 467 406 of ERISA or Section 4975(c)(1) of the Code or ("Prohibited Transaction"); provided, however, that in the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will event any prohibited transaction arises which is not apply to the entry into a New Lease exempt under Section 40 of this Agreement any class prohibited transaction exemption or any severance individual or statutory prohibited transaction exemption (individually or collectively, a "PTE") then the indemnity provided for herein shall extend to any Expenses incurred by the Owner Participant (or any Affiliate thereof) as the result of this Agreement under Section 41;
(xiii) any tax election Prohibited Transaction arising out of the purchase or holding of any Certificates by an employee benefit plan subject to Title I of ERISA or by a Sprint Group Member that is inconsistent with plan subject to Section 4975 of the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
Code (xivindividually or collectively, an "ERISA Plan") a Tax Loss with respect to any period occurring after (and not simultaneously withwhich the Owner Participant is a party in interest, within the meaning of Section 3(14) (1) of ERISA, or a disqualified person,within the expiration or earlier termination meaning of Section 4975 of the Term Code, except, however, that such Indemnity shall not extend to any Expenses incurred by the Owner Participant (or any Affiliate thereof) as the result of any Prohibited Transaction occurring with respect to a Site the purchase or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy holding of any representation, warranty Certificates (A) over which purchase or covenant by any Sprint Group Member in any of holding the Transaction Documents Owner Participant (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under thereof) has discretion or control (other than in the Transaction Documentscapacity of a custodian, directed trustee or other similar nondiscretionary capacity);
, or (xviB) by an ERISA Plan with respect to which the Owner Participant (or any exclusion under Affiliate thereof) is a "plan sponsor" within the meaning of Section 39(a)(43(16)(B) of any Cross-Defaulted Master Lease and SubleaseERISA.
Appears in 1 contract
Exceptions. Notwithstanding any provision of this The indemnity provided for in Section 39(a7.01(a) to the contrary, Lessee will shall ---------- not be required to make any payment extend to any Tax Indemnitee in respect Expense of any Tax Loss Indemnitee to the extent that any such Tax Loss occurs as a result of one or more of the followingit:
(i) is attributable to the willful misconduct or gross negligence of such Indemnitee (other than as a result gross negligence or willful misconduct imputed to such person by reason of an Alteration by Lessee, its interest in the entry into a New Lease under Section 40 of this Agreement Aircraft or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termstransaction documents);
(ii) except to the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition extent fairly attributable to the bankruptcyacts or events occurring prior thereto, insolvency is attributable to acts or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates events (other than a sale, assignment, transfer, or disposition (A) contemplated the performance by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance Lessee of its obligations under pursuant to the Transaction Documentsterms of the Operative Agreements) which occur after the Aircraft is no longer part of the Lessor's Estate or, if the Aircraft remains a part of the Lessor's Estate, after the expiration of the Term (unless the Aircraft is being returned at such time, in which case after return of physical possession; or (Cprovided that if the Lease has been terminated pursuant to Section 17 -------- thereof, the indemnity provided in Section 7.01(a) attributable to a default by Lessee and/or exercise of hereof shall survive for so long as Lessor shall be exercising remedies under this Agreementsuch Section 17), or to acts or events which occur after return of possession of the Aircraft by the Lessee in accordance with the provisions of the Lease (subject to the foregoing proviso if the Lessor has terminated the Lease pursuant to Section 17 of the Lease);
(iii) other than as expressly provided herein or in the gross negligence other Operative Agreements, is a Tax or willful misconduct loss of such a Tax Indemniteebenefit, whether or not the Lessee is required to indemnify therefor pursuant to Article 6 hereof or pursuant to the Tax Indemnity Agreement;
(iv) penaltiesis a cost or expense expressly required to be paid by such Indemnitee or its permitted transferees (and not by the Lessee) pursuant to this Agreement or any other Operative Agreement and for which the Lessee is not otherwise obligated to reimburse such Indemnitee, interest, directly or additions to Tax indirectly pursuant to the extent based upon issues unrelated to the transactions contemplated by terms of this Agreement and related documentsor such other Operative Agreement;
(v) Lessee's exercise is attributable to the incorrectness or breach by such Indemnitee of its representations or warranties, under any of the purchase option provided in Section 36 of this AgreementOperative Agreements;
(vi) is attributable to the failure by such Indemnitee to perform any of its obligations under any of the Sprint Group Operative Agreements except to the extent such failure was caused by a breach by Lessee of any representation or warranty or by any Sprint Group Member timely or properly failure of Lessee to claim perform any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this obligation under an Operative Agreement;
(vii) any failure is, in the case of the Tax Indemnitee to have taken all the actionsOwner Participant, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure Lessor's Liens attributable in whole or part to the failure Owner Participant; in the case of Lessee the Owner Trustee, Lessor's Liens to follow the procedures set forth extent attributable to the Owner Trustee; in Section 39(d) the case of this Agreement)Trust Company, Lessor's Liens to the extent attributable to Trust Company;
