Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note: (a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period; (b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge; (c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein; (d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge; (e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France; (f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder; (g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005; (h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts; (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes; (j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or (k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 4 contracts
Sources: Indenture (CGG), Indenture (CGG Marine B.V.), Indenture (CGG Marine B.V.)
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (hereinafter “Taxes”) imposed unless the withholding or levied by or on behalf deduction of any jurisdiction in which the Company or any Guarantor (including any successor entities) such Taxes is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction required by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authoritylaw. If the Company any deduction or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for withholding for, or on account of of, any Taxes imposed or levied by or on behalf of the government of the Republic of ▇▇▇▇▇▇▇▇ Islands or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Company (including any successor entity) is organized or is otherwise resident for tax purposes, or any jurisdiction from or through which payment is made (including, without limitation, the jurisdiction of each paying agent) (each a Relevant Taxing Jurisdiction “Specified Tax Jurisdiction”), will at any time be required to be made from any payment payments made under or with respect to the Notes or the Subsidiary Guarantees, the Notes. The Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received in respect of such payments by such a Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable with respect to any Notedoes not apply to:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has any Taxes that would not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having have been so received, notice to that effect shall have been given to imposed but for the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents of the Notes having any present or other evidence concerning the nationality, residence, identity or former connection with the Relevant Taxing Specified Tax Jurisdiction (other than the mere acquisition, ownership, holding, enforcement or receipt of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice payment in respect of the Relevant Taxing Jurisdiction as a precondition to exemption from all Notes);
(2) any estate, inheritance, gift, sales, excise, transfer, personal property tax or part of such similar tax, assessment or governmental charge;
(c3) held any Taxes payable other than by deduction or on behalf withholding from payments under, or with respect to, the Notes;
(4) any Taxes imposed as a result of a the failure of the Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Notes to complete, execute and deliver to the Company any form or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, document to the extent applicable to such Holder or beneficial owner being that may be required by law or having been by reason of administration of such law and which is reasonably requested in writing to be delivered to the Company in order to enable the Company to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a citizen lesser amount, which form or resident thereof or being or having been present or engaged in document will be delivered within 60 days of a trade or business therein or having had a permanent establishment thereinwritten request therefor by the Company;
(d5) any Taxes that would not have been so imposed but for the beneficiary of the payment having presented a Note for payment (in cases in which presentation is required) more than 30 days after the date on account which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental chargesuch 30-day period);
(e6) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) Taxes imposed on or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any the Holder who if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment would not have been entitled to any Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holderactual Holder of such Note;
(g7) such withholding any Taxes that are required to be deducted or deduction is imposed or levied withheld on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg European Council Directive 2003/48/EC or any law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inimplementing, or (y) paid or accrued introduced in order to a person established or domiciled inconform to, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantordirective; or
(k) Any 8) any combination of items (a1) through (j7) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of .
(b) If the Company or by any Guarantor, becomes aware that it will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required obligated to pay any Additional Amounts in with respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payableNotes, if the Company or any Guarantor becomes obligated will deliver to pay Additional Amounts with respect the Trustee and Paying Agent at least 30 days prior to such the date of that payment (unless such the obligation to pay Additional Amounts arises after the 30th day prior to the date on which that payment under or with respect to the Notes or the Subsidiary Guarantees is due and payabledate, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each notify the Trustee and Paying Agent promptly thereafter but in no event later than two Business Days prior to the date of payment) an Officers’ Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amount so payable and will payable. The Officer’s Certificate shall also set forth such any other information as necessary to enable such the Paying Agent to pay such Additional Amounts to Holders on the relevant payment date. The Trustee and Paying Agent will be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Company will provide the Trustee and Paying Agent with documentation evidencing the payment of Additional Amounts.
(c) The Company will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant governmental authority on a timely basis in accordance with applicable law. As soon as practicable, the Company will provide the Trustee and Paying Agent with an official receipt or, if official receipts are not obtainable, other documentation evidencing the payment of the Taxes so withheld or deducted. Upon request, copies of those receipts or other documentation, as the case may be, will be made available by the Trustee and Paying Agent to the Holders of the Notes on the payment date. Notes.
(d) Whenever in the Indenture or this First Supplemental Indenture there is mentionedreferenced, in any context, (a) the payment of amounts based upon the principal (and premium, if any), (b) purchase prices in connection with a purchase amount of the NotesNotes or of principal, (c) interest or (d) any other amount payable on under, or with respect to any of to, the Notes or the Subsidiary GuaranteesNotes, such mention is reference will be deemed to include mention of the payment of Additional Amounts provided for in as described under this section heading to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(e) The Company will indemnify a Holder, within 10 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder to a governmental authority of a Specified Tax Jurisdiction, on or with respect to any payment by on or account of any obligation of the Company to withhold or deduct an amount on account of Taxes for which the Company would have been obliged to pay Additional Amounts hereunder and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant governmental authority. A certificate as to the amount of such payment or liability delivered to the Company by a Guarantor, as the case may be, Holder will be conclusive absent manifest error.
(f) The Company will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Specified Tax Jurisdiction from the initial issue execution, delivery, enforcement or registration of the Notes Notes, the Indenture or on any other document or instrument in relation thereof, or the enforcement receipt of any payments with respect to the Notes, any Subsidiary Guarantee, and the Indenture or any other documents related thereto (limited, in case of Taxes attributable to Company will indemnify the receipt of payments thereto, to Holders for any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer taxes paid by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinHolders.
Appears in 4 contracts
Sources: First Supplemental Indenture (Atlas Corp.), First Supplemental Indenture (Atlas Corp.), First Supplemental Indenture (Atlas Corp.)
Additional Amounts. (1) All payments made by or on behalf of the Company or any Guarantor under the Subsidiary Guarantors on or with respect to the Notes or the Subsidiary Guarantees will pursuant to this Indenture shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and Taxes imposed by any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Canadian Taxing Jurisdiction”)Authority, unless the Company required by law or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authorityCanadian Taxing Authority. If the Company or any Subsidiary Guarantor (or any Paying Agentother payor) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant any Canadian Taxing Jurisdiction Authority from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, it shall:
(i) make such withholding or deduction;
(ii) remit the full amount deducted or withheld to the relevant government authority in accordance with applicable law;
(iii) pay the additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder each holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder the holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(biv) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment furnish to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishHolders, within 60 30 days after the date the payment of any Taxes is due pursuant to applicable lawdue, to the Trustee, certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or such Subsidiary Guarantor;
(v) indemnify and hold harmless each Holder (other than an Excluded Holder, as defined in paragraph (2) below) for the amount of (a) any Guarantor. The Trustee will make Taxes paid by each such evidence available Holder as a result of payments made on or with respect to the Holders upon request. At Notes, (b) any liability (including penalties, interest and expenses) arising from or with respect to such payments and (c) any Taxes imposed with respect to any reimbursement under the foregoing clauses (a) or (b), but excluding any such Taxes that are in the nature of Taxes on net income, taxes on capital, franchise taxes, net worth taxes and similar taxes; and
(vi) at least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Subsidiary Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior payment, deliver to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date.
(2) Notwithstanding the provisions of paragraph (1) above, no Additional Amounts shall be payable to a person (an “Excluded Holder”) in respect of a payment made to such person under or with respect to a Note:
(i) if such person is subject to such Taxes by reason of its being connected with Canada or any province or territory thereof otherwise than by the mere acquisition, holding or disposition of Notes or the receipt of payments thereunder;
(ii) if such person waives its right to receive Additional Amounts;
(iii) if the Company or such Subsidiary Guarantor does not deal at arm’s length, within the meaning of the Income Tax Act (Canada), with such person at the time of such payment;
(iv) if the Company or such Subsidiary Guarantor does not deal at arm’s length, within the meaning of the Income Tax Act (Canada), with another person to whom the Company or such Subsidiary Guarantor has an obligation to pay an amount in respect of the Note; or
(v) to the extent that the Taxes giving rise to such Additional Amounts would not have been imposed but for such person being, or not dealing at arm’s-length (within the meaning of the Income Tax Act (Canada)) with, a “specified shareholder” of the Company for purposes of the thin capitalization rules in the Income Tax Act (Canada). Whenever in this Indenture there is mentionedAny reference, in any contextcontext in this Indenture, (a) to the payment of principal (and principal, premium, if any), (b) purchase prices in connection with a purchase redemption price, Change of the NotesControl Amount, (c) offer price and interest or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesNote, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above)payable. The obligations of the Company or any Guarantor described in under this Section 4.19 4.20 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer Company or any Guarantor Subsidiary Guarantor, as applicable, is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department organized or any political subdivision or taxing authority or agency thereof or therein. It is understood for purposes of this Section 4.20 that the determination of the amount of Additional Amounts shall be made at the beneficial owner level.
Appears in 4 contracts
Sources: Indenture (Videotron Ltee), Indenture (Quebecor Media Inc), Indenture (Quebecor Media Inc)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agenta Guarantor, if any) or other applicable withholding agent is so required by law to deduct or withhold taxes imposed by Bermuda or deduct any amount for or another Relevant Tax Jurisdiction on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect payments to the Notes or the Subsidiary GuaranteesHolders, the Company or any such Guarantor it will pay to each any Holder of the Notes that are outstanding on the date of the required payment, such so entitled all additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as that may be necessary so that the net every Net Payment of interest, principal, premium or other amount received by such Holder (including the Additional Amounts) after such withholding beneficial owner on that Note or deduction the Note Guarantee will not be less than the amount such Holder would have received if such Taxes had not been withheld provided for in that Note or deducted, provided that no Additional Amounts will be payable with respect to any Note:the Note Guarantee.
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of The Company (and Guarantors, if any) will also indemnify and reimburse Holders for:
(1) Taxes (including any interest, penalties and related expenses) imposed on the date on which such payment first became due and Holders (2) or if the full amount payable has a Holder is not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due dateowner, the date on which, the full amount having been so received, notice to that effect shall have been given beneficial owner) by a Relevant Tax Jurisdiction if and to the Holders except to the same extent that the a Holder or the beneficial owner would have been entitled to such Additional Amounts receive additional amounts if the Company (or a Guarantor) or other applicable withholding agent had been required to deduct or withhold those taxes from payments on surrendering such the Notes or the Note for payment on Guarantees; and
(2) Stamp, court, documentary or similar taxes or charges (including any day during interest, penalties and related expenses) imposed by a Relevant Tax Jurisdiction in connection with the applicable 30-day period;execution, delivery, enforcement or registration of the Notes or the Note Guarantees or other related documents and obligations.
