General Taxes. All payments by Charterer, or by any other party on behalf of or for the account of Charterer, under or pursuant to the Demise Charter or any other Transaction Document (other than the Tax Indemnity Agreement), including all amounts received by any Indemnified Party on account of Charter Hire, shall be free of withholdings of any nature whatsoever in respect of Taxes indemnified pursuant to this Article 17 (and at the time that Charterer is required to make any payment upon which any such withholding is required, Charterer shall pay an additional amount such that the net amount actually received by the Person entitled to receive such payment will, after such withholding, equal the full amount of the payment then due), and shall be free of expense to each Indemnified Person for collection or other charges, and, whether or not any of the transactions contemplated hereby are consummated, Charterer agrees to pay and assume liability for, and does hereby agree to indemnify, protect, defend and hold harmless each Indemnified Person from and against, all taxes, assessments, fees and charges, together with any penalties, fines, additions to tax or Interest thereon, howsoever imposed, whether levied or imposed upon such Indemnified Person, Charterer, the Vessels or any part thereof by any federal, state or local government or governmental subdivision or taxing authority in the United States, by any foreign country or subdivision thereof, by any other foreign or international taxing authority or by any other authority having or asserted to have jurisdiction to tax, upon or with respect to, the Vessels or any part thereof; the manufacture, construction, acceptance, rejection, transfer, control, operation, condition, servicing, maintenance, repair, abandonment, replacement, purchase, sale, ownership, delivery, non-delivery, leasing, insuring, possession, use, improvement, transfer of title, return or other disposition thereof; the rentals, receipts or earnings arising therefrom; this Demise Charter and the other Transaction Documents (other than the Tax Indemnity Agreement) or any payment made pursuant thereto; or otherwise in connection with the transactions contemplated by the Transaction Documents (other than the Tax Indemnity Agreement) (all such taxes, assessments, fees, charges, penalties, fines, additions to tax and interest imposed as aforesaid, whether now existing or hereinafter enacted or adopted, being hereinafter called “Taxes”); excluding, however, the following: (A) Taxes based on or measured by the net income, gross income (to the extent such gross income tax replaces or is dollar for dollar in lieu of a tax on net income) or net receipts of an Indemnified Person (including, but not limited to, any minimum Taxes, any capital gain Taxes, or value added Taxes to the extent such Taxes replace or are in lieu of a tax on net income) or Taxes on or measured by items of tax preference of an Indemnified Person, other than (i) Taxes in the nature of or in lieu of sales, use or rental taxes; and (ii) Taxes upon or with respect to indemnification payments made pursuant to this Article 17 which are imposed on such Indemnified Persons by the United States or any state or political subdivision thereof or by any foreign country, in which such Indemnified Person has a place of business; (B) whether or not described in clause (A) above, (i) Taxes (other than taxes in the nature of sales, use or rental Taxes) imposed on an Indemnified Person that are, or are in the nature of, Taxes on, based upon, measured by or imposed with respect to gross receipts, (ii) any Taxes on or measured by capital, net worth or excess profits, (iii) any Taxes that are or are in the nature of capital stock taxes, franchise taxes or doing business taxes, and (iv) any additions to tax, surcharges, interest, penalties, fines or other charges in respect of any of the foregoing; (C) Taxes included in Lessor’s Cost; (D) Taxes resulting from the voluntary transfer by an Indemnified Person of any interest arising under the Transaction Documents or with respect to the Vessels (provided, however, that (x) except as otherwise provided in clause (y) which follows, a transfer required by the Transaction Documents shall not be considered a voluntary transfer, and (y) a transfer of an Owner Participant’s beneficial interest in the Trust as a result of the loss or prospective loss of its status as a Maritime Citizen shall be considered a voluntary transfer) unless such transfer shall occur as a result of Shipowner exercising its rights and remedies while an Event of Default shall have occurred and be continuing; (E) any Tax attributable to any Vessels that is imposed with respect to