(viii) any change is, in Law enacted, adopted or promulgated on or after the date case of the Agreement to Lease and SubleaseOwner Participant or the Owner Trustee, provided that this exclusion shall not apply to any (1) change in tax rates applicable attributable to the making offer or sale by such Indemnitee of any indemnity payment interest in the Aircraft, the Lessor's Estate or the Trust Agreement or any similar interest (including an offer or sale resulting from bankruptcy or other proceedings for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis the relief of debtors in which such Indemnitee is the debtor), unless in each case such offer or (b) respecting an Inclusion or (2) substitution or replacement sale shall occur pursuant to the exercise of any Leased Property after a change in Lawremedies under Section 17 of the Lease;
(ix) in the failure case of the Sprint GroupOwner Participant, any Taxes relating to, resulting from, arising out of or any single Sprint Group Member, to have sufficient income in connection with a "prohibited transaction" within the meaning of Section 406 of ERISA or Tax liability to benefit from Section 4975(c)(1) of the Federal Income Tax BenefitsCode;
(x) the inclusion of income by a Sprint Group Member as a result is attributable to any amendment to any of the reversion Operative Agreements which is not requested, or consented to, by the Lessee or is not required or made pursuant to the terms of Alterations made by Lessee to Lessor at the end any of the Term;Operative Agreements; and
(xi) a determination that Sprint is not holding constitutes the Leased Property in the ordinary course loss of a trade future profits of such Indemnitee or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply losses attributable to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lesseesuch Indemnitee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseoverhead.
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Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary8.1.1, Lessee will Owner shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 8.1.1 in respect of any Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax Loss benefit, whether or not Owner is required to indemnify therefor pursuant to Section 8.3; PARTICIPATION AGREEMENT (2010-1)
(b) Except to the extent that any such Tax Loss occurs as a result attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of one or more its obligations pursuant to the terms of the following:
(iOperative Agreements) other than as a result of an Alteration by Lessee, that occur after the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement Trust Indenture is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply required to this Agreement be terminated in accordance with its terms;
Section 11.01 of the Trust Indenture; provided, that nothing in this clause (iib) the voluntary sale, assignment, transfer, shall be deemed to exclude or other disposition limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the for damages from Owner for breach of any covenant or obligation of the Tax Indemnitee set forth Owner’s covenants contained in the Transaction Documents of Operative Agreements or by to release Owner from any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(Cc) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note or interest therein, except for out-of-pocket costs and expenses incurred as a default by Lessee and/or result of any such Transfer pursuant to the exercise of remedies under this any Operative Agreement;
(iiid) To the extent attributable to the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group Indemnitee or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3related Indemnitee (as defined below) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such person by reason of its interest in whole the Aircraft or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viiie) To the extent attributable to the incorrectness or breach of any change representation or warranty of such Indemnitee or any related Indemnitee contained in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply made pursuant to any (1) change in tax rates applicable to the making of Operative Agreement or any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in LawPass Through Agreement;
(ixf) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(g) To the extent attributable to the offer or sale by such Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of Owner);
(i) With respect to any Indemnitee (other than Indenture Trustee), to the extent attributable to the failure of the Sprint GroupIndenture Trustee to distribute funds received and distributable by it in accordance with the Trust Indenture, or (ii) with respect to any single Sprint Group MemberIndemnitee (other than the Subordination Agent), to have sufficient income the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (v) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Indenture Trustee, to the PARTICIPATION AGREEMENT (2010-1) extent attributable to the negligence or Tax liability willful misconduct of Indenture Trustee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (viii) with respect to benefit from the Federal Income Tax BenefitsSubordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (x) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement;
(xi) Other than during the inclusion continuation of income an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(j) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner;
(k) To the extent that it is an ordinary and usual operating or overhead expense;
(l) For any Lien attributable to such Indemnitee or any related Indemnitee;
(m) If another provision of an Operative Agreement or a Sprint Group Member Pass Through Agreement specifies the extent of Owner’s responsibility or obligation with respect to such Expense, to the extent arising from other than failure of Owner to comply with such specified responsibility or obligation; or
(n) To the extent incurred by or asserted against an Indemnitee as a result of any “prohibited transaction”, within the reversion meaning of Alterations made by Lessee to Lessor at the end Section 406 of ERISA or Section 4975(c)(1) of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 Code. For purposes of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by 8.1, a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of Person shall be considered a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss “related” Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any period occurring after (and not simultaneously with) (1) the expiration such Affiliate or earlier termination a successor or permitted assignee of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseforegoing.