(b) if The Company (or a Guarantor) will not pay additional amounts to any Holder for or on account of any of the following:
(1) Any tax, assessment or other governmental charge imposed solely because at any time there is imposed or withheld by reason was a connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of or possessor of power over the failure to comply by relevant Holder if the Holder oris an estate, nominee, trust, partnership, limited liability company, or corporation) and the Relevant Tax Jurisdiction imposing the tax (other than the mere receipt of a payment or the acquisition, ownership, disposition or holding of, or enforcement of rights under, a Note or the Note Guarantees);
(2) Any estate, inheritance, gift or any similar tax, assessment or other governmental charge;
(3) Any tax, assessment or other governmental charge imposed solely because such Holder (or if differentsuch Holder is not the beneficial owner, the beneficial owner (ayant-droitowner) of the Note fails to comply with a request addressed to such Holder or beneficial owner to provide informationany certification, documents identification or other evidence reporting requirement concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction taxing jurisdiction of such Holder or any beneficial owner which of the Note or the Note Guarantees, if compliance is required by law or imposed by an applicable income tax treaty to which the jurisdiction imposing the tax is a statuteparty, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to an exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of charge for which such Holder is eligible and the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereofa Guarantor) or an intergovernmental agreement between has given the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, Holders at least 60 days’ notice that Holders will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company provide such information and identification; and
(4) Any tax, assessment or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or other governmental charge with respect to the Notes a Note or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such a Note Guarantee presented for payment (unless such obligation to pay Additional Amounts arises more than 30 days after the 30th day prior to the date on which payment under became due and payable or with respect the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact extent that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders Holder of the Notes Note would have been entitled to additional amounts on presenting the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided Note for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on any date during the Notes and any department or any political subdivision thereof or therein30-day period.
Appears in 4 contracts
Sources: Indenture (Aircastle LTD), Indenture (Aircastle LTD), Indenture (Aircastle LTD)
Additional Amounts. All payments made (a) The Company hereby agrees that any amounts to be paid by or on behalf of the Company or any Guarantor under or with respect to the Notes each Security shall be paid without deduction or the Subsidiary Guarantees will be made free withholding for any and clear of all present and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levy, impost, assessment imposts or other governmental charge (including without limitationcharges whatsoever imposed, penaltiesassessed, interest and any other liability with respect thereto) (“Taxes”) imposed levied or levied collected by or on behalf for the account of any jurisdiction in which (i)(x) the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United Kingdom or any political subdivision or taxing authority thereof or therein (y) the jurisdiction of tax residence (other than the United States or any political subdivision or taxing authority thereof) of a successor entity to the Company pursuant to Section 8.1, to the extent that such taxes, levies, imposts or other governmental charges first become applicable as a result of such successor entity becoming the obligor on the Securities, or (ii) any other jurisdiction by (other than the United States, or any political subdivision or taxing authority thereof) from or through which payment any amount is made paid by the Company hereunder or where it is resident or maintains a place of business or permanent establishment (each, each jurisdiction described in Clauses (i) and (ii) above is referred to herein as a “Relevant Taxing Jurisdiction” and such taxes, levies, imposts or other governmental charges are referred to as “Taxes”), unless the Company withholding or any Guarantor (or any Paying Agent) deduction of such Tax is required to withhold or deduct Taxes under the compelled by laws of the Relevant United Kingdom, or any other applicable Taxing Jurisdiction Jurisdiction. If any deduction or withholding of any Taxes (other than Excluded Taxes, as defined below) is ever required by the interpretation or administration thereof by the relevant taxing authority. If the Company United Kingdom or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant other Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesJurisdiction, the Company shall (subject to compliance by the Holder or beneficial owner of each Security with any such Guarantor will applicable administrative requirements) pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that required to make the net amount received by amounts paid to each Holder of such Holder (including Security or the Additional Amounts) Trustee pursuant to the terms of this Indenture or the Securities, after such withholding deduction or deduction will not be less than withholding, equal to the amount amounts of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, to which such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment Trustee is entitled. However, the Company shall not be required to pay Additional Amounts in respect of principal more than 30 days after the later of following Taxes (“Excluded Taxes”):
(1) the date on which such payment first became due and (2) if the full amount payable has not been received by any present or on behalf future Taxes imposed, assessed, levied or collected as a result of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of a Security (i) being organized under the laws of, or otherwise being or having been a domiciliary, national or resident of, (ii) being engaged or having been engaged in a trade or business in, (iii) having or having had its principal office located in, (iv) maintaining or having maintained a permanent establishment in, (v) being or having been physically present in, or (vi) otherwise having or having had some connection (other than the connection arising from holding or owning such Security, or collecting principal and interest, if any, on, or the enforcement of, such Security) with the United Kingdom or any other applicable Taxing Jurisdiction;
(2) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was presented more than thirty days after the date the payment became due or was provided for, whichever is later;
(3) any present or future Taxes imposed under Sections 1471-1474 of the United States Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder, or any present or future Taxes imposed under comparable provisions of non-United States tax law;
(4) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the failure to provide informationmake any certification, documents identification or other evidence report concerning the nationality, residence, identity or connection with the Relevant United Kingdom or any other applicable Taxing Jurisdiction of such the Holder or beneficial owner which is required of such Security or imposed by claim for relief or exemption, if making such a statutecertification, treatyidentification, regulation other report or administrative practice claim is, under the laws, rules or regulations of the Relevant Taxing Jurisdiction as any such jurisdiction, a precondition condition to relief or exemption from all or part of such tax, assessment or governmental chargeTaxes;
(c5) held by any present or future Taxes imposed on behalf of a payment to a Holder and required to be made pursuant to any law implementing European Council Directive 2003/48/EC or any other directive implementing the beneficial owner who is liable for Taxes in respect conclusions of such Note by reason the ECOFIN Council meeting of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding 26-27 November 2000 or disposition of any Notelaw implementing or complying with, or the receipt of payments made by or on behalf of the Company or any Guarantor introduced in respect thereof or any Subsidiary Guarantee, including, without limitationorder to conform to, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment thereindirective;
(d6) any present or future Taxes imposed on account a payment to, or with respect to, a Holder who would have been able to avoid such Taxes by presenting the relevant Security to a paying agent in a member state of the European Union;
(7) any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment Tax or other governmental charge;duty; or
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of 8) any combination of Clauses (a)1) through (7) above; provided further, (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor that no such Additional Amounts shall be payable in respect of any Note or Subsidiary Guarantee to Security held by (x) any Holder who or beneficial owner that is a fiduciary or partnership or other than not the sole beneficial owner of such payment Security, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner owner, partner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to any such Additional Amounts had such beneficiary the beneficiary, settlor, beneficial owner, partner or settlor or beneficial owner member been the Holder;
(g) direct holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inSecurity, or (y) paid or accrued to any Holder that is not a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A resident of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect United States to the Notes;
(j) when extent that, had such withholding or deduction is required to be made by reason Holder been a resident of the Holder or United States and eligible for the beneficial owner of the Note concurrently being a shareholder of the Company or benefit of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement double taxation treaty between the United States and another jurisdiction facilitating the implementation thereof applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security, such Holder would not have been entitled to such Additional Amounts, or (z) any Holder that is a resident of the United States but that is not eligible for the benefit of any double taxation treaty between the United States and the applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security (but only to the extent the amount of such deduction or any fiscal or regulatory legislation, rules or practices implementing withholding exceeds that which would have been required had such an intergovernmental agreement) (any such withholding or deduction, Holder of a “FATCA Withholding”Security been so eligible and made all relevant claims). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will successor to the Company, as the case may be, agrees to indemnify and hold harmless each Holder of a Security and upon written request reimburse each Holder for the amount of (i) any Taxes levied or imposed and paid by such Holder of a Security (other than Excluded Taxes) as a result of payments made with respect to such Security, (ii) any liability (including penalties, interest and expenses) arising therefrom with respect thereto, and (iii) any Taxes (other than Excluded Taxes) with respect to payment of Additional Amounts or any reimbursement pursuant to this sentence, in each case, to the extent not otherwise reimbursed by the payment of any Additional Amount and not excluded from the requirement to pay Additional Amounts, as described above. The Company or any successor to the Company, as the case may be, shall also (i) make such withholding or deduction to the extent required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishor any successor to the Company, as the case may be, shall furnish the Trustee within 60 30 days after the date the payment of any such Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to evidencing the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available successor to the Holders upon requestCompany, as the case may be, or other evidence of such payment reasonably satisfactory to the Trustee. It is understood, however, that the Trustee is under no obligation to request such certified copies of tax receipts evidencing the payment. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)those payments, the Company will shall deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and stating the amount so amounts that will be payable and will set setting forth such any other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in this Indenture or any Security there is mentioned, in any context, (a) the payment of principal (and the principal, premium, if any), (b) purchase prices or interest, or sinking fund or analogous payment, if any, in connection with a purchase respect of the Notes, (c) such Security or overdue principal or overdue interest or (d) any other amount payable on overdue sinking fund or with respect to any of the Notes or the Subsidiary Guaranteesanalogous payment, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section herein to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as thereof pursuant to the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic provisions of France or this Section and express mention thereof in any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which a Paying Agent those provisions hereof where such express mention is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto not made (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveif applicable). The obligations of the Company or (and any Guarantor described in successor entity to the Company pursuant to Section 8.1) under this Section 4.19 will 10.5 shall survive any termination, defeasance or satisfaction and discharge the termination of this Indenture and the payment of all amounts under or with respect to the Securities.
(b) Each Holder of a Security, by acceptance of such Security, agrees that, with reasonable promptness after receiving written notice from the Company to the effect that such ▇▇▇▇▇▇ is eligible for a refund in respect of Taxes actually paid by the Company pursuant to this Section 10.5, such Holder will sign and deliver, as reasonably directed by the Company, any transfer form provided to such Holder by the Company to enable such Holder to obtain a refund in respect of such Taxes; and if such Holder thereafter receives such refund in respect of such Taxes, such Holder will promptly pay such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority). If a Holder applies for a refund of such Taxes prior to a request by the Company to apply for such a refund, the Holder will, upon receipt of a request by the Company to apply for, or to turn over the proceeds of, any such refund, pay any such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority), promptly upon receipt of such refund. The Company shall pay all reasonable out-of-pocket expenses incurred by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction Holder in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which connection with obtaining such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinrefund.