any period after the earliest of the following events: (i) expiration of the Charter Period with respect to the Vessels; (ii) discharge in full of Charterer’s obligations to pay Stipulated Loss Value and any other amounts due by Charterer with respect to such Vessel under the Demise Charter, and (iii) the return of possession of such Vessel to Shipowner in accordance with Article 15 of the Demise Charter; provided, however, that this exception shall not apply to Taxes (including any interest, penalties, and additions to tax with respect thereto whether or not such amounts relate to a period after such expiration) relating to events occurring or matters arising prior to or simultaneously with such event; (F) Taxes imposed on an Indemnified Person to the extent that such Taxes result from an Indemnified Person engaging in activities or transactions unrelated to any transaction contemplated by the Transaction Document; (G) Taxes that are imposed as a result of any Indemnified Person not being a “United States person” as defined in Section 7701(a)(30) of the Code; (H) Taxes that are imposed (i) as a result of the gross negligence, willful misconduct or bad faith of any Indemnified Person, or (ii) as a result of the inaccuracy or breach of a representation, warranty or covenant of any Indemnified Person in any Transaction Document; (I) any Tax that is enacted or adopted as a substitute for or in lieu of any Tax that would not have been indemnified against pursuant to this Article 17; (J) Taxes that have not been paid or credited and that are being contested in accordance with the provisions of Section 17(b) below, during the pendency of such contest; (K) Taxes imposed as a result of any Indemnified Person’s failure to fulfill its obligations under Section 17(b) below; (L) any interest, penalties, fines or additions to Tax attributable to the failure of an Indemnified Person to file any return properly and timely pursuant to its obligations under Section 17(d) below, except to the extent that such failure is a result of the failure of Charterer to fulfill its obligations, if any, under Section 17(d) below, with respect to such return or claim; (M) Taxes imposed on an Indemnified Person to the extent of the excess of such Taxes over the amount of such Taxes that would have been imposed had there not been a transfer of a Vessel or any interest therein or in any Indemnified Person or any interest arising under any Transaction Document by any Indemnified Person; provided, however, that the exclusion set forth in this clause (M) shall not apply if any such transfer shall occur in connection with any foreclosure or pursuit of remedies (whether by Shipowner or otherwise) in connection with an Event of Default that has occurred and is continuing; (N) Taxes imposed on an Indemnified Person that result from Shipowner’s Liens; (O) any Tax resulting from any amendment or modification entered into by any Indemnified Person to any Transaction Document if Charterer is not a party to such amendment or modification and has not given its express written consent to such amendment or modification, unless (i) such amendment, modification, supplement, consent or waiver arises in connection with an Event of Default that has occurred and is continuing, or (ii) such amendment, modification, supplement, consent or waiver is required by the Transaction Documents or applicable law or is necessary or appropriate to, and is in conformity with, any other amendment, modification or supplement to any Transaction Document initiated, requested by or consented to by Charterer; (P) Taxes that otherwise are the subject of an indemnity obligation of Charterer to the extent such Taxes are actually utilized by the Indemnified Person as a credit against Taxes otherwise payable by such Indemnified Person that are not indemnified hereunder; (Q) Taxes imposed on an Indemnified Person in the nature of an intangible, stamp or similar Tax (other than any such tax imposed by any jurisdiction as a result of any Vessel being used or located, or the Transaction Documents being executed or delivered or the activities or presence of Charterer in such jurisdiction); (R) Taxes which are subject to indemnification under the Tax Indemnity Agreement; (S) Taxes imposed on or in connection with any transfer by any Indemnified Person by reason of any insolvency, bankruptcy, foreclosure or similar proceeding in respect of the Indemnified Person, other than any such proceeding arising as a result of an Event of Default; and (T) any Tax to the extent such Tax would not have been imposed if an Indemnified Person was not organized in the jurisdiction imposing such Tax or did not maintain an office in that jurisdiction.