Appears in 1 contract
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary8.1.1, Lessee will Owner shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 8.1.1 in respect of any Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax Loss benefit, whether or not Owner is required to indemnify therefor pursuant to Section 8.3;
(b) Except to the extent that any such Tax Loss occurs as a result attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of one or more its obligations pursuant to the terms of the following:
(iOperative Agreements) other than as a result of an Alteration by Lessee, that occur after the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that Security Agreements are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply required to this Agreement be terminated in accordance with its their terms;
; provided, that nothing in this clause (iib) the voluntary sale, assignment, transfer, shall be deemed to exclude or other disposition limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the for damages from Owner for breach of any covenant or obligation of the Tax Indemnitee set forth Owner’s covenants contained in the Transaction Documents of Operative Agreements or by to release Owner from any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or Operative Agreements that expressly provide for performance after termination of the Security Agreements;
(Cc) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of the Series A Equipment Note or interest therein, except for out-of-pocket costs and expenses incurred as a default by Lessee and/or result of any such Transfer pursuant to the exercise of remedies under this any Operative Agreement;
(iiid) [Intentionally Omitted]
(e) To the extent attributable to the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group Indemnitee or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3related Indemnitee (as defined below) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such person by reason of its interest in whole the Collateral or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viiif) [Intentionally Omitted]
(g) To the extent attributable to the incorrectness or breach of any change representation or warranty of such Indemnitee or any related Indemnitee contained in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply made pursuant to any (1) change in tax rates applicable to the making of Operative Agreement or any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in LawPass Through Agreement;
(ixh) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(i) To the extent attributable to the offer or sale by such Indemnitee or any related Indemnitee of any interest in the Collateral, the Series A Equipment Note, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of the Owner);
(i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to the failure of the Sprint GroupMortgagee to distribute funds received and distributable by it in accordance with the Security Agreements, or (ii) with respect to any single Sprint Group MemberIndemnitee (other than the Subordination Agent), to have sufficient income the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustee), to the extent attributable to the failure of the Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreement, (iv) with respect to Mortgagee, to the extent attributable to the negligence or Tax liability willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Security Agreements, (v) with respect to benefit from the Federal Income Tax BenefitsSubordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, and (vi) with respect to the Pass Through Trustee, to the extent attributable to the negligence or willful misconduct of the Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreement;
(xk) Other than during the inclusion continuation of income an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Owner or as are required by or made pursuant to the terms of the Operative Agreements or the Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(l) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner;
(m) To the extent that it is an ordinary and usual operating or overhead expense;
(n) [Intentionally Omitted]
(o) For any Lien attributable to such Indemnitee or any related Indemnitee;
(p) If another provision of an Operative Agreement or a Sprint Group Member Pass Through Agreement specifies the extent of Owner’s responsibility or obligation with respect to such Expense, to the extent arising from other than failure of Owner to comply with such specified responsibility or obligation; or
(q) To the extent incurred by or asserted against an Indemnitee as a result of any “prohibited transaction”, within the reversion meaning of Alterations made by Lessee to Lessor at the end Section 406 of ERISA or Section 4975(c)(1) of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 Code. For purposes of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by 8.1, a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of Person shall be considered a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss “related” Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any period occurring after (and not simultaneously with) (1) the expiration such Affiliate or earlier termination a successor or permitted assignee of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaseforegoing.