Appears in 3 contracts
Sources: Indenture (Carnival PLC), Indenture (Carnival PLC), Indenture (Carnival PLC)
Additional Amounts. All Any payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees Debenture will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment Tax or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”)charge, unless the Company or any Guarantor (or any Paying Agent) other payor is required to withhold or deduct such Taxes under the laws of the Relevant Taxing Jurisdiction by applicable law or by the interpretation or administration thereof by the relevant taxing authorityGovernmental Authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes Debenture (including for greater certainty, the delivery of Common Shares or other property in connection with the Subsidiary Guaranteesexercise of a conversion right or otherwise), then, with respect to Indemnified Taxes (including Other Taxes), the Company or any such Guarantor will pay to each the Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount Amounts received by such Holder (including the Additional Amounts) by the Holder after such withholding or deduction (including any withholding or deduction required to be made in respect of any Additional Amounts) will not be less than the amount such the Holder would have received (including for greater certainty, the full amount of any Common Shares or other property to which the Holder is entitled under the Debenture in connection with the exercise of a conversion right, payment on Maturity or otherwise) if such Indemnified Taxes (including Other Taxes) had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company will make all withholdings or any Guarantor deductions required by applicable law and will also make such withholding or deduction and remit the full amount withheld or deducted or withheld to the relevant authority Governmental Authority as and when required by applicable law and as soon as practicable thereafter will deliver to the Holder the original or certified copy of a receipt issued by such Governmental Authority evidencing such payment or other evidence of such payment reasonably satisfactory to the Holder. The Company shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law. The Company will furnishTo the extent that withholdings or deductions apply to any payment to be made to the Holder, within 60 days after if the date Holder is entitled to an exemption from or reduction in the payment rate of any Taxes is due pursuant withholding Tax with respect to any payments hereunder, the Holder shall deliver to the Company, at the time or times reasonably requested by the Company and at the time or times prescribed by applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made properly completed and executed documentation reasonably requested by the Company or prescribed by applicable law as will permit such payments to be made without withholding (including FATCA withholding, if applicable) or at a reduced rate of withholding. In addition, the Holder, if requested by the Company, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Company as will enable the Company to determine whether or not such Holder is subject to withholding, backup withholding or information reporting requirements, provided that no Holder shall be required to deliver any Guarantordocumentation pursuant to this Section 2.3 that such Holder is not legally able to deliver. The Trustee will make such evidence available Notwithstanding anything herein to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payablecontrary, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, this Section 2.3 and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 thereunder will survive any termination, defeasance or satisfaction and discharge the repayment of this Indenture or any transfer by a holder or beneficial owner Debenture and the termination of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinthis Debenture.
Appears in 3 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement, Securities Purchase Agreement
Additional Amounts. All payments made (a) The Company hereby agrees that any amounts to be paid by or on behalf of the Company or any Guarantor under or with respect to the Notes each Security shall be paid without deduction or the Subsidiary Guarantees will be made free withholding for any and clear of all present and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levy, impost, assessment imposts or other governmental charge (including without limitationcharges whatsoever imposed, penaltiesassessed, interest and any other liability with respect thereto) (“Taxes”) imposed levied or levied collected by or on behalf for the account of any jurisdiction in which (i)(x) the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes Republic of Panama or any political subdivision or taxing authority thereof or therein (y) the jurisdiction of incorporation (other than the United States or any political subdivision or taxing authority thereof) of a successor entity to the Company pursuant to Section 8.1, to the extent that such taxes, levies, imposts or other governmental charges first become applicable as a result of such successor entity becoming the obligor on the Securities, or (ii) any other jurisdiction by (other than the United States or any political subdivision or taxing authority thereof) from or through which payment any amount is made paid by the Company hereunder or where it is resident or maintains a place of business or permanent establishment (each, each jurisdiction described in Clauses (i) and (ii) above is referred to herein as a “Relevant Taxing Jurisdiction” and such taxes, levies, imposts or other governmental charges are referred to as “Taxes”), unless the Company withholding or any Guarantor (or any Paying Agent) deduction of such Tax is required to withhold or deduct Taxes under the compelled by laws of the Relevant Republic of Panama or any other applicable Taxing Jurisdiction Jurisdiction. If any deduction or withholding of any Taxes (other than Excluded Taxes, as defined below) is ever required by the interpretation or administration thereof by the relevant taxing authority. If the Company Republic of Panama or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant other Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesJurisdiction, the Company shall (subject to compliance by the Holder or beneficial owner of each Security with any such Guarantor will applicable administrative requirements) pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that required to make the net amount received by amounts paid to each Holder of such Holder (including Security or the Additional Amounts) Trustee pursuant to the terms of this Indenture or the Securities, after such withholding deduction or deduction will not be less than withholding, equal to the amount amounts of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, to which such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment Trustee is entitled. However, the Company shall not be required to pay Additional Amounts in respect of principal more than 30 days after the later of following Taxes (“Excluded Taxes”):
(1) the date on which such payment first became due and (2) if the full amount payable has not been received by any present or on behalf future Taxes imposed, assessed, levied or collected as a result of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of a Security (i) being organized under the laws of, or otherwise being or having been a domiciliary, national or resident of, (ii) being engaged or having been engaged in a trade or business in, (iii) having or having had its principal office located in, (iv) maintaining or having maintained a permanent establishment in, (v) being or having been physically present in, or (vi) otherwise having or having had some connection (other than the connection arising from holding or owning such Security, or collecting principal and interest, if any, on, or the enforcement of, such Security) with the Republic of Panama or any other applicable Taxing Jurisdiction;
(2) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was presented more than thirty days after the date the payment became due or was provided for, whichever is later;
(3) any present or future Taxes imposed under Sections 1471-1474 of the United States Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder, or any present or future Taxes imposed under comparable provisions of non-United States tax law;
(4) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the failure to provide informationmake any certification, documents identification or other evidence report concerning the nationality, residence, identity or connection with the Relevant Republic of Panama or any other applicable Taxing Jurisdiction of such the Holder or beneficial owner which is required of such Security or imposed by claim for relief or exemption, if making such a statutecertification, treatyidentification, regulation other report or administrative practice claim is, under the laws, rules or regulations of the Relevant Taxing Jurisdiction as any such jurisdiction, a precondition condition to relief or exemption from all or part of such tax, assessment or governmental chargeTaxes;
(c5) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment Tax or other governmental charge;duty; or
(e6) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of Clauses (a1), (b2), (c3), (d4) or and (e5) or with respect to any payment made by or on behalf of the Company or any Guarantor above; provided further, that no such Additional Amounts shall be payable in respect of any Note or Subsidiary Guarantee to Security held by (x) any Holder who or beneficial owner that is a fiduciary or partnership or other than not the sole beneficial owner of such payment Security, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner owner, partner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to any such Additional Amounts had such beneficiary the beneficiary, settlor, beneficial owner, partner or settlor or beneficial owner member been the Holder;
(g) direct holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inSecurity, or (y) paid or accrued to any Holder that is not a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A resident of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect United States to the Notes;
(j) when extent that, had such withholding or deduction is required to be made by reason Holder been a resident of the Holder United States and eligible (taking into account any applicable limitation on benefits article or similar provision) for the beneficial owner of the Note concurrently being a shareholder of the Company or benefit of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement double taxation treaty between the United States and another jurisdiction facilitating the implementation thereof applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security, such Holder would not have been entitled to such Additional Amounts, or (z) any Holder that is a resident of the United States but that is not eligible for the benefit of any double taxation treaty between the United States and the applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security (but only to the extent the amount of such deduction or any fiscal or regulatory legislation, rules or practices implementing withholding exceeds that which would have been required had such an intergovernmental agreement) (any such withholding or deduction, Holder of a “FATCA Withholding”Security been so eligible and made all relevant claims). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will successor to the Company, as the case may be, agrees to indemnify and hold harmless each Holder of a Security and upon written request reimburse each Holder for the amount of (i) any Taxes levied or imposed and paid by such Holder of a Security (other than Excluded Taxes) as a result of payments made with respect to such Security, (ii) any liability (including penalties, interest and expenses) arising therefrom with respect thereto, and (iii) any Taxes (other than Excluded Taxes) with respect to payment of Additional Amounts or any reimbursement pursuant to this sentence, in each case, to the extent not otherwise reimbursed by the payment of any Additional Amount and not excluded from the requirement to pay Additional Amounts, as described above. The Company or any successor to the Company, as the case may be, shall also (i) make such withholding or deduction to the extent required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishor any successor to the Company, as the case may be, shall furnish the Trustee within 60 30 days after the date the payment of any such Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to evidencing the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available successor to the Holders upon requestCompany, as the case may be, or other evidence of such payment reasonably satisfactory to the Trustee. It is understood, however, that the Trustee is under no obligation to request such certified copies of tax receipts evidencing the payment. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)those payments, the Company will shall deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and stating the amount so amounts that will be payable and will set setting forth such any other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in this Indenture or any Security there is mentioned, in any context, (a) the payment of principal (and the principal, premium, if any), (b) purchase prices or interest, or sinking fund or analogous payment, if any, in connection with a purchase respect of the Notes, (c) such Security or overdue principal or overdue interest or (d) any other amount payable on overdue sinking fund or with respect to any of the Notes or the Subsidiary Guaranteesanalogous payment, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section herein to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as thereof pursuant to the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic provisions of France or this Section and express mention thereof in any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which a Paying Agent those provisions hereof where such express mention is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto not made (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveif applicable). The obligations of the Company or (and any Guarantor described in successor entity to the Company pursuant to Section 8.1) under this Section 4.19 will 10.5 shall survive any termination, defeasance or satisfaction and discharge the termination of this Indenture and the payment of all amounts under or with respect to the Securities.
(b) Each Holder of a Security, by acceptance of such Security, agrees that, with reasonable promptness after receiving written notice from the Company to the effect that such ▇▇▇▇▇▇ is eligible for a refund in respect of Taxes actually paid by the Company pursuant to this Section 10.5, such Holder will sign and deliver, as reasonably directed by the Company, any transfer form provided to such Holder by the Company to enable such Holder to obtain a refund in respect of such Taxes; and if such Holder thereafter receives such refund in respect of such Taxes, such Holder will promptly pay such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority). If a Holder applies for a refund of such Taxes prior to a request by the Company to apply for such a refund, the Holder will, upon receipt of a request by the Company to apply for, or to turn over the proceeds of, any such refund, pay any such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority), promptly upon receipt of such refund. The Company shall pay all reasonable out-of-pocket expenses incurred by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction Holder in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which connection with obtaining such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinrefund.