Appears in 4 contracts
Samples: Demise Charter (Tampa Electric Co), Demise Charter (Teco Energy Inc), Demise Charter (Teco Energy Inc)
General Taxes. All payments by Charterer, or by any other party on behalf of or for the account of Charterer, under or pursuant to the Demise Charter or any other Transaction Document (other than the Tax Indemnity Agreement), including all amounts received by any Indemnified Party on account of Charter Hire, shall be free of withholdings of any nature whatsoever in respect of Taxes indemnified pursuant to this Article 17 (and at the time that Charterer is required to make any payment upon which any such withholding is required, Charterer shall pay an additional amount such that the net amount actually received by the Person entitled to receive such payment will, after such withholding, equal the full amount of the payment then due), and shall be free of expense to each Indemnified Person for collection or other charges, and, whether or not any of the transactions contemplated hereby are consummated, Charterer agrees to pay and assume liability for, and does hereby agree to indemnify, protect, defend and hold harmless each Indemnified Person from and against, all taxes, assessments, fees and charges, together with any penalties, fines, additions to tax or Interest thereon, howsoever imposed, whether levied or imposed upon such Indemnified Person, Charterer, the Vessels or any part thereof by any federal, state or local government or governmental subdivision or taxing authority in the United States, by any foreign country or subdivision thereof, by any other foreign or international taxing authority or by any other authority having or asserted to have jurisdiction to tax, upon or with respect to, the Vessels or any part thereof; the manufacture, construction, acceptance, rejection, transfer, control, operation, condition, servicing, maintenance, repair, abandonment, replacement, purchase, sale, ownership, delivery, non-delivery, leasing, insuring, possession, use, improvement, transfer of title, return or other disposition thereof; the rentals, receipts or earnings arising therefrom; this Demise Charter and the other Transaction Documents (other than the Tax Indemnity Agreement) or any payment made pursuant thereto; or otherwise in connection with the transactions contemplated by the Transaction Documents (other than the Tax Indemnity Agreement) (all such taxes, assessments, fees, charges, penalties, fines, additions to tax and interest imposed as aforesaid, whether now existing or hereinafter enacted or adopted, being hereinafter called “Taxes”); excluding, however, the following:
(A) Taxes based on or measured by the net income, gross income (to the extent such gross income tax replaces or is dollar for dollar in lieu of a tax on net income) or net receipts of an Indemnified Person (including, but not limited to, any minimum Taxes, any capital gain Taxes, or value added Taxes to the extent such Taxes replace or are in lieu of a tax on net income) or Taxes on or measured by items of tax preference of an Indemnified Person, other than (i) Taxes in the nature of or in lieu of sales, use or rental taxes; and (ii) Taxes upon or with respect to indemnification payments made pursuant to this Article 17 which are imposed on such Indemnified Persons by the United States or any state or political subdivision thereof or by any foreign country, in which such Indemnified Person has a place of business;
(B) whether or not described in clause (A) above, (i) Taxes (other than taxes in the nature of sales, use or rental Taxes) imposed on an Indemnified Person that are, or are in the nature of, Taxes on, based upon, measured by or imposed with respect to gross receipts, (ii) any Taxes on or measured by capital, net worth or excess profits, (iii) any Taxes that are or are in the nature of capital stock taxes, franchise taxes or doing business taxes, and (iv) any additions to tax, surcharges, interest, penalties, fines or other charges in respect of any of the foregoing;
(C) Taxes included in Lessor’s Cost;
(D) Taxes resulting from the voluntary transfer by an Indemnified Person of any interest arising under the Transaction Documents or with respect to the Vessels (provided, however, that (x) except as otherwise provided in clause (y) which follows, a transfer required by the Transaction Documents shall not be considered a voluntary transfer, and (y) a transfer of an Owner Participant’s beneficial interest in the Trust as a result of the loss or prospective loss of its status as a Maritime Citizen shall be considered a voluntary transfer) unless such transfer shall occur as a result of Shipowner exercising its rights and remedies while an Event of Default shall have occurred and be continuing;
