Common use of Excluded Taxes Clause in Contracts

Excluded Taxes. If Landlord requires Tenant to pay any Impositions directly to the applicable taxing authority or other party entitled to collect the same, Tenant shall furnish Landlord with receipts showing payment of such Impositions and other amounts prior to delinquency; except that Tenant may in good faith by appropriate proceedings contest the validity, applicability or amount of any asserted Imposition, and pending such contest Tenant shall not be deemed in default of this subparagraph (or subparagraphs 9.(t) or 9.(u)) because of the contested Imposition if (1) within sixty (60) days after being asked to do so by Landlord, Tenant bonds over to the satisfaction of Landlord any lien asserted against the Leased Property and alleged to secure an amount in excess of $1,000,000 because of the contested Imposition, (2) Tenant diligently prosecutes such contest to completion in a manner reasonably satisfactory to Landlord, and (3) Tenant promptly causes to be paid any amount adjudged by a court of competent jurisdiction to be due, with all costs, penalties and interest thereon, promptly after such judgment becomes final; provided, however, that in any event each such contest shall be concluded and the Impositions, penalties, interest and costs shall be paid prior to the date (i) any criminal action may be instituted against Landlord or its directors, officers or employees because of the nonpayment thereof or (ii) any writ or order is issued under which any property owned by Landlord (including the Leased Property) may be seized or sold or any other action may be taken against Landlord or any property owned by Landlord because of the nonpayment thereof. (q)

Excluded Taxes. If Landlord requires Tenant The indemnity provided for in paragraph (a) above shall not extend to pay any Impositions directly of the following Taxes (the "Excluded Taxes"): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income, receipts, capital gain, capital or net worth, or conduct of business (other than, in each case, Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental, license, value added (to the applicable taxing authority extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that are attributable to any act, event or omission by such Tax Indemnitee that occurs after expiration or other party entitled termination of the Facility Lease and surrender of the Undivided Interest to collect the sameOwner Lessor or its successors (or in the case of a Certificateholder Indemnitee, Tenant Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall furnish Landlord with receipts showing payment not apply so long as a Lease Event of Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Impositions Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and other amounts prior the South Point Ground Lease (giving effect to delinquency; except that Tenant may in good faith by appropriate proceedings contest its assignment to the validity, applicability or amount Owner Lessor pursuant to the Assignment Agreement) and not as a result of any asserted Impositionaction or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee of any of its representations, and pending warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; Taxes (A) that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such contest Tenant shall not be deemed in default Tax Indemnitee is a debtor or a foreclosure by a creditor of this subparagraph (or subparagraphs 9.(t) or 9.(u)) because of the contested Imposition if (1) within sixty (60) days after being asked to do so by Landlord, Tenant bonds over to in the satisfaction of Landlord any lien asserted against the Leased Property and alleged to secure an amount in excess of $1,000,000 because case of the contested ImpositionOwner Lessor or the Owner Participant, the Owner Participant of all or part of its Member Interest or Undivided Interest, (2) Tenant diligently prosecutes such contest in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to completion in a manner reasonably satisfactory to Landlordsuccessor Lessor Manager), and or (3) Tenant promptly causes in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be paid indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply with respect to any amount adjudged initial syndication of interests in the Owner Participant accomplished prior to December 29, 2001; Taxes imposed on a Tax Indemnitee that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to such Tax Indemnitee; Taxes that are included as a part of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participant, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a court Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of competent such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to be duerelief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with all costssuch requirement, penalties the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement and interest thereon, promptly after the Tax Indemnitee shall have determined in good faith that compliance with any such judgment becomes final; provided, however, that requirement shall not result in any event each such contest shall be concluded and the Impositionsidentified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of interest, penalties, interest additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and costs shall be paid prior timely file returns as required by a taxing authority unless such failure is attributable to the date Facility Lessee not providing information that it is expressly required to provide under the Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (i) any criminal action may be instituted against Landlord or its directorsor, officers or employees because in the case of the nonpayment thereof Owner Participant, the Owner Lessor if acting at the express direction of the Owner Participant or any Related Party) is a party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (iiA) any writ was required by applicable law or order is issued under which any property owned by Landlord the Operative Documents, (including the Leased PropertyB) may be seized necessary or sold appropriate to, and is in conformity with, any amendment to any Operative Document requested by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any other action may be taken against Landlord comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from the breach by such Tax Indemnitee of any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated by the Operative Documents other than Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental or license taxes, value added taxes (except to the extent value added taxes are imposed in clear and direct substitution for income taxes) or property owned by Landlord because of the nonpayment thereof. (q)taxes.