Appears in 1 contract
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to 18.1.1, the contrary, Lessee will shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 18.1.1 in respect of any Tax Loss Expense:
(a) For any Taxes, provided however, this Section 18.1.2(a) shall not apply to any Taxes taken into account in making any payment on a net after-tax basis;
(b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance or failure to perform by the Lessee of its obligations pursuant to the terms of this Lease) that any such Tax Loss occurs as a result occur after (I) the return of one or more possession of the following:Aircraft to Lessor or its Designee pursuant to and in compliance with the terms hereof or (II) the termination of the Term in accordance with Section 9 or 15.3 hereof;
(ic) other than To the extent attributable to a disposition (whether voluntary or involuntary) by Lessor of all or any part of its interest in the Airframe or any Engine unless requested by Lessee or as a result of an Alteration by Lessee, the entry into a New Lease under Section 40 Event of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termsDefault;
(iid) To the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition extent attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group Indemnitee or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3Related Indemnitee (as defined below) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to any such person by reason of its interest in whole the Aircraft or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this AgreementLease);
(viiie) any change in Law enacted, adopted or promulgated on or after To the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable extent attributable to the making incorrectness or breach of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis representation or (b) respecting an Inclusion or (2) substitution or replacement warranty of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, such Indemnitee or any single Sprint Group Member, Related Indemnitee contained in or made pursuant to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
this Lease (x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions except to the extent of caused by a resulting increase in breach by the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy Lessee of any representation, warranty or covenant under this Lease);
(f) To the extent attributable to the failure by such Indemnitee or any Sprint Group Member Related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any of the Transaction Documents this Lease (except to the extent such breach or inaccuracy is attributed to caused by a breach or inaccuracy by the Lessee of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documentsthis Lease);
(xvig) To the extent attributable to the offer or sale by such Indemnitee or any exclusion under Related Indemnitee of any interest in the Aircraft in violation of applicable federal, state or foreign securities Laws (other than any violation thereof caused by the acts or omissions of the Lessee);
(h) Other than during the continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to this Lease other than such as have been requested by the Lessee or as are required by or made pursuant to the terms hereof;
(i) To the extent attributable to any amount which any Indemnitee expressly agrees in writing to pay or such Indemnitee expressly agrees in writing shall not be paid by or be reimbursed by the Lessee or an expense that is to be borne by any Indemnitee pursuant to this Lease;
(j) To the extent that it is an ordinary and usual operating or overhead expense;
(k) If another provision of this Lease specifies the extent of the Lessee’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than failure of the Lessee to comply with such specified responsibility or obligation;
(l) To the extent incurred by or asserted against an Indemnitee or any Related Indemnitee as a result of any “prohibited transaction”, within the meaning of Section 39(a)(4406 of ERISA or Section 4975(c)(1) of the Code; and
(m) To the extent attributable to a Lessor Lien. For purposes of this Section 18.1, a Person shall be considered a “Related Indemnitee” with respect to an Indemnitee if such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any Cross-Defaulted Master Lease and Subleasesuch Affiliate or a successor or permitted assignee of any of the foregoing, and, with respect to any Lender who is an Indemnitee, the Security Trustee to the extent acting pursuant to such Lender’s instructions shall be considered a Related Indemnitee; provided, however, that the Security Trustee in its individual capacity is not a Related Indemnitee of the Lessor, the Lender or the Security Trustee.
Appears in 1 contract
Sources: Global Aircraft Transaction Agreement (Republic Airways Holdings Inc)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Shareholder will not be required to make comply with Subsection 3.2 above in connection with any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more proposed Sale of the followingCompany (the “Proposed Sale”) unless:
(a) any representations and warranties to be made by such Shareholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shareholder’s Shares, including, without limitation, representations and warranties that (i) other than as a result the Shareholder holds all right, title and interest in and to the Shares such Shareholder purports to hold, free and clear of an Alteration by Lesseeall liens and encumbrances, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation obligations of the Tax Indemnitee set forth Shareholder in connection with the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliatestransaction have been duly authorized, in either caseif applicable, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence documents to be entered into by the Shareholder have been duly executed by the Shareholder and delivered to the acquiror and are enforceable against the Shareholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Shareholder’s obligations thereunder, will cause a breach or willful misconduct violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency by which such Tax IndemniteeShareholder is subject or bound;
