Payment by Operator. (i) The Operator hereby agrees to pay and assume liability for, and on written demand to indemnify, protect, defend, save and hold harmless each Indemnitee from and against, any and all governmental or quasi-governmental fees (including without limitation license and registration fees), taxes (including without limitation gross receipts, franchise, sales, use, property, real or person, tangible or intangible), interest equalization and stamp taxes, assessments, levies, imposts, duties, charges or withholdings of any nature whatsoever, together with any and all penalties, fines or interest thereon ("Fees, Taxes and Other Charges") imposed against any Indemnitee, the Operator or the Facility or any portion thereof by any Federal, state or local governmental or taxing authority in the United States of America or by any foreign government or any subdivision or taxing authority thereof, upon or with respect to the occupation and operation of the Facility by the Operator and the production and sale of the Product. (ii) Notwithstanding anything to the contrary set forth above, the provisions of this Section 16.02 shall not apply to: (A) Fees, Taxes and Other Charges on, or measured in whole or in part by (y) the net income or gross income of an Indemnitee or (z) the franchise, capital, conduct of business, net worth or tax preference of an Indemnitee; (B) Fees, Taxes and Other Charges to the extent on, levied on, or measured by, any fees or compensation received by an Indemnitee for services rendered in connection with this Agreement; (C) Fees, Taxes and Other Charges which result from any Indemnitee engaged in activities not related to this Agreement; (D) So long as no Event of Default has occurred and is continuing, Fees, Taxes or other Charges imposed as a result of the voluntary sale, transfer, assignment or other disposition of any interest in the Facility by an Indemnitee, if such disposition shall not be pursuant to or in connection with Article XIV hereof; (E) Fees, Taxes or Other Charges imposed solely with respect to any period after the Term unless an Event of Default has occurred and is continuing and the Owner shall be exercising remedies with respect thereto; (F) Fees, Taxes or Other Charges imposed as the result of any transfer or disposition of any interest in the Facility by any Indemnitee resulting from bankruptcy or other proceedings for the relief of debtors (voluntary or involuntary) in which the transferor is the debtor; or (G) Fees, Taxes and Other Charges imposed solely as a result of the willful misconduct or gross negligence of the Indemnitee. (iii) In case any report or return is required to be made with respect to any obligations of the Operator under this Section 16.02 or arising out of this Section 16.02, the Operator shall, to the extent permitted by law, either make such report or return in such manner (including the making thereof in the Owner's name) as will show the ownership of the Equipment in the Owner and send a copy of such report or return to the Owner, or shall notify the Owner of such requirement and make such report or return in such manner as shall be reasonably satisfactory to the Owner. Each Indemnitee agrees that it will promptly forward to the Operator any notice, ▇▇▇▇ or any advice received by it concerning any such Fees, Taxes and Other Charges and will, at Operator's expense, use its best efforts and take such lawful and reasonable steps as may be proposed by the Operator in writing to minimize any of the same for which the Operator is responsible under this Section 16.02. (iv) The amount which the Operator shall be required to pay to or for the account of any Indemnitee with respect to any Fees, Taxes and Other Charges which are subject to indemnification under this Section 16.02 shall be an amount sufficient to restore the Indemnitee to the same position the Indemnitee would have been in had such Fees, Taxes and Other Charges not been incurred or imposed. If the payment by the Operator under this Section 16.02 of an amount equal to such Fees, Taxes and Other Charges would be more or less than the amount which would be required to make such Indemnitee whole as a result of any tax effect to an Indemnitee in connection with such payment of such Fees, Taxes and Other Charges, including, without limitation (A) the inclusion of any payment to be made by the Operator under this Section 16.02 in the taxable income of any Indemnitee in one year and the deduction of the Fees, Taxes and Other Charges with respect to which such payment is made from the taxable income of such Indemnitee in a different year, (B) the nondeductibility of such Fees, Taxes and Other Charges from the taxable income of such Indemnitee or (C) the anticipated realization by such Indemnitee in a different year of tax benefits resulting from the transaction giving rise to such Fees, Taxes and Other Charges, the amount of the indemnity to be paid by the Operator shall be adjusted to an amount which (after taking into account all tax effects on such Indemnitee, any loss of use of money resulting from differences in timing between the inclusion of such indemnity in the taxable income of such Indemnitee and the anticipated realization by such Indemnitee of tax benefits resulting from the transaction to which such indemnity is related and the present value of any anticipated future tax benefits to be realized by such Indemnitee as a result of deducting such Fees, Taxes and Other Charges or as a result of the transaction giving rise thereto) will be sufficient to place the Indemnitee in the same position such Indemnitee would have been in had such Fees, Taxes and Other Charges not been imposed. All computations for purposes hereof shall be based on tax rates in effect on the date payment pursuant to this Section 16.02 is made. Computations involving the loss of use of money or calculations of present value shall be based on the Overdue Rate as adjusted for applicable income tax effects and compounded monthly on the Basic Rent Payment Dates. Each Indemnitee shall in good faith use reasonable efforts to seek and claim all tax benefits available with respect to items referred to herein.