Appears in 3 contracts
Sources: Indenture (Carnival PLC), Indenture (Carnival PLC), Indenture (Carnival PLC)
Additional Amounts. All payments made (a) The Company hereby agrees that any amounts to be paid by or on behalf of the Company or any Guarantor under or with respect to the Notes each Security shall be paid without deduction or the Subsidiary Guarantees will be made free withholding for any and clear of all present and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levy, impost, assessment imposts or other governmental charge (including without limitationcharges whatsoever imposed, penaltiesassessed, interest and any other liability with respect thereto) (“Taxes”) imposed levied or levied collected by or on behalf for the account of any jurisdiction in which (i)(x) the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United Kingdom or any political subdivision or taxing authority thereof or therein (y) the jurisdiction of tax residence (other than the United States or any political subdivision or taxing authority thereof) of a successor entity to the Company pursuant to Section 8.1, to the extent that such taxes, levies, imposts or other governmental charges first become applicable as a result of such successor entity becoming the obligor on the Securities, or (ii) any other jurisdiction by (other than the United States, or any political subdivision or taxing authority thereof) from or through which payment any amount is made paid by the Company hereunder or where it is resident or maintains a place of business or permanent establishment (each, each jurisdiction described in Clauses (i) and (ii) above is referred to herein as a “Relevant Taxing Jurisdiction” and such taxes, levies, imposts or other governmental charges are referred to as “Taxes”), unless the Company withholding or deduction of such Tax is compelled by laws of the United Kingdom, or any Guarantor other applicable Taxing Jurisdiction. If any deduction or withholding of any Taxes (other than Excluded Taxes, as defined below) is ever required by the United Kingdom or any other Taxing Jurisdiction, the Company shall (subject to compliance by the Holder or beneficial owner of each Security with any applicable administrative requirements) pay such additional amounts (“Additional Amounts”) required to make the net amounts paid to each Holder of such Security or the Trustee pursuant to the terms of this Indenture or the Securities, after such deduction or withholding, equal to the amounts of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, to which such Holder or the Trustee is entitled. However, the Company shall not be required to pay Additional Amounts in respect of the following Taxes (“Excluded Taxes”):
(1) any present or future Taxes imposed, assessed, levied or collected as a result of the Holder or beneficial owner of a Security (i) being organized under the laws of, or otherwise being or having been a domiciliary, national or resident of, (ii) being engaged or having been engaged in a trade or business in, (iii) having or having had its principal office located in, (iv) maintaining or having maintained a permanent establishment in, (v) being or having been physically present in, or (vi) otherwise having or having had some connection (other than the connection arising solely from holding or owning such Security, or collecting principal and interest, if any, on, or the enforcement of, such Security) with the United Kingdom or any other applicable Taxing Jurisdiction;
(2) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was presented more than thirty days after the date the relevant payment is first made available for payment to the Holder or beneficial owner;
(3) any present or future Taxes imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any Paying Agentrelated law or administrative practices or procedures) is required implementing the foregoing or any agreements entered into pursuant to withhold or deduct Taxes under the laws current Section 1471(b)(1) of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor Code (or any Paying Agentamended or successor version described above);
(4) is so required to withhold any present or deduct future Taxes payable other than by deduction or withholding from payments under, or with respect to, any amount for Security;
(5) any present or on account of future Taxes imposed in connection with a Security presented for payment (where presentation is permitted or levied required for payment) by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of the Security to provide informationthe extent such Taxes could have been avoided by presenting the relevant Security to, documents or otherwise accepting payment from, another Paying Agent;
(6) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the failure to make any certification, identification or other evidence report concerning the nationality, residence, identity or connection with the Relevant United Kingdom or any other applicable Taxing Jurisdiction of such the Holder or beneficial owner which is required of such Security or imposed by claim for relief or exemption, if making such a statutecertification, treatyidentification, regulation other report or administrative practice claim is, under the laws, rules or regulations of the Relevant Taxing Jurisdiction as any such jurisdiction, a precondition condition to relief or exemption from all or part of such tax, assessment or governmental chargeTaxes;
(c7) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment Tax or other governmental charge;duty; or
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of 8) any combination of Clauses (a)1) through (7) above; provided further, (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor that no such Additional Amounts shall be payable in respect of any Note or Subsidiary Guarantee to Security held by (x) any Holder who or beneficial owner that is a fiduciary or partnership or other than not the sole beneficial owner of such payment Security, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner owner, partner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to any such Additional Amounts had such beneficiary the beneficiary, settlor, beneficial owner, partner or settlor or beneficial owner member been the Holder;
(g) direct holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inSecurity, or (y) paid or accrued to any Holder that is not a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A resident of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect United States to the Notes;
(j) when extent that, had such withholding or deduction is required to be made by reason Holder been a resident of the Holder or United States and eligible for the beneficial owner of the Note concurrently being a shareholder of the Company or benefit of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement double taxation treaty between the United States and another jurisdiction facilitating the implementation thereof applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security, such Holder would not have been entitled to such Additional Amounts, or (z) any Holder that is a resident of the United States but that is not eligible for the benefit of any double taxation treaty between the United States and the applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security (but only to the extent the amount of such deduction or any fiscal or regulatory legislation, rules or practices implementing withholding exceeds that which would have been required had such an intergovernmental agreement) (any such withholding or deduction, Holder of a “FATCA Withholding”Security been so eligible and made all relevant claims). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will successor to the Company, as the case may be, agrees to indemnify and hold harmless each Holder of a Security and upon written request reimburse each Holder for the amount of (i) any Taxes levied or imposed and paid by such Holder of a Security (other than Excluded Taxes) as a result of payments made with respect to such Security, (ii) any liability (including penalties, interest and expenses) arising therefrom with respect thereto, and (iii) any Taxes (other than Excluded Taxes) with respect to payment of Additional Amounts or any reimbursement pursuant to this sentence, in each case, to the extent not otherwise reimbursed by the payment of any Additional Amount and not excluded from the requirement to pay Additional Amounts, as described above. The Company or any successor to the Company, as the case may be, shall also (i) make such withholding or deduction to the extent required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishor any successor to the Company, as the case may be, shall furnish the Trustee within 60 30 days after the date the payment of any such Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to evidencing the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available successor to the Holders upon requestCompany, as the case may be, or other evidence of such payment reasonably satisfactory to the Trustee. It is understood, however, that the Trustee is under no obligation to request such certified copies of tax receipts evidencing the payment. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)those payments, the Company will shall deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and stating the amount so amounts that will be payable and will set setting forth such any other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in this Indenture or any Security there is mentioned, in any context, (a) the payment of principal (and the principal, premium, if any), (b) purchase prices or interest, or sinking fund or analogous payment, if any, in connection with a purchase respect of the Notes, (c) such Security or overdue principal or overdue interest or (d) any other amount payable on overdue sinking fund or with respect to any of the Notes or the Subsidiary Guaranteesanalogous payment, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section herein to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as thereof pursuant to the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic provisions of France or this Section and express mention thereof in any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which a Paying Agent those provisions hereof where such express mention is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto not made (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveif applicable). The obligations of the Company or (and any Guarantor described in successor entity to the Company pursuant to Section 8.1) under this Section 4.19 will 10.5 shall survive any termination, defeasance or satisfaction and discharge the termination of this Indenture and the payment of all amounts under or with respect to the Securities.
(b) Each Holder of a Security, by acceptance of such Security, agrees that, with reasonable promptness after receiving written notice from the Company to the effect that such ▇▇▇▇▇▇ is eligible for a refund in respect of Taxes actually paid by the Company pursuant to this Section 10.5, such Holder will sign and deliver, as reasonably directed by the Company, any transfer form provided to such Holder by the Company to enable such Holder to obtain a refund in respect of such Taxes; and if such Holder thereafter receives such refund in respect of such Taxes, such Holder will promptly pay such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority). If a Holder applies for a refund of such Taxes prior to a request by the Company to apply for such a refund, the Holder will, upon receipt of a request by the Company to apply for, or to turn over the proceeds of, any such refund, pay any such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority), promptly upon receipt of such refund. The Company shall pay all reasonable out-of-pocket expenses incurred by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction Holder in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which connection with obtaining such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinrefund.
Appears in 3 contracts
Sources: Indenture (Carnival PLC), Indenture (Carnival PLC), Indenture (Carnival PLC)
Additional Amounts. (1) All payments made by or on behalf of the Company or any Guarantor under the Subsidiary Guarantors on or with respect to the Notes or the Subsidiary Guarantees will pursuant to this Indenture shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and Taxes imposed by any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Canadian Taxing Jurisdiction”)Authority, unless the Company required by law or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authorityCanadian Taxing Authority. If the Company or any Subsidiary Guarantor (or any Paying Agentother payor) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant any Canadian Taxing Jurisdiction Authority from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, it shall:
(i) make such withholding or deduction;
(ii) remit the full amount deducted or withheld to the relevant government authority in accordance with applicable law;
(iii) pay the additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such each Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such the Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(biv) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment furnish to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishHolders, within 60 30 days after the date the payment of any Taxes is due pursuant to applicable lawdue, to the Trustee, certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or such Subsidiary Guarantor;
(v) indemnify and hold harmless each Holder (other than an Excluded Holder, as defined in paragraph (2) below) for the amount of (a) any Guarantor. The Trustee will make Taxes paid by each such evidence available Holder as a result of payments made on or with respect to the Holders upon request. At Notes, (b) any liability (including penalties, interest and expenses) arising from or with respect to such payments and (c) any Taxes imposed with respect to any reimbursement under the foregoing clauses (a) or (b), but excluding any such Taxes that are in the nature of Taxes on net income, taxes on capital, franchise taxes, net worth taxes and similar taxes; and
(vi) at least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Subsidiary Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior payment, deliver to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date.
(2) Notwithstanding the provisions of paragraph (1) above, no Additional Amounts shall be payable to a Person (an “Excluded Holder”) in respect of a payment made to such Person under or with respect to a Note:
(i) if such Person is subject to such Taxes by reason of its being connected with Canada or any province or territory thereof otherwise than by the mere acquisition, holding or disposition of Notes or the receipt of payments thereunder;
(ii) if such Person waives its right to receive Additional Amounts;
(iii) if the Company or such Subsidiary Guarantor does not deal at arm’s length, within the meaning of the Income Tax Act (Canada) (the “Tax Act”), with such Person at the time of such payment;
(iv) if the Company or such Subsidiary Guarantor does not deal at arm’s length, within the meaning of the Tax Act, with another Person to whom the Company or such Subsidiary Guarantor has an obligation to pay an amount in respect of the Note; or
(v) to the extent that the Taxes giving rise to such Additional Amounts would not have been imposed but for such person being, or not dealing at arm’s length (within the meaning of the Tax Act) with, a “specified shareholder” of the Company for purposes of the thin capitalization rules in the Tax Act. Whenever in this Indenture there is mentionedAny reference, in any contextcontext in this Indenture, (a) to the payment of principal (and principal, premium, if any), (b) purchase prices in connection with a purchase redemption price, Change of the NotesControl Payment, (c) offer price and interest or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesNote, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above)payable. The obligations of the Company or any Guarantor described in under this Section 4.19 4.20 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer Company or any Guarantor Subsidiary Guarantor, as applicable, is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department organized or any political subdivision or taxing authority or agency thereof or therein. It is understood for purposes of this Section 4.20 that the determination of the amount of Additional Amounts shall be made at the beneficial owner level.