(ivb) penaltiesthe Shareholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, interest, or additions to Tax to other than the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documentsCompany;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vic) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actionsliability for indemnification, if any, required of it such Shareholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by Section 39(d) of this Agreement to contest the Loss Company in connection with such Proposed Sale, is several and such failure materially prejudices the ability to contestnot joint with any other Person, and Lessee has a reasonable basis for such contest (other than a failure attributable is pro rata in whole or part proportion to the failure amount of Lessee consideration paid to follow such Shareholder in connection with such Proposed Sale (in accordance with the procedures set forth in Section 39(d) provisions of this Agreementthe Certificate of Incorporation);
(viiid) any change liability shall be limited to such Shareholder’s applicable share (determined based on the respective proceeds payable to each Shareholder in Law enacted, adopted or promulgated on or after connection with such Proposed Sale in accordance with the date provisions of the Agreement Certificate of Incorporation) of a negotiated aggregate indemnification amount that applies equally to Lease and Subleaseall Shareholders but that in no event exceeds the amount of consideration otherwise payable to such Shareholder in connection with such Proposed Sale, provided that this exclusion shall except with respect to claims related to fraud by such Shareholder, the liability for which need not apply be limited as to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Lawsuch Shareholder;
(ixe) upon the failure consummation of the Sprint GroupProposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of a majority of Preferred Stock elect otherwise by written notice given to the Company at least thirty (30) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Liquidation Event (assuming for this purpose that the Proposed Sale is a Liquidation Event) in accordance with the Certificate of Incorporation in effect immediately prior to the Proposed Sale; and
(f) subject to Subsection 3.3(e) above, requiring the same form of consideration to be available to the holders of any single Sprint Group Memberclass or series of capital stock, if any holders of a series or class of capital stock of the Company are given an option as to have sufficient income or Tax liability the form and amount of consideration to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee such series or class of capital stock will be given the same option; provided, however, that nothing in this Subsection 3.3(f) shall entitle any holder to Lessor at the end receive any form of the Term;
(xi) consideration that such holder would be ineligible to receive as a determination result of such holder’s failure to satisfy any condition, requirement or limitation that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply generally applicable to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseCompany’s shareholders.
Appears in 1 contract
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee an Investor will not be required to make any payment to any Tax Indemnitee in respect comply with the provisions of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the followingthis Section 2(c) unless:
(iA) other than as a result any representations and warranties to be made by such Investor in connection with any transaction proposed to be subject to the Drag-Along Right are limited to representations and warranties related to organization, authority, ownership and the ability to convey title to such Shares (including any Share Equivalents), due execution and enforceability of an Alteration by Lesseetransaction documents, non contravention and no conflicts, governmental approvals, no brokers and no litigation relating to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termstransaction;
(iiB) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion Investor shall not apply to any (1) change in tax rates applicable to be liable for the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, representation or warranty or covenant made by any Sprint Group Member other Person in connection with any of transaction proposed to be subject to the Transaction Documents Drag-Along Right, other than the Company (except to the extent such that funds may be paid out of an escrow established to cover breach or inaccuracy is attributed to a of representations, warranties and covenants of the Company as well as breach or inaccuracy by any stockholder of any representationidentical representations, warranty or covenant of Lessee or an Affiliate under the Transaction Documentswarranties and covenants provided by all stockholders);
(xviC) the liability for indemnification, damages or other remedies if any, of such Investor in any exclusion under Section 39(a)(4) such transaction and for the inaccuracy of any Crossrepresentations and warranties made by the Company or its stockholders in connection with such transaction, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Investor in connection with such transaction (subject to and taking into account any liquidation preference provisions of the Certificate of Incorporation), except that the liability for claims related to breaches of such Investor’s representations, warranties and covenants or fraud by such Investor shall only be borne by such Investor (except to the extent of any such escrow);
(D) subject to Section 2(c)(iv), the Investors will receive the same form of consideration in such Transfer and if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of any transaction proposed to be subject to the Drag-Defaulted Master Lease and SubleaseAlong Right, all holders of the same class or series of capital stock will be given the same option; provided, however that nothing in this Section 2(c)(vii)(D) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Company’s stockholders; provided, further that an Investor that is an employee of the Company or its Subsidiaries may be given an option to receive securities in lieu of cash consideration in a “rollover transaction” without offering the same to other Investors as long as such securities are of an equivalent value at the closing of the Drag-Along Sale as the consideration paid to the other Investors; and
(E) notwithstanding anything to the contrary in the foregoing, no Tiptree Investor or Warburg Investor shall be required to make any non-compete with respect to any transaction proposed to be subject to the Drag-Along Right.
Appears in 1 contract
Sources: Shareholder Agreement (Tiptree Inc.)