Excluded Taxes. If Landlord requires Tenant to pay any Impositions directly to the applicable taxing authority or other party entitled to collect the same, Tenant shall furnish Landlord with receipts showing payment of such Impositions and other amounts prior to delinquency; except that Tenant may in good faith by appropriate proceedings contest the validity, applicability or amount of any asserted Imposition, and pending such contest Tenant shall not be deemed in default of this subparagraph (or subparagraphs 9.(t8.(t) or 9.(u8.(u)) because of the contested Imposition if (1) within sixty (60) days after being asked to do so by Landlord, Tenant bonds over to the satisfaction of Landlord any lien asserted against the Leased Property and alleged to secure an amount in excess of $1,000,000 500,000 because of the contested Imposition, (2) Tenant diligently prosecutes such contest to completion in a manner reasonably satisfactory to Landlord, and (3) Tenant promptly causes to be paid any amount adjudged by a court of competent jurisdiction to be due, with all costs, penalties and interest thereon, promptly after such judgment becomes final; provided, however, that in any event each such contest shall be concluded and the Impositions, penalties, interest and costs shall be paid prior to the date (i) any criminal action may be instituted against Landlord or its directors, officers or employees because of the nonpayment thereof or (ii) any writ or order is issued under which any property owned by Landlord (including the Leased Property) may be seized or sold or any other action may be taken against Landlord or any property owned by Landlord because of the nonpayment thereof. (q).

Excluded Taxes. Any and all payments by Borrower to or for the account of any Lender or Administrative Agent hereunder or under any other Loan Document shall be made free and clear of and without deduction for any and all present or future taxes, duties, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender and Administrative Agent, any taxes (including franchise taxes and taxes imposed on or measured by net income or profits), by reason of any connection between, as applicable, such Lender or Administrative Agent and the relevant taxing jurisdiction, including, without limitation, a connection arising from such Person being or having been a citizen, domiciliary, or resident of such jurisdiction, being organized in such jurisdiction, or having had a permanent establishment or fixed place of business therein, but excluding a connection arising solely from such Person having executed, delivered, performed its obligations or received any payment under this Credit Agreement (all such non-excluded taxes, duties, levies, imposts, deductions, charges, withholdings, and liabilities being hereinafter referred to as "TAXES"). If Landlord requires Tenant Borrower shall be required by law to pay deduct any Impositions directly Taxes from or in respect of any sum payable under this Credit Agreement or any other Loan Document to any Lender or Administrative Agent: (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this SECTION 4.6) such Lender or Administrative Agent receives an amount equal to the applicable taxing sum it would have received had no such deductions been made; (ii) Borrower shall make such deductions; (iii) Borrower shall pay the full amount deducted to the relevant taxation authority or other party entitled to collect the same, Tenant authority in accordance with applicable law; and (iv) Borrower shall furnish Landlord with receipts showing to Administrative Agent, at its address for notice under this Credit Agreement, the original or a certified copy of a receipt evidencing payment of such Impositions and other amounts prior to delinquency; except that Tenant may in good faith by appropriate proceedings contest the validity, applicability or amount of any asserted Imposition, and pending such contest Tenant shall not be deemed in default of this subparagraph (or subparagraphs 9.(t) or 9.(u)) because of the contested Imposition if (1) within sixty (60) days after being asked to do so by Landlord, Tenant bonds over to the satisfaction of Landlord any lien asserted against the Leased Property and alleged to secure an amount in excess of $1,000,000 because of the contested Imposition, (2) Tenant diligently prosecutes such contest to completion in a manner reasonably satisfactory to Landlord, and (3) Tenant promptly causes to be paid any amount adjudged by a court of competent jurisdiction to be due, with all costs, penalties and interest thereon, promptly after such judgment becomes final; provided, however, that in any event each such contest shall be concluded and the Impositions, penalties, interest and costs shall be paid prior to the date (i) any criminal action may be instituted against Landlord or its directors, officers or employees because of the nonpayment thereof or (ii) any writ or order is issued under which any property owned by Landlord (including the Leased Property) may be seized or sold or any other action may be taken against Landlord or any property owned by Landlord because of the nonpayment thereof. (q).

Excluded Taxes. Any and all payments by the Borrower to or for the account of the Administrative Agent or any Lender under any Loan Document shall be made free and clear of and without deduction for any and all present or future taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, and all liabilities with respect thereto, excluding, in the case of the Administrative Agent and each Lender, taxes imposed on or measured by its net income, profit, business activity and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the Laws of which the Administrative Agent or such Lender, as the case may be, is organized or maintains a lending office (all such non-excluded taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, and liabilities being hereinafter referred to as “Taxes”). If Landlord requires Tenant the Borrower shall be required by any Laws to pay deduct any Impositions directly Taxes from or in respect of any sum payable under any Loan Document to the Administrative Agent or any Lender, (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable taxing to additional sums payable under this Section 4.6), the Administrative Agent and such Lender receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions, (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other party entitled to collect the same, Tenant shall furnish Landlord authority in accordance with receipts showing payment of such Impositions and other amounts prior to delinquency; except that Tenant may in good faith by appropriate proceedings contest the validity, applicability or amount of any asserted Imposition, and pending such contest Tenant shall not be deemed in default of this subparagraph (or subparagraphs 9.(t) or 9.(u)) because of the contested Imposition if (1) within sixty (60) days after being asked to do so by Landlord, Tenant bonds over to the satisfaction of Landlord any lien asserted against the Leased Property and alleged to secure an amount in excess of $1,000,000 because of the contested Imposition, (2) Tenant diligently prosecutes such contest to completion in a manner reasonably satisfactory to Landlordapplicable Laws, and (3iv) Tenant promptly causes to be paid any amount adjudged by a court within 30 days after the date of competent jurisdiction to be duesuch payment, with all costs, penalties and interest thereon, promptly after such judgment becomes final; provided, however, that in any event each such contest the Borrower shall be concluded and the Impositions, penalties, interest and costs shall be paid prior furnish to the date Administrative Agent (iwhich shall forward the same to such Lender) any criminal action may be instituted against Landlord the original or its directors, officers or employees because a certified copy of the nonpayment thereof or (ii) any writ or order is issued under which any property owned by Landlord (including the Leased Property) may be seized or sold or any other action may be taken against Landlord or any property owned by Landlord because of the nonpayment a receipt evidencing payment thereof. (q).