Appears in 3 contracts
Sources: Indenture (Videotron Ltee), Indenture (Quebecor Media Inc), Indenture (Videotron Ltee)
Additional Amounts. 2.6.1 All payments made by or on behalf account of any obligation of the Company or any Guarantor Issuer under or with respect to the TCPL Sub Notes or the Subsidiary Guarantees will - Series 2016-A shall be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company Government of Canada or any Guarantor (including any successor entities) is then organized province or resident for tax purposes or any political subdivision territory thereof or by any authority or agency therein or any jurisdiction by or through which payment is made thereof having power to tax (eachhereinafter, a “Relevant Taxing JurisdictionCanadian Taxes”), unless or, in the Company or any Guarantor (or any Paying Agent) event that a Successor Entity that is required to withhold or deduct Taxes organized under the laws of a jurisdiction other than the Relevant Taxing Jurisdiction laws of Canada or any province of territory thereof is substituted for the Issuer pursuant to Article 8 of the Original Indenture, by or on behalf of the government of such successor jurisdiction or any subdivision thereof or by any authority or agency therein or thereof having power to tax.
2.6.2 For so long as the interpretation or administration thereof by Trust is the relevant taxing authority. If holder of TCPL Sub Notes — Series 2016-A, if the Company or any Guarantor (or any Paying Agent) Trust is so required to withhold or deduct any amount for or on account of Canadian Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Trust Notes or the Subsidiary Guarantees- Series 2016-A, the Company or any such Guarantor will Issuer shall pay to each Holder of the Notes that are outstanding on the date of the required payment, as additional interest such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the Trust may provide a net amount received by such Holder to each holder of Trust Notes — Series 2016-A (including the Additional Amounts) after such withholding or deduction will shall not be less than the amount such Holder holder of Trust Notes — Series 2016-A would have received if such Canadian Taxes had not been withheld or deducted; provided, provided however, that no Additional Amounts will shall be payable to the Trust with respect to any Note:
a payment made to a holder of Trust Notes — Series 2016-A (aan “Excluded Holder”) surrendered by the Holder or the in respect of a beneficial owner thereof of Trust Notes Series 2016-A (i) with which the Trust does not deal at arm’s length (for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf purposes of the relevant Holder or Income Tax Act (Canada)) at the beneficial owner on or prior time of the making of such payment, (ii) which is subject to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld Canadian Taxes by reason of the failure of such holder of Trust Notes — Series 2016-A to comply by the Holder orwith any certification, if differentidentification, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents documentation or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which reporting requirement if compliance is required or imposed by a statutelaw, treatyregulation, regulation or administrative practice of the Relevant Taxing Jurisdiction or an applicable treaty as a precondition to exemption from from, or a reduction in, the rate of deduction or withholding of, such Canadian Taxes, (iii) where all or part any portion of the amount paid to such taxholder of Trust Notes — Series 2016-A is deemed to be a dividend paid to such holder of Trust Notes — Series 2016-A pursuant to subsection 214(16) of the Income Tax Act (Canada), assessment or governmental charge;
(civ) held by or on behalf of a Holder or the beneficial owner who which is liable for subject to such Canadian Taxes in respect of such Note by reason of having some connection its carrying on business in or being connected with the Relevant Taxing Jurisdiction other Canada or any province or territory thereof otherwise than by the mere purchase, holding or disposition of any Note, Trust Notes — Series 2016-A or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholdingthereunder. The Company or any Guarantor will also Trust shall make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with as and when required under applicable law. The Company will furnish, within 60 days after .
2.6.3 If a holder of Trust Notes — Series 2016-A has received a refund or credit for any Canadian Taxes with respect to which the date the payment of any Taxes is due Issuer has paid Additional Amounts pursuant to applicable lawthis Section 2.6, and such holder has paid over such refund to the TrusteeTrust, copies of tax receipts the Trust shall pay over such refund to the Issuer (but only to the extent received from of such Additional Amounts), net of all out-of-pocket expenses of such holder, together with any interest paid by the relevant tax authorities authority in the usual course or as generally provided) evidencing that respect of such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay refund.
2.6.4 If Additional Amounts with respect are required to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)under this Section 2.6 as a result of a Tax Event, the Company will deliver Issuer may elect to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary redeem outstanding TCPL Sub Notes - Series 2016-A pursuant to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein3.3.
Appears in 2 contracts
Sources: Second Supplemental Indenture (TransCanada Trust), Second Supplemental Indenture (Transcanada Pipelines LTD)
Additional Amounts. (a) All payments made by or on behalf of that the Company or any Guarantor Issuer makes under or with respect to the Notes or the that any Subsidiary Guarantees will Guarantor makes under or with respect to its Guarantee shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and any other liability with respect similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company Issuer, the Subsidiary Guarantor or any Guarantor Surviving Entity is incorporated, organized, engaged in business (including any successor entitieswhere such Tax is imposed by reason of the Issuer, Subsidiary Guarantor, or Surviving Entity being engaged in business) is then organized or otherwise resident for tax purposes or from or through which any of the foregoing makes any payment on the Notes or the Guarantees (including the jurisdiction of any paying agent) or by or within any department or political subdivision thereof or therein or any jurisdiction by or through which payment is made having power to tax (each, a “Relevant Taxing Jurisdiction”), unless the Company Issuer or any Guarantor (or any Paying Agent) such Subsidiary Guarantor, as the case may be, is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authorityof law. If the Company Issuer or any Subsidiary Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guaranteesa Guarantee, the Company Issuer or any such Guarantor will Subsidiary Guarantor, as the case may be, shall pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so to ensure that the net 2 Insert if Global Note. amount received by such each Holder of the Notes (including the Additional Amounts) after such withholding or deduction will shall be not be less than the amount such the Holder would have received if such Taxes had not been required to be withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;.
(b) if Neither the Issuer nor any taxSubsidiary Guarantor shall, assessment however, pay Additional Amounts in respect or other governmental charge is on account of:
(i) any Taxes that are imposed or withheld levied by a Relevant Taxing Jurisdiction by reason of a present or former connection of a Holder (or a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if the Holder is an estate, a trust, a partnership or a corporation) or a beneficial owner with such Relevant Taxing Jurisdiction (other than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes, Guarantees or the Indenture);
(ii) any Taxes that are imposed or levied by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of Notes, following the Issuer’s written request addressed to provide information, documents or other evidence concerning the nationality, residence, identity or connection with Holder (and made at a time which would enable the Relevant Taxing Jurisdiction of such Holder or beneficial owner acting reasonably to comply with that request), to comply with any certification, identification, information or other reporting requirements which the Holder or such beneficial owner is legally required or and legally entitled to satisfy, whether imposed by a statute, treaty, regulation or administrative practice of the a Relevant Taxing Jurisdiction Jurisdiction, as a precondition to exemption from all from, or part reduction in the rate of such taxdeduction or withholding of, assessment or governmental charge;
(c) held Taxes imposed by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, (including, without limitation, such a certification that the Holder or beneficial owner being or having been a citizen or is not resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment thereinthe Relevant Taxing Jurisdiction);
(diii) on account of any estate, inheritance, gift, salesales, transfer, personal property transfer or other similar tax, assessment or other governmental chargeTaxes;
(eiv) except in any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the case of the winding up of the Company Notes or any Guarantor, any Note surrendered for payment in the Republic of FranceGuarantees;
(fv) as any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of such Notes for payment on a result of date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficial owner or Holder thereof would have been entitled to Additional Amounts had the Notes been presented for payment on any combination of date during such 30 day period;
(a), (b), (c), (dvi) or (e) any Tax imposed on or with respect to any payment made by or on behalf of the Company Issuer or any Subsidiary Guarantor in respect of any Note or Subsidiary Guarantee to any the Holder who if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary, member of such partnership or the beneficial owner of such payment would not have been entitled to any Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holderactual Holder of such Note;
(gvii) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union;
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed or levied on a payment to a Luxembourg resident an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the Luxembourg conclusions of the ECOFIN Council meeting of 26–27 November 2000 on the taxation of savings income or any law of 23 December 2005;
(h) when such withholding implementing or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established incomplying with, or (y) paid or accrued introduced in order to a person established or domiciled inconform to, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any GuarantorDirective; or
(kix) Any any combination of items the above.
(ac) through The Issuer and any Subsidiary Guarantor shall (ji) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant taxing authority in the Relevant Taxing Jurisdiction in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts .
(to the extent received from the relevant tax authorities in the usual course or as generally providedd) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company Issuer or any Subsidiary Guarantor becomes shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will shall be paid promptly thereafter and in any case before the relevant payment datethereafter), the Company will Issuer shall deliver to each Paying Agent the Trustee an Officers’ Officer’s Certificate stating the fact that such Additional Amounts will shall be payable, payable and the amount amounts so payable and will shall set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever The Issuer shall promptly publish a notice in this accordance with the provisions set forth in Section 13.02 of the Indenture there is mentionedstating that such Additional Amounts shall be payable and describing the obligation to pay such amounts.
(e) Upon request, in any context, (a) the Issuer or the Subsidiary Guarantors shall furnish to the Trustee or the Holder copies of tax receipts evidencing the payment of principal (any Taxes by the Issuer or the applicable Subsidiary Guarantor in such form as provided in the normal course by the taxing authority imposing such Taxes and premium, if any), (b) purchase prices in connection with a purchase as is reasonably available to the Issuer or the applicable Subsidiary Guarantor. If notwithstanding the efforts of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes Issuer or the Subsidiary GuaranteesGuarantors to obtain such receipts, the same are not obtainable, the Issuer or the applicable Subsidiary Guarantor shall provide the Trustee or such mention is deemed to include mention of the payment of Additional Amounts provided for in this section Holder other evidence satisfactory to the extentTrustee or the Holder of such payments by the Issuer or the applicable Subsidiary Guarantor.
(f) In addition, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will Issuer and the Subsidiary Guarantors shall pay any present or future stamp, court or documentary taxes or any other issue, registration, documentation, excise or property taxes or other similar taxes, charges or similar levies that arise and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the United Statesexecution, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue issue, delivery or registration of the Notes or on any other document or instrument referred to thereunder (other than in respect of the execution, issue, delivery or registration of Notes pursuant to Section 2.06, Section 2.07 or Section 2.10(a)(iv) of the Indenture) and any such taxes, charges or duties imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes and/or any payments other such document or instrument following the occurrence of any Event of Default with respect to the Notes, any and the Issuer and each Subsidiary Guarantee, Guarantor shall indemnify the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to Holders for any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses taxes paid by such Holders.
(ag) through (k) above). The obligations of the Company or any Guarantor described in under this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, paragraph 3 shall apply mutatis mutandis, mutandis to any jurisdiction in which any Surviving Entity or successor Person person to the Issuer or any Guarantor is incorporated, organized, engaged in business for tax purposes or otherwise resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department purposes, or any political subdivision or taxing authority thereof or therein. Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note, such reference includes the payment of Additional Amounts, if applicable.