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforegoing, Lessee a Stockholder will not be required to make comply with Section 8.02 above in connection with any payment to any Tax Indemnitee in respect proposed Change of any Tax Loss to Control (the extent that any such Tax Loss occurs as a result of one or more of the following"Proposed Sale") unless:
A. any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) other than as a result the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of an Alteration by Lessee, the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
all liens and encumbrances; (ii) the voluntary sale, assignment, transfer, or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation obligations of the Tax Indemnitee set forth Stockholder in connection with the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliatestransaction have been duly authorized, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documentsif applicable; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) penaltiesneither the execution and delivery of documents to be entered into in connection with the transaction, interestnor the performance of the Stockholder's obligations thereunder, will cause a breach or additions to Tax to violation of the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documentsterms of any agreement, law or judgment, order or decree of any court or governmental agency;
(v) Lessee's exercise of B. the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion Stockholder shall not apply to any (1) change in tax rates applicable to be liable for the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, representation or warranty or covenant made by any Sprint Group Member other Person in any of connection with the Transaction Documents Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders);
C. the liability for indemnification, if any, of such breach or inaccuracy is attributed to a breach or Stockholder in the Proposed Sale and for the inaccuracy of any representationrepresentations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, warranty or covenant is several and not joint with any other Person (except to the extent that funds may be paid out of Lessee or an Affiliate under escrow established to cover breach of representations, warranties and covenants of the Transaction DocumentsCompany as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders);, and is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; and
D. liability shall be limited to such Stockholder's applicable share (xvi) any exclusion under Section 39(a)(4determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale) of any Cross-Defaulted Master Lease and Subleasea negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder.
Appears in 1 contract
Exceptions. Notwithstanding any provision of this Section 39(a) to the contraryforgoing, Lessee a Member will not be required to make comply with Section 10.06(b) above in connection with any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more proposed Sale of the followingCompany (the “Proposed Sale”) unless:
(i) other than as a result any representations and warranties to be made by such Member in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Units, including but not limited to representations and warranties that (A) the Member holds all right, title and interest in and to the Units such Member purports to hold, free and clear of an Alteration by Lesseeall liens and encumbrances, (B) the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members obligations of the Sprint GroupMember in connection with the transaction have been duly authorized, directly or indirectly through one or more entities that if applicable, (C) the documents to be entered into by the Member have been duly executed by the Member and delivered to the acquirer and are classified as partnerships or disregarded entities for federal income tax purposes, are not enforceable against the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement Member in accordance with its termstheir respective terms and (D) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Member’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;
(ii) the voluntary saleMember shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, assignment, transfer, other than for the inaccuracy of any representation or other disposition or warranty made by the involuntary sale, assignment, transfer, or other disposition attributable Company in connection with the Proposed Sale (except to the bankruptcy, insolvency or the extent that funds may be paid out of an escrow established to cover breach of any covenant or obligation representations, warranties and covenants of the Tax Indemnitee set forth in the Transaction Documents of or Company as well as breach by any such Tax Indemnitee or any of its Affiliates, in either case, Member of any of the Leased Property or portion of such Leased Property identical representations, warranties and covenants provided by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreementall Members);
(iii) the gross negligence or willful misconduct liability for indemnification, if any, of such Tax IndemniteeMember in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company), and is pro rata in proportion to the amount of consideration paid to such Member in connection with such Proposed Sale (in accordance with the provisions of this Agreement related to the allocation of the escrow);
(iv) penaltiesthe liability for indemnification shall be limited to such Member’s pro rata share (determined based on the respective proceeds payable to each Member in connection with such Proposed Sale in accordance with the provisions of this Agreement) of a negotiated aggregate indemnification amount that applies equally to all Members but that in no event exceeds the amount of consideration actually paid to such Member in connection with such Proposed Sale, interestexcept with respect to claims of fraud by such Member, or additions the liability for which need not be limited as to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documentssuch Member;
(v) Lessee's exercise upon the consummation of the purchase option Proposed Sale: (A) except as provided in Section 36 10.06(b)(vi), each holder of this Agreement;