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Payment by Operator. (i) The Operator hereby agrees to pay and assume liability for, and on written demand to indemnify, protect, defend, save and hold harmless each Indemnitee from and against, any and all governmental or quasi-governmental fees (including without limitation license and registration fees), taxes (including without limitation gross receipts, franchise, sales, use, property, real or personpersonal, tangible or intangible), interest equalization and stamp taxes, assessments, levies, imposts, duties, charges or withholdings of any nature whatsoever, together with any and all penalties, fines or interest thereon ("Fees, Taxes and Other Charges") imposed against any Indemnitee, the Operator or the Facility or any portion thereof by any Federal, state or local governmental or taxing authority in the United States of America or by any foreign government or any subdivision or taxing authority thereof, upon or with respect to the occupation and operation of the Facility by the Operator and the production and sale of the Product.
(ii) Notwithstanding anything to the contrary set forth above, the provisions of this Section 16.02 shall not apply to:
(A) Fees, Taxes and Other Charges on, or measured in whole or in part by (y) the net income or gross income of an Indemnitee or (z) the franchise, capital, conduct of business, net worth or tax preference of an Indemnitee;
(B) Fees, Taxes and Other Charges to the extent on, levied on, or measured by, any fees or compensation received by an Indemnitee for services rendered in connection with this Agreement;
(C) Fees, Taxes and or Other Charges which result from any Indemnitee engaged in activities not related to this Agreement;
(D) So so long as no Event of Default has occurred and is continuing, Fees, Taxes or other Charges imposed as a result of the voluntary sale, transfer, assignment or other disposition of any interest in the Facility by an Indemnitee, if such disposition shall not be pursuant to or in connection with Article XIV hereof;
(E) Fees, Taxes or Other Charges imposed solely with respect to any period after the end of the Term unless an Event of Default has occurred and is continuing and the Owner shall be exercising remedies with respect thereto;
(F) Fees, Taxes or Other Charges imposed as the result of any transfer or disposition of any interest in the Facility by any Indemnitee resulting from bankruptcy or other proceedings for the relief of debtors (voluntary or involuntary) in which the transferor is the debtor; or
(G) Fees, Taxes and Other Charges imposed solely as a result of the willful misconduct or gross negligence of the Indemnitee.
(iii) In case any report or return is required to be made with respect to any obligations of the Operator under this Section 16.02 or arising out of this Section 16.02, the Operator shall, to the extent permitted by law, either make such report or return in such manner (including the making thereof in the Owner's name) as will show the ownership of the Equipment in the Owner and send a copy of such report or return to the Owner, or shall notify the Owner of such requirement and make such report or return in such manner as shall be reasonably satisfactory to the Owner. Each Indemnitee agrees that it will promptly forward to the Operator any notice, ▇▇bill ▇▇ or any advice received by it concerning any such Fees, Taxes and Other Charges and will, at Operator's expense, use its best efforts and take such lawful and reasonable steps as may be proposed by the Operator in writing to minimize any of the same for which the Operator is responsible under this Section 16.02.
(iv) The amount which the Operator shall be required to pay to or for the account of any Indemnitee with respect to any Fees, Taxes and Other Charges which are subject to indemnification under this Section 16.02 shall be an amount sufficient to restore the Indemnitee to the same position the Indemnitee would have been in had such Fees, Taxes and Other Charges not been incurred or imposed. If the payment by the Operator under this Section 16.02 of an amount equal to such Fees, Taxes and Other Charges would be more or less than the amount which would be required to make such Indemnitee whole as a result of any tax effect to an Indemnitee in connection with such payment of such Fees, Taxes and or Other Charges, including, without limitation (A) the inclusion of any payment to be made by the Operator under this Section 16.02 in the taxable income of any Indemnitee in one year and the deduction of the Fees, Taxes and Other Charges with respect to which such payment is made from the taxable income of such Indemnitee in a different year, (B) the nondeductibility of such Fees, Taxes and Other Charges from the taxable income of such Indemnitee or (C) the anticipated realization by such Indemnitee in a different year of tax benefits resulting from the transaction giving rise to such Fees, Taxes and Other Charges, the amount of the indemnity to be paid by the Operator shall be adjusted to an amount which (after taking into account all tax effects on such Indemnitee, any loss of use of money resulting from differences in timing between the inclusion of such indemnity in the taxable income of such Indemnitee and the anticipated realization by such Indemnitee of tax benefits resulting from the transaction to which such indemnity is related and the present value of any anticipated future tax benefits to be realized by such Indemnitee as a result of deducting such Fees, Taxes and Other Charges or as a result of the transaction giving rise thereto) will be sufficient to place the Indemnitee in the same position such Indemnitee would have been in had such Fees, Taxes and Other Charges not been imposed. All computations for purposes hereof shall be based on tax rates in effect on the date payment pursuant to this Section 16.02 is made. Computations involving the loss of use of money or calculations of present value shall be based on the Overdue Rate as adjusted for applicable income tax effects and compounded monthly on the Basic Rent Payment Dates. Each Indemnitee shall in good faith use reasonable efforts to seek and claim all tax benefits available with respect to items referred to herein.of
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