Appears in 2 contracts
Sources: Indenture (Invitel Holdings a/S), Indenture (Invitel Holdings a/S)
Additional Amounts. All With respect to any payments made by or on the behalf of the Company Issuer or any a Guarantor under or with in respect to of the Notes or any Guarantee of the Subsidiary Guarantees Notes, as applicable, the Issuer or such Guarantor will be made free make all payments of principal of, premium, if any, and clear interest on (whether on scheduled payment dates or upon acceleration) and the Redemption Price, if any, payable in respect of and any Note without deduction or withholding or deduction for or on account of any present or future tax, duty, levy, impostimport, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) liabilities related thereto (“Taxes”) imposed imposed, levied, collected, withheld or levied assessed by or on behalf of any jurisdiction in which the Company Issuer or any such Guarantor (including any successor entities) is then organized incorporated or organized, engaged in business for tax purposes or otherwise resident for tax purposes purposes, or any political subdivision thereof or taxing authority therein or and any jurisdiction by or through which any payment is made on behalf of the Issuer or any Guarantor (including the jurisdiction of any Paying Agent) (each, a “Relevant Taxing Jurisdiction”), upon or as a result of such payments, unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the official interpretation or administration thereof by thereof. To the relevant taxing authority. If the Company extent that any such Taxes are so levied or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guaranteesimposed, the Company Issuer or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount received by such each Holder (including the Additional Amounts) ), after withholding for or on account of such withholding Taxes imposed upon or deduction as a result of such payment, will not be less than the amount such Holder that would have been received if had such Taxes had taxes not been withheld imposed or deducted, provided levied; except that no such Additional Amounts will shall be payable with respect to any a payment made to a Holder or beneficial owner of a Note:
(a1) surrendered to the extent that such Taxes would not have been so imposed, levied or assessed but for the existence of some connection between such Holder or beneficial owner of such Note and the Taxing Jurisdiction imposing such Taxes other than the mere holding or enforcement of such Note or receipt of payments thereunder; or
(2) to the extent that such Taxes would not have been so imposed, levied or assessed but for the failure of the Holders or beneficial owners of such Note to comply with a reasonable written request by the Holder Issuer (or its agent) to make a valid declaration of non-residence or any other claim or filing for exemption to which it is entitled (but only to the beneficial owner thereof extent it is legally entitled to do so); or
(3) that presents such Note for payment of principal (where presentation is required) more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, which payment of the full amount having been so received, Note is duly provided for and notice to that effect shall have been is given to the Holders Holders, whichever occurs later, except to the extent that the Holder or the beneficial owner of such Note would have been entitled to such Additional Amounts on surrendering presenting such Note for payment on any day date during the applicable such 30-day period;; or
(b4) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) where such withholding or deduction is imposed or levied on a payment to a Luxembourg resident or for an individual and is required to be made pursuant to Council Directive 2003/48/EC on the Luxembourg taxation of savings income or any other directive or law of 23 December 2005;
(h) when such withholding implementing or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established incomplying with, or introduced in order to conform to, such Directive, the ECOFIN Council meeting of 26-27 November 2000 or any other law implementing or complying with any arrangement entered into between the EU member states and certain third countries and territories in connection with such Directive (y) paid including, for the avoidance of doubt, any replacement directive or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantorlaw); or
(k5) Any combination of items that presents such Note for payment (awhere presentation is required) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by Holders of such Note to any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make Paying Agent if such withholding or deduction and remit of such Taxes could have been avoided by presenting such Note to another Paying Agent in a member state of the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts European Union;
(to the extent received from the relevant tax authorities 6) in the usual course or as generally provided) evidencing that such case of a payment has been made by or on behalf of a Guarantor organized under the Company laws of the United States, any state thereof or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or District of Columbia, with respect to any United States withholding taxes, so long as the Issuer or such Guarantor (pursuant to Section 1.06 of the Original Indenture) provides reasonable notice regarding potential United States withholding taxes and requests Holders and beneficial owners to provide applicable U.S. tax forms; or
(7) any combination of the above. As used herein and for purposes of the Indenture and the Notes, any reference to the principal of and interest on the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premiumRedemption Price, if any), shall be deemed to include a reference to any related Additional Amounts payable in respect of such amounts. The Issuer will also pay any stamp, registration, excise or property taxes and any other similar levies (bincluding any interest and penalties related thereto) purchase prices in connection with a purchase imposed by any Taxing Jurisdiction on the execution, delivery, registration or enforcement of any of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable document or instrument referred to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Fourth Supplemental Indenture (Willis Towers Watson PLC), Third Supplemental Indenture (Willis Towers Watson PLC)
Additional Amounts. All After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by or a non-U.S. Payor on behalf of the Company or any Guarantor under or with respect to the Notes or any guarantee of the Subsidiary Guarantees Notes will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (including without limitationcollectively, penalties, interest and any other liability with respect thereto) (“Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of of:
(1) any jurisdiction in which (other than the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United States or any political subdivision or governmental authority thereof or therein or any jurisdiction by having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(each2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), unless the Company or will at any Guarantor (or any Paying Agent) is time be required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment payments made under or with respect to the Notes or any guarantee of the Subsidiary GuaranteesNotes, including payments of principal, redemption price, interest or premium, if any, the Company or any such Guarantor non-U.S. Payor will pay to each Holder of the Notes that are outstanding on the date of the required payment, (together with such payments) such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by such the Holder (including the Additional Amounts) after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amount such Holder amounts that would have been received if in respect of such Taxes had not been withheld payments on the Notes or deductedthe guarantees of the Notes in the absence of such withholding or deduction; provided, provided however, that no such Additional Amounts will be payable with respect to any Notefor or on account of:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) any Taxes that would not have been so imposed or levied but for the date on which such payment first became due and (2) if the full amount payable has not been received by existence of any present or on behalf of former connection between the relevant Holder (or the beneficial owner on between a fiduciary, settlor, beneficiary, partner, member or prior to such due dateshareholder of, or possessor of power over, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder orrelevant Holder, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder is an estate, nominee, trust, partnership, limited liability company or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or beneficial owner any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by a statutethe applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all from, or part reduction in the rate of deduction or withholding of, any such tax, assessment or governmental chargeTaxes);
(c3) held any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or the beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is liable substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for Taxes in respect payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such Note by reason of having some connection with payment is given to the Relevant Taxing Jurisdiction other than Holders), except to the mere purchase, holding or disposition of any Note, or extent that the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in such Person would have been entitled to Additional Amounts on presenting the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of on any combination of (a), (b), (c), (d) date during such 30-day period or (ey) or with respect to any payment made by or on behalf of where, had the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of the Note been the Holder of the Note, such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any payment of Additional Amounts had such beneficiary by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payor will (i) make or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required cause to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is any required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The Company non-U.S. Payor will furnish, within 60 days after the date use reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes is due pursuant to applicable law, so deducted or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the TrusteeTrustee and the Holders. If, copies notwithstanding the efforts of tax receipts (such non-U.S. Payor to obtain such receipts, the extent received from same are not obtainable, such non-U.S. Payor will provide the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to and the Holders upon requestwith other reasonable evidence. At If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to each the date on which any payment under or with respect of such payment, the non-U.S. Payor will deliver to the Notes or Trustee an Officer’s Certificate stating the Subsidiary Guarantees is due fact that Additional Amounts will be payable and payable, if the Company or any Guarantor becomes obligated amount so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts with respect to such Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises after the 30th day less than 45 days prior to the date on which relevant payment under or with respect to the Notes or the Subsidiary Guarantees is due and payabledate, in which case it will be paid promptly thereafter the non-U.S. Payor shall deliver such Officer’s Certificate and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts promptly as practicable after the date that is 30 days prior to the Holders payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes on the payment date. Whenever in this Indenture there is mentionedmention of, in any context, :
(a1) the payment of principal principal;
(and premium, if any), (b2) redemption prices or purchase prices in connection with a redemption or purchase of the Notes, ;
(c3) interest or interest; or
(d4) any other amount payable on or with respect to any of the Notes or any guarantee of the Subsidiary Guarantees, Notes; such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for in as described under this section Section 2.13 to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, non-U.S. Payor will pay any present or future stamp, court or documentary taxes Taxes, or any other excise or excise, property taxes, charges or similar levies Taxes that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial issue resale, registration or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the this Indenture or any other documents related document or instrument in relation thereto (limited, in case other than a transfer of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveNotes). The foregoing obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer a non-U.S. Payor is organized or any Guarantor is incorporated, engaged in business for tax purposes or otherwise considered to be a resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision or taxing authority or agency thereof or therein.
Appears in 2 contracts
Sources: Indenture, Indenture (Broadcom Inc.)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor PCS under or with respect to the Notes or the Subsidiary Guarantees will Securities shall be made in U.S. Dollars and shall be free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:withholding
(a) surrendered by with which PCS does not deal at arm's length (within the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf meaning of the relevant Holder Income Tax Act (Canada)) at the time of making such payment, or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge which is imposed or withheld subject to such Taxes by reason of the failure to comply its being connected with Canada or any province or any territory thereof otherwise than by the Holder or, if different, the beneficial owner (ayant-droit) mere holding of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, Securities or the receipt of payments made by or on behalf of the Company or any Guarantor thereunder. PCS will also in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or accordance with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg applicable law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any make such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (b) remit the full amount deducted or withheld to the relevant authority in accordance with applicable lawauthority. The Company PCS will furnishfurnish to the Holder of such Securities, within 60 30 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been by PCS. PCS will indemnify and hold harmless each Holder (other than an Excluded Holder) and upon written request reimburse each such Holder for the amount of (a) any Taxes so levied or imposed and paid by such Holder as a result of payments made by the Company under or with respect to Securities, (b) any Guarantor. The Trustee will make liability (including penalties, interest and expenses) arising therefrom or with respect thereto, and (c) any Taxes imposed with respect to any reimbursement under (a) or (b) in this sentence, but excluding any such evidence available to the Holders upon requestTaxes on such Holder's net income. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes PCS will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payablepayment, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company PCS will deliver to each Paying Agent the Trustee an Officers’ Officer's Certificate stating the fact that such Additional Amounts will be payable, and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever Wherever in this Indenture there is mentioned, in any contextcontext except in the case of Section 502(a), the payment of the principal of (aor premium, if any) or interest on, or in respect of, any Security of any series or payment of any related coupon or the net proceeds received on the sale or exchange of any Security of any series, the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary Guaranteesa Security, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company obligations of PCS under this Section 1009 shall survive the termination of this Indenture and the payment of all amounts under or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinSecurities.