each class or series of Units will receive the same form of consideration for their Units of such class or series as is received by other holders in respect of their Units of such same class or series of Units; and (viB) unless the failure Requisite Preferred Holders and the Series B Vote elect to receive a lesser amount by written notice given to the Sprint Group or Company at least five (5) days prior to the effective date of any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on such Proposed Sale, the appropriate Tax return other than aggregate consideration receivable by all holders of Units shall be allocated among the holders of Preferred Units, Common Units and Non- Voting Incentive Units in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) 8.01 of this Agreement to contest the Loss and as if such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part consideration were distributed to the failure of Lessee to follow the procedures set forth Members pursuant thereto; except as provided in Section 39(d10.06(b)(vi), subject to clause (v) above, requiring the same form of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement consideration to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable be available to the making holders of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis single class or (b) respecting an Inclusion or (2) substitution or replacement series of Units, if any holders of any Leased Property after a change in Law;
(ix) Units are given an option as to the failure form and amount of the Sprint Group, or any single Sprint Group Member, consideration to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member be received as a result of the reversion Proposed Sale, all holders of Alterations made by Lessee to Lessor at such Units will be given the end same option; and
(vi) no Member who is not an employee of the Term;
(xi) a determination that Sprint is Company shall be required to agree to any covenant not holding the Leased Property in the ordinary course to compete with or covenant not to solicit or hire customers, employees or suppliers of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply party to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and SubleaseProposed Sale.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Cullinan Oncology, LLC)
Exceptions. Notwithstanding any provision of this anything contained in Section 39(a) to the contrary8.1.1, Lessee will Owner shall not be required to make indemnify, protect, defend and hold harmless any payment Indemnitee pursuant to any Tax Indemnitee Section 8.1.1 in respect of any Expense of such Indemnitee:
(a) For any Taxes or a loss of Tax Loss benefit, whether or not Owner is required to indemnify therefor pursuant to Section 8.3;
(b) Except to the extent that any such Tax Loss occurs as a result attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of one or more its obligations pursuant to the terms of the following:
(iOperative Agreements) other than as a result of an Alteration by Lessee, that occur after the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41, the determination that this Agreement Trust Indenture is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply required to this Agreement be terminated in accordance with its terms;
Section 11.01 of the Trust Indenture; PROVIDED, that nothing in this clause (iib) the voluntary sale, assignment, transfer, shall be deemed to exclude or other disposition limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the for damages from Owner for breach of any covenant or obligation of the Tax Indemnitee set forth Owner's covenants contained in the Transaction Documents of Operative Agreements or by to release Owner from any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(Cc) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note or interest therein, except for out-of-pocket costs and expenses incurred as a default by Lessee and/or result of any such Transfer pursuant to the exercise of remedies under this any Operative Agreement;
(iiid) [Intentionally Omitted]
(e) To the extent attributable to the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group Indemnitee or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3related Indemnitee (as defined below) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable gross negligence or willful misconduct imputed to such person by reason of its interest in whole the Aircraft or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this any Operative Agreement);
(viiif) [Intentionally Omitted]
(g) To the extent attributable to the incorrectness or breach of any change representation or warranty of such Indemnitee or any related Indemnitee contained in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply made pursuant to any (1) change in tax rates applicable to the making of Operative Agreement or any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in LawPass Through Agreement;
(ixh) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(i) To the extent attributable to the offer or sale by such Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of Owner);
(i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to the failure of the Sprint GroupMortgagee to distribute funds received and distributable by it in accordance with the Trust Indenture, or (ii) with respect to any single Sprint Group MemberIndemnitee (other than the Subordination Agent), to have sufficient income the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (v) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or Tax liability willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (viii) with respect to benefit from the Federal Income Tax BenefitsSubordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (x) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement;
(xk) Other than during the inclusion continuation of income an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(l) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner;
(m) To the extent that it is an ordinary and usual operating or overhead expense;
(n) [Intentionally Omitted]
(o) For any Lien attributable to such Indemnitee or any related Indemnitee;
(p) If another provision of an Operative Agreement or a Sprint Group Member Pass Through Agreement specifies the extent of Owner's responsibility or obligation with respect to such Expense, to the extent arising from other than failure of Owner to comply with such specified responsibility or obligation; or
(q) To the extent incurred by or asserted against an Indemnitee as a result of any "prohibited transaction", within the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application meaning of Section 467 406 of the Code ERISA or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) the expiration or earlier termination of the Term with respect to a Site or (2) the return to Sprint of the Leased Property related to a Site, in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded under this clause (xvi4975(c)(1);
(xv) the breach or inaccuracy of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Sublease.