Excluded Taxes. If Landlord requires Tenant to pay any Impositions directly Notwithstanding anything herein to the applicable taxing authority contrary, the Tax indemnity provided under this Section 8.2(e) shall not cover Tax Liabilities resulting from any action taken after the Closing on the Closing Date by Buyer, the Companies or any of their respective Affiliates that is outside the ordinary course of business and not contemplated by this Agreement. (ii) Without limiting the generality or effect of any other provision hereof, from and after the Closing, Buyer shall indemnify Seller and its officers, directors, employees, agents, representatives and Affiliates and hold each of them harmless against all Taxes (A) of the Companies properly allocable to a Tax period or portion thereof beginning after the Closing Date, (B) Buyer’s share of the Transfer Taxes, if any, as set forth in Section 8.2(a), and (C) described in clauses (B) and (C) of the definition of Assumed Taxes. (iii) Payment by the indemnifying party entitled to collect of any amount due under this Section 8.2(e) shall be made within 10 Business Days following written notice by the same, Tenant shall furnish Landlord with receipts showing Indemnified Party that payment of such Impositions amounts to the appropriate Taxing authority is due; provided that the indemnifying party shall not be required to make any payment earlier than five Business Days before it is due to the appropriate Taxing authority. In the case of a Tax that is contested in accordance with the provisions of Section 8.2(e) below, payment of the Tax to the appropriate Taxing authority shall not be considered to be due earlier than the date a final determination to such effect is made by the appropriate Taxing authority or court. (iv) The parties agree that any indemnification payment made pursuant to this Section 8.2(e) shall be treated as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by applicable Law. (v) Any disputes between the parties with respect to the Tax matters regarding the Companies in Section 8.2 shall be resolved by the Accounting Firm, whose fees and expenses shall be borne in accordance with Section 4.5(b). (vi) For purposes of this Section 8.2, Taxes (other amounts prior than Transfer Taxes) with respect to delinquency; except a Straddle Period shall be allocated to the portion of the Straddle Period ending on and including the Closing Date (A) in the case of any real or personal property Taxes, ad valorem Taxes and similar periodic Taxes, by multiplying the amount of such Taxes for the entire Straddle Period by a fraction, the numerator of which is the number of days during the Straddle Period up to and including the Closing Date and the denominator of which is the number of days in the entire Straddle Period and (B) in the case of all other Taxes, by way of a closing of books, as though the relevant taxable period had ended on the Closing Date (provided that Tenant may in good faith by appropriate proceedings contest exemptions, allowances or deductions that are calculated on an annual basis, such as the validitydeduction for depreciation, applicability shall be apportioned on a daily basis). Notwithstanding the foregoing, any deductions attributable to Transaction Expenses that have not been reflected on a Seller Tax Return shall, insofar as permissible, be allocated to the taxable period ending on or before the Closing Date. (vii) Notwithstanding anything to the contrary herein, Seller and Buyer agree that Seller makes no representation, warranty, and provides no other assurance, with respect to the amount of any asserted Imposition, and pending such contest Tenant shall not be deemed in default of this subparagraph (or subparagraphs 9.(t) or 9.(u)) because Tax Attributes of the contested Imposition if (1) within sixty (60) days after being asked to do so by LandlordCompanies, Tenant bonds over or with respect to the satisfaction availability on and after the Closing Date of Landlord any lien asserted against the Leased Property and alleged to secure an amount in excess of $1,000,000 because Tax Attributes of the contested Imposition, (2) Tenant diligently prosecutes such contest to completion in a manner reasonably satisfactory to Landlord, and (3) Tenant promptly causes to be paid any amount adjudged by a court of competent jurisdiction to be due, with all costs, penalties and interest thereon, promptly after such judgment becomes final; provided, however, that in any event each such contest shall be concluded and the Impositions, penalties, interest and costs shall be paid prior to the date (i) any criminal action may be instituted against Landlord or its directors, officers or employees because of the nonpayment thereof or (ii) any writ or order is issued under which any property owned by Landlord (including the Leased Property) may be seized or sold or any other action may be taken against Landlord or any property owned by Landlord because of the nonpayment thereof. (q)Companies.