Appears in 2 contracts
Sources: Indenture (Potash Corporation of Saskatchewan Inc), Indenture (Potash Corporation of Saskatchewan Inc)
Additional Amounts. All payments made by or on behalf The Company will pay to Holders of the Company Securities such Additional Amounts as may be necessary in order that every net payment of principal, premium, if any, Change of Control Purchase Price, Redemption Price or interest in respect of any Guarantor under Securities, after deduction or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge imposed upon or as a result of such payment by (including without limitationi) Bermuda or Ireland or any political subdivision or governmental authority thereof or therein having power to tax, penalties(ii) any jurisdiction from or through which payment is made, interest and or any political subdivision or governmental authority thereof or therein having the power to tax, or (iii) any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or otherwise considered to be a resident for tax purposes purposes, or any political subdivision or governmental authority thereof or therein or any jurisdiction by or through which payment is made (eachhaving the power to tax, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount provided for in such Holder would have received if such Taxes had not been withheld or deductedSecurities to be then due and payable; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable not apply
(a) with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof Security presented for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by by, or on behalf of, a Holder who is liable for such taxes, duties, assessments or other governmental charges in respect of such Securities by reason of such Holder being a resident, domiciliary or national of, or engaging in business or maintaining a permanent establishment or being physically present in, a Relevant Taxing Jurisdiction, or any political subdivision or taxing authority thereof or therein, or other- wise having some connection with a Relevant Taxing Jurisdiction, or any political subdivision or taxing authority thereof or therein, other than the relevant Holder or the beneficial owner on or prior to mere holding of such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day periodSecurities;
(b) if to any tax, assessment or other governmental charge is which would not have been imposed but for the fact that such Holder (i) presented its Securities for payment more than 30 days after the Relevant Date, except to the extent that the Holder would have been entitled to Additional Amounts if it had presented such Securities for payment on any day within the 30-day period or withheld by reason of (ii) presented such Securities for payment in the Relevant Taxing Jurisdiction, unless such Securities could not have been presented for payment elsewhere;
(c) to any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply comply, following a request by the Holder orCompany to the Holder, if differentwith any certification, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder identification or beneficial owner to provide information, documents or other evidence reporting requirements concerning the nationality, residence, identity or connection with the a Relevant Taxing Jurisdiction Jurisdiction, or any political subdivision or taxing authority thereof or therein, of such the Holder or beneficial owner which of the Securities, if compliance is required by statute or imposed by regulation of a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction Jurisdiction, or any political subdivision or taxing authority thereof or therein, as a precondition to exemption from all or part of such tax, assessment or other governmental charge;
(cd) held by or on behalf with respect to any Holder that has elected not to permit redemption of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment thereinits Securities pursuant to Section 11.8;
(de) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(ef) except in the case any tax, assessment or other governmental charge that is payable other than by withholding or deduction at source; or
(g) any combination of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
clauses (a) through (f) as a result of any combination of (a)above. In addition, (b), (c), (d) or (e) or the Company will not pay Additional Amounts with respect to any payment made by of principal of, or on behalf of the Company premium, if any, interest or any Guarantor in respect of other amounts on, any Note or Subsidiary Guarantee Security to any Holder who is a fiduciary or partnership fiduciary, partnership, limited liability company or other than the sole beneficial owner of such payment a Security, to the extent that the payment would be required by the laws of the Relevant Taxing Jurisdiction, or any political subdivision or relevant taxing authority thereof or therein, to be included in the income for tax purposes of a beneficiary beneficiary, partner, member or settlor with respect to such fiduciary or a member of such partnership or limited liability company or a beneficial owner who would not have been entitled to any such Additional Amounts had such beneficiary or settlor or beneficial owner it been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Limited Waiver (Elan Corp PLC), Limited Waiver (Elan Corp PLC)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment assessment, or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (“Taxes”collectively, "TAXES") imposed or levied by or on behalf of Luxembourg or any other jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or is a resident for tax purposes or by any government authority or political subdivision thereof or territory or possession or agency therein or any jurisdiction by or through which payment is made thereof having the power to tax (each, a “Relevant Taxing Jurisdiction”"TAXING AUTHORITY"), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authoritythereof. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed by a Taxing Authority within Luxembourg or levied by within any other jurisdiction in which the Company is organized or on behalf of is a Relevant Taxing Jurisdiction resident for tax purposes, from any payment made under or with respect to the Notes or the Subsidiary GuaranteesNotes, the Company or any such Guarantor will shall pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”"ADDITIONAL AMOUNTS") as may be necessary so that the net amount received by such each Holder (including the Additional Amounts) of Notes after such withholding or deduction will not be less than the amount such the Holder and beneficial owner would have received if such Taxes had not been withheld or deducted, provided ; PROVIDED that no Additional Amounts will shall be payable with respect to any Note:
a payment made to a Holder of Notes or to a third party on behalf of a Holder, with respect to (a) surrendered any Taxes that would not have been so imposed but for the existence of any present or former connection between such Holder and the jurisdiction imposing such tax (other than the mere receipt of such payment or the ownership or holding outside of Luxembourg of such Note); (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; (c) any Taxes payable otherwise than by deduction or withholding from payments of principal of, premium, if any, or interest on such Note; or (d) Taxes that would not have been imposed but for the failure of the Holder or the beneficial owner thereof of a Note to comply, upon written request therefor furnished by the Company to the Trustee, with any certification, identification, information, or other documentation requirement under law, regulation, administrative practice or an applicable treaty that is a precondition to exemption from, or reduction in the rate of the imposition, deduction or withholding of Taxes; nor shall Additional Amounts be paid: (i) if the payment under or with respect to the Notes could have been made by another paying agent without such deduction or withholding, (ii) if the payment under or with respect to the Notes could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment of principal more than within 30 days after the later of (1A) the date on which such payment first or such Note became due and payable or (2B) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on whichwhich payment thereof is duly provided for, the full amount having been so received, notice to that effect shall have been given to the Holders whichever is later (except to the extent that the Holder or the beneficial owner holder would have been entitled to such Additional Amounts had the Note been presented on surrendering the last day of such Note for payment on any day during the applicable 30-30 day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (diii) or (e) or with respect to any payment made by under or on behalf of with respect to the Company or any Guarantor in respect of any Note or Subsidiary Guarantee Notes to any Holder holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to any the Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holder;
(g) actual holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
Note. The Company shall also (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company shall use its reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Company will furnishsupply to the Trustee for forwarding to all Holders, without cost to such Holders, within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make if, notwithstanding the Company's efforts to obtain such receipts, the same are not obtainable, other evidence available to of such payments by the Holders upon requestCompany. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)payment, the Company will shall deliver to each Paying Agent the Trustee an Officers’ ' Certificate stating the fact that such Additional Amounts will be payable, and the amount amounts so payable and will shall set forth such other information as is necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders holders of the Notes on the payment date. The foregoing provisions shall survive any termination or the discharge of this Indenture and shall apply MUTATIS MUTANDIS to any jurisdiction in which any successor Person to the Company is organized or is engaged in business for tax purposes or any political subdivision or taxing authority or agency thereof or therein. In addition, the Company shall pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest and penalties, payable in Luxembourg or any political subdivision thereof or therein in respect of the creation, issue and offering of the Notes. Whenever in this Indenture or the Notes there is mentioned, mentioned in any context, (a) the payment of amounts based upon principal (and of, premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) or interest or (d) of any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesNotes, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (Carrier1 International S A), Indenture (Carrier1 International S A)
Additional Amounts. All payments to be made by or on behalf of the Company under this Agreement, or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will as a result of entering into this Agreement, shall be made free and clear of and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levyassessments, impostimposts, assessment duties or other governmental charge charges whatsoever unless the Company is required by law to withhold or deduct such taxes, levies, assessments, imposts, duties or charges. If the compensation (including the Initial Purchasers’ commissions) is or any other amounts to be received by the Initial Purchasers under this Agreement (including, without limitation, penaltiesindemnification and contribution payments and reimbursable expenses), interest or as a result of entering into this Agreement, are subject to any present or future taxes, levies, assessments, deductions, withholdings, imposts, duties or charges of any nature, including interest, penalties and any other liability with respect additions thereto) (“Taxes”) , imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by from or through which payment is made (eachother than, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interestany Initial Purchaser, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment income or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) tax due solely as a result of any combination of (a)such Initial Purchaser’s connection with or establishment in such jurisdiction, (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of solely from such payment to the extent that a beneficiary Initial Purchaser having executed, delivered or settlor or beneficial owner would not have been entitled to performed its obligations, received any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inamounts, or enforced its rights under this Agreement) (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “CodeTaxes”), then the Company will pay to the Initial Purchasers an additional amount so that the Initial Purchasers retain, after taking into consideration all such Taxes, an amount equal to the amounts owed to them as compensation or otherwise imposed pursuant under this Agreement as if such amounts had not been subject to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”)Taxes. Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of If any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course are collected by deduction or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)withholding, the Company will deliver provide to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and Initial Purchasers copies of documentation evidencing the transmittal to the proper authorities of the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the Taxes deducted or withheld within 15 days after payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereofTaxes. The Company or a Guarantorfurther agrees to indemnify and hold harmless the Initial Purchasers against any documentary, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxessales, charges transaction or similar levies that arise in issue tax, including any interest and penalties, on the United Statescreation, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration and sale of the Notes or Securities, and on the execution, delivery, performance and enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinTransaction Documents.
Appears in 2 contracts
Sources: Purchase Agreement (B2gold Corp), Purchase Agreement
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor Issuers under or with respect to the Notes or Securities and by the Subsidiary Guarantees Company under the Guaranty will be made free and clear of and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levyduties, impostfees, assessment assessments or other governmental charge charges of whatever nature (including without limitation"Taxes") imposed, penaltieslevied, interest and any other liability with respect thereto) (“Taxes”) imposed collected or levied assessed by or on behalf of any jurisdiction in which taxing authority within the Company Cayman Islands or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”)Thailand, unless the Issuers are or the Company is, as the case may be, required to withhold or any Guarantor (deduct Taxes by law or any Paying Agent) by the interpretation or administration thereof. If the Issuers are or the Company is required to withhold or deduct Taxes under or if the laws of the Relevant Taxing Jurisdiction Issuers are or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so otherwise required to withhold or deduct pay any amount for or on account of Taxes imposed by a taxing authority within the Cayman Islands or levied by Thailand from or on behalf in respect of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes Securities or the Subsidiary GuaranteesGuaranty, the Company Issuers or any such Guarantor the Company, as the case may be, will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“"Additional Amounts”") as may be necessary so that the net amount received by such each Holder and beneficial owner of Securities (including the Additional Amounts) after such withholding or deduction or other payment of Taxes will not be less than the amount such Holder or beneficial owner would have received if such Taxes had not been withheld or deducteddeducted or paid; provided, provided however, that no Additional Amounts will be payable with respect to a payment made to a Holder or beneficial owner of Securities with respect to any Note:
Tax: (ai) surrendered by which would not have been imposed, payable or due but for the existence of any present or former connection between such Holder (or the beneficial owner thereof of, or Person ultimately entitled to obtain an interest in, such Securities) and the Cayman Islands or Thailand, as the case may be, other than the mere holding of such Securities; (ii) which would not have been imposed, payable or due if such Securities had been held in definitive registered form ("Definitive Registered Securities") and the presentation of Definitive Registered Securities for payment of principal more than had occurred within 30 days after the later of (1) the date on which such payment first became was due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior was provided for, whichever is later, except for Additional Amounts with respect to such due date, the date on which, the full amount having been so received, notice to Taxes that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to imposed had the holder presented such Additional Amounts on surrendering such Note Securities for payment on any day date during the applicable 30-such 30 day period;
; (biii) if any taxthat is an estate, assessment inheritance, gift, sales, transfer, personal property or other governmental charge similar Tax; (iv) that is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide informationcomply, documents at the reasonable request of the Issuers or the Company, as the case may be, with certification, information or other evidence reporting requirements concerning the nationality, residence, residence or identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which if such compliance is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
Tax; (cv) held by or on behalf of a Holder or if the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Noteof, or Person ultimately entitled to obtain an interest in, such Securities had been the receipt of payments made by or on behalf Holder of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account Securities and would not be entitled to the payment of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) Additional Amounts; or (evi) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding from payments on or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. any Security.