Appears in 1 contract
Sources: Participation Agreement (Continental Airlines Inc /De/)
Exceptions. Notwithstanding any Any other provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Section 39(a) Agreement:
a. To indemnify or advance expenses to the contraryIndemnitee with respect to proceedings or claims initiated or brought voluntarily by the Indemnitee and not by way of defense, Lessee will not be required to make any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the following:
unless (i) other than as such indemnification or advancement is expressly required to be made by law, (ii) the proceeding was authorized by the Board, (iii) such indemnification or advancement is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under the PABCL or (iv) the proceeding is brought to establish or enforce a result of an Alteration by Lessee, the entry into a New Lease right to indemnification or advancement under Section 40 of this Agreement or any severance of this Agreement other statute or law or otherwise as required under Section 41, the determination that this Agreement is not a "true lease" for federal income tax purposes or that the members of the Sprint Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Leased Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its termsPABCL;
(ii) b. To indemnify the voluntary sale, assignment, transfer, Indemnitee for any liabilities or other disposition or the involuntary sale, assignment, transfer, or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Leased Property or portion of such Leased Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer, or disposition (A) contemplated expenses incurred by the Transaction Documents; (B) otherwise resulting from the exercise by any Sprint Group Member of its rights or performance of its obligations under the Transaction Documents; or (C) attributable to a default by Lessee and/or exercise of remedies under this Agreement;
(iii) the gross negligence or willful misconduct of such Tax Indemnitee;
(iv) penalties, interest, or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(v) Lessee's exercise of the purchase option provided in Section 36 of this Agreement;
(vi) the failure by the Sprint Group or any Sprint Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 39(a)(3) of this Agreement;
(vii) any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 39(d) of this Agreement to contest the Loss and such failure materially prejudices the ability to contest, and Lessee has a reasonable basis for such contest (other than a failure attributable in whole or part to the failure of Lessee to follow the procedures set forth in Section 39(d) of this Agreement);
(viii) any change in Law enacted, adopted or promulgated on or after the date of the Agreement to Lease and Sublease, provided that this exclusion shall not apply to any (1) change in tax rates applicable to the making of any indemnity payment for a Tax Loss (a) respecting Federal Income Tax Benefits on an After-Tax basis or (b) respecting an Inclusion or (2) substitution or replacement of any Leased Property after a change in Law;
(ix) the failure of the Sprint Group, or any single Sprint Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits;
(x) the inclusion of income by a Sprint Group Member as a result of the reversion of Alterations made by Lessee to Lessor at the end of the Term;
(xi) a determination that Sprint is not holding the Leased Property in the ordinary course of a trade or business or that Sprint did not enter into the transactions contemplated by the Transaction Documents for profit;
(xii) the existence of, or any consequence of, the prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder, provided that the Lessee makes all payments when due and accrues all rental expense in accordance with the Proportional Rent as set forth in Exhibit H and provided further that this exclusion will not apply to the entry into a New Lease under Section 40 of this Agreement or any severance of this Agreement under Section 41;
(xiii) any tax election by a Sprint Group Member that is inconsistent with the Tax Assumptions to the extent of a resulting increase in the Lessee's indemnity obligations hereunder;
(xiv) a Tax Loss with respect to any period occurring after (and not simultaneously with) (1) proceeding instituted by the expiration Indemnitee to enforce or earlier termination interpret this Agreement, if a court of competent jurisdiction determines that each of the Term with respect material assertions made by the Indemnitee in such proceeding was not made in good faith or was frivolous;
c. To indemnify the Indemnitee under this Agreement for any amounts paid in settlement of a proceeding unless the Company consents to a Site such settlement or (2) the return Company unreasonably withholds such consent;
d. To indemnify the Indemnitee under this Agreement for any expenses incurred on account of any act of failure to Sprint act of the Leased Property related Indemnitee which is finally adjudged by a court or other body of competent jurisdiction to have constituted willful misconduct or recklessness. For purposes of the preceding sentence, a Sitefinding by a court or other body of competent jurisdiction that an act or failure to act of the Indemnitee or some other agent of the Company constitutes "misconduct" or words of like import shall not, of itself, create a presumption that the Indemnitee has engaged in either case other than interest, fines, penalties and additions to tax resulting from a Tax Loss that would not be excluded willful misconduct or recklessness under this clause (xvi)Agreement, the Company's Articles of Incorporation, the Company's bylaws or under the PABCL;
(xv) e. To indemnify the breach Indemnitee under this Agreement if a court of competent jurisdiction finally adjudges that such indemnification is illegal, including, without ___________Initials Initials____________ limitation, by virtue of such indemnification being in violation of public policy or inaccuracy any provision of any representation, warranty or covenant by any Sprint Group Member in any of the Transaction Documents (except to the extent such breach or inaccuracy is attributed to a breach or inaccuracy of any representation, warranty or covenant of Lessee or an Affiliate under the Transaction Documents);
(xvi) any exclusion under Section 39(a)(4) of any Cross-Defaulted Master Lease and Subleaselaw.
Appears in 1 contract
Sources: Indemnity Agreement (Interdigital Communications Corp)