(E) any Tax attributable to any Vessels that is imposed with respect to any period after the earliest of the following events: (i) expiration of the Charter Period with respect to the Vessels; (ii) discharge in full of Charterer’s obligations to pay Stipulated Loss Value and any other amounts due by Charterer with respect to such Vessel under the Demise Charter, and (iii) the return of possession of such Vessel to Shipowner in accordance with Article 15 of the Demise Charter; provided, however, that this exception shall not apply to Taxes (including any interest, penalties, and additions to tax with respect thereto whether or not such amounts relate to a period after such expiration) relating to events occurring or matters arising prior to or simultaneously with such event;
(F) Taxes imposed on an Indemnified Person to the extent that such Taxes result from an Indemnified Person engaging in activities or transactions unrelated to any transaction contemplated by the Transaction Document;
(G) Taxes that are imposed as a result of any Indemnified Person not being a “United States person” as defined in Section 7701(a)(30) of the Code;
(H) Taxes that are imposed (i) as a result of the gross negligence, willful misconduct or bad faith of any Indemnified Person, or (ii) as a result of the inaccuracy or breach of a representation, warranty or covenant of any Indemnified Person in any Transaction Document;
(I) any Tax that is enacted or adopted as a substitute for or in lieu of any Tax that would not have been indemnified against pursuant to this Article 17;
(J) Taxes that have not been paid or credited and that are being contested in accordance with the provisions of Section 17(b) below, during the pendency of such contest;
(K) Taxes imposed as a result of any Indemnified Person’s failure to fulfill its obligations under Section 17(b) below;
(L) any interest, penalties, fines or additions to Tax attributable to the failure of an Indemnified Person to file any return properly and timely pursuant to its obligations under Section 17(d) below, except to the extent that such failure is a result of the failure of Charterer to fulfill its obligations, if any, under Section 17(d) below, with respect to such return or claim;
(M) Taxes imposed on an Indemnified Person to the extent of the excess of such Taxes over the amount of such Taxes that would have been imposed had there not been a transfer of a Vessel or any interest therein or in any Indemnified Person or any interest arising under any Transaction Document by any Indemnified Person; provided, however, that the exclusion set forth in this clause (M) shall not apply if any such transfer shall occur in connection with any foreclosure or pursuit of remedies (whether by Shipowner or otherwise) in connection with an Event of Default that has occurred and is continuing;
(N) Taxes imposed on an Indemnified Person that result from Shipowner’s Liens;
(O) any Tax resulting from any amendment or modification entered into by any Indemnified Person to any Transaction Document if Charterer is not a party to such amendment or modification and has not given its express written consent to such amendment or modification, unless (i) such amendment, modification, supplement, consent or waiver arises in connection with an Event of Default that has occurred and is continuing, or (ii) such amendment, modification, supplement, consent or waiver is required by the Transaction Documents or applicable law or is necessary or appropriate to, and is in conformity with, any other amendment, modification or supplement to any Transaction Document initiated, requested by or consented to by Charterer;
(P) Taxes that otherwise are the subject of an indemnity obligation of Charterer to the extent such Taxes are actually utilized by the Indemnified Person as a credit against Taxes otherwise payable by such Indemnified Person that are not indemnified hereunder;
(Q) Taxes imposed on an Indemnified Person in the nature of an intangible, stamp or similar Tax (other than any such tax imposed by any jurisdiction as a result of any Vessel being used or located, or the Transaction Documents being executed or delivered or the activities or presence of Charterer in such jurisdiction);
(R) Taxes which are subject to indemnification under the Tax Indemnity Agreement;
(S) Taxes imposed on or in connection with any transfer by any Indemnified Person by reason of any insolvency, bankruptcy, foreclosure or similar proceeding in respect of the Indemnified Person, other than any such proceeding arising as a result of an Event of Default; and
(T) any Tax to the extent such Tax would not have been imposed if an Indemnified Person was not organized in the jurisdiction imposing such Tax or did not maintain an office in that jurisdiction.
Appears in 2 contracts
Samples: Demise Charter (Tampa Electric Co), Demise Charter (Teco Energy Inc)