(b) The Company Issuers or any Guarantor the Company, as the case may be, will also (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company Issuers or the Company, as the case may be, will furnishmake reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each taxing authority imposing such Taxes. The Issuers or the Company, as the case may be, will furnish to the Holders, within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, to the Trustee, either certified copies of tax receipts evidencing such payment by the Issuers or the Company, as the case may be, or, if such receipts are not obtainable, other evidence of such payments by the Issuers or the Company.
(c) In addition, the Issuers or the Company, as the case may be, will upon written request of each Holder (subject to the extent received from exclusions set forth in (i), (ii), (iii), (iv), (v) and (vi) of paragraph (a) above), and provided that reasonable supporting documentation is provided, reimburse each such Holder for the relevant tax authorities in the usual course amount of any Taxes levied or as generally provided) evidencing that such payment has been made imposed by the Company Cayman Islands or any Guarantor. The Trustee will make Thailand and paid by such evidence available Holder as a result of payments made under or with respect to the Holders upon requestSecurities or under the Guaranty. Any payment pursuant to this section shall be an Additional Amount.
(d) At least 30 days prior to each date on which any payment under or with respect to the Notes Securities or under the Subsidiary Guarantees Guaranty is due and payable, if the Issuers or the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after payment, the 30th day prior to the date on which payment under Issuers or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent the Trustee an Officers’ ' Certificate stating the fact that such Additional Amounts will be payable, payable and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in the Indenture or in this Indenture Security there is mentioned, in any context, (a) the payment of amounts based upon the principal (and of, premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) of any other amount payable on under or with respect to any of the Notes Security or the Subsidiary Guarantees, Guaranty such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor.
(e) In addition, as the case may be, Issuers will pay any present or future stamp, court issue, registration, documentary, value added or documentary other similar taxes or any and other excise or property taxes, charges or similar levies that arise duties (including interest and penalties) payable in the United States, the Republic of France Cayman Islands or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto Thailand (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereintaxing authority of either jurisdiction) and in the United States in respect of the creation, issue, offering, execution or enforcement of the Securities, the Guaranty or any documentation with respect thereto.
Appears in 2 contracts
Sources: Indenture (NSM Steel Co LTD), Indenture (NSM Steel Co LTD)
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor under the Subsidiary Guarantors on or with respect to the Notes or the Subsidiary Guarantees will pursuant to this Indenture shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and Taxes imposed by any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Canadian Taxing Jurisdiction”)Authority, unless the Company required by law or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authorityCanadian Taxing Authority. If the Company or any Subsidiary Guarantor (or any Paying Agentother payor) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant any Canadian Taxing Jurisdiction Authority from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, it shall:
(1) make such withholding or deduction;
(2) remit the full amount deducted or withheld to the relevant government authority in accordance with applicable law;
(3) pay the additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder each holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder the holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b4) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment furnish to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishHolders, within 60 30 days after the date the payment of any Taxes is due pursuant to applicable lawdue, to the Trustee, certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or such Subsidiary Guarantor;
(5) indemnify and hold harmless each Holder (other than an Excluded Holder, as defined in paragraph (b) below) for the amount of (a) any Guarantor. The Trustee will make Taxes paid by each such evidence available Holder as a result of payments made on or with respect to the Holders upon request. At Notes, (b) any liability (including penalties, interest and expenses) arising from or with respect to such payments and (c) any Taxes imposed with respect to any reimbursement under the foregoing clauses (a) or (b), but excluding any such Taxes that are in the nature of Taxes on net income, taxes on capital, franchise taxes, net worth taxes and similar taxes; and
(6) at least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Subsidiary Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior payment, deliver to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date.
(b) Notwithstanding the provisions of paragraph (a) above, no Additional Amounts shall be payable to a Person (an “Excluded Holder”) in respect of a payment made to such Person under or with respect to a Note:
(1) if such Person is subject to such Taxes by reason of its being connected with Canada or any province or territory thereof otherwise than by the mere acquisition, holding or disposition of Notes or the receipt of payments thereunder;
(2) if such Person waives its right to receive Additional Amounts;
(3) if the Company or such Subsidiary Guarantor does not deal at arm’s length, within the meaning of the Income Tax Act (Canada), with such Person at the time of such payment;
(4) if the Company or such Subsidiary Guarantor does not deal at arm’s length, within the meaning of the Income Tax Act (Canada), with another Person to whom the Company or such Subsidiary Guarantor has an obligation to pay an amount in respect of the Notes; or
(5) to the extent that the Taxes giving rise to such Additional Amounts would not have been imposed but for such person being, or not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with, a “specified shareholder” of the Company for purposes of the thin capitalization rules in the Income Tax Act (Canada). Whenever in this Indenture there is mentionedAny reference, in any contextcontext in this Indenture, (a) to the payment of principal (and principal, premium, if any), (b) purchase prices in connection with a purchase redemption price, Change of the NotesControl Amount, (c) interest offer price and interest, or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesNote, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above)payable. The obligations of the Company or any Guarantor described in under this Section 4.19 4.20 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer Company or any Guarantor Subsidiary Guarantor, as applicable, is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department organized or any political subdivision or taxing authority or agency thereof or therein. It is understood for purposes of this Section 4.20 that the determination of the amount of Additional Amounts shall be made at the beneficial owner level.
Appears in 2 contracts
Sources: Indenture (Quebecor Media Inc), Indenture (Videotron Ltee)
Additional Amounts. 2.7.1 All payments made by or on behalf account of any obligation of the Company or any Guarantor Issuer under or with respect to the TCPL Sub Notes or the Subsidiary Guarantees will - Series 2019-A shall be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company Government of Canada or any Guarantor (including any successor entities) is then organized province or resident for tax purposes or any political subdivision territory thereof or by any authority or agency therein or any jurisdiction by or through which payment is made thereof having power to tax (eachhereinafter, a “Relevant Taxing JurisdictionCanadian Taxes”), unless or, in the Company or any Guarantor (or any Paying Agent) event that a Successor Entity that is required to withhold or deduct Taxes organized under the laws of a jurisdiction other than the Relevant Taxing Jurisdiction laws of Canada or any province of territory thereof is substituted for the Issuer pursuant to Article 8 of the Original Indenture, by or on behalf of the government of such successor jurisdiction or any subdivision thereof or by any authority or agency therein or thereof having power to tax.
2.7.2 For so long as the interpretation or administration thereof by Trust is the relevant taxing authority. If holder of TCPL Sub Notes — Series 2019-A, if the Company or any Guarantor (or any Paying Agent) Trust is so required to withhold or deduct any amount for or on account of Canadian Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Trust Notes or the Subsidiary Guarantees- Series 2019-A, the Company or any such Guarantor will Issuer shall pay to each Holder of the Notes that are outstanding on the date of the required payment, as additional interest such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the Trust may provide a net amount received by such Holder to each holder of Trust Notes — Series 2019-A (including the Additional Amounts) after such withholding or deduction will shall not be less than the amount such Holder holder of Trust Notes — Series 2019-A would have received if such Canadian Taxes had not been withheld or deducted; provided, provided however, that no Additional Amounts will shall be payable to the Trust with respect to any Note:
a payment made to a holder of Trust Notes — Series 2019-A (aan “Excluded Holder”) surrendered by the Holder or the in respect of a beneficial owner thereof of Trust Notes Series 2019-A (i) with which the Trust does not deal at arm’s length (for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf purposes of the relevant Holder Income Tax Act (Canada)) at the time the amount is paid or payable, (ii) where the beneficial owner on payment is in respect of a debt or prior other obligation to pay an amount to a person with whom the payor is not dealing at arm’s length for the purposes of the Income Tax Act (Canada), (iii) which is subject to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld Canadian Taxes by reason of the failure of such holder of Trust Notes — Series 2019-A to comply by the Holder orwith any certification, if differentidentification, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents documentation or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which reporting requirement if compliance is required or imposed by a statutelaw, treatyregulation, regulation or administrative practice of the Relevant Taxing Jurisdiction or an applicable treaty as a precondition to exemption from from, or a reduction in, the rate of deduction or withholding of, such Canadian Taxes, (iv) where all or part any portion of the amount paid to such taxholder of Trust Notes — Series 2019-A is deemed to be a dividend paid to such holder of Trust Notes — Series 2019-A pursuant to subsection 214(16) of the Income Tax Act (Canada), assessment or governmental charge;
(cv) held by or on behalf of a Holder or the beneficial owner who which is liable for subject to such Canadian Taxes in respect of such Note by reason of having some connection its carrying on business in or being connected with the Relevant Taxing Jurisdiction other Canada or any province or territory thereof otherwise than by the mere purchase, holding or disposition of any Note, Trust Notes — Series 2019-A or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholdingthereunder. The Company or any Guarantor will also Trust shall make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with as and when required under applicable law. The Company will furnish, within 60 days after .
2.7.3 If a holder of Trust Notes — Series 2019-A has received a refund or credit for any Canadian Taxes with respect to which the date the payment of any Taxes is due Issuer has paid Additional Amounts pursuant to applicable lawthis Section 2.7, and such holder has paid over such refund to the TrusteeTrust, copies of tax receipts the Trust shall pay over such refund to the Issuer (but only to the extent received from of such Additional Amounts), net of all out-of-pocket expenses of such holder, together with any interest paid by the relevant tax authorities authority in the usual course or as generally provided) evidencing that respect of such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay refund.
2.7.4 If Additional Amounts with respect are required to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)under this Section 2.7 as a result of a Tax Event, the Company will deliver Issuer may elect to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary redeem outstanding TCPL Sub Notes - Series 2019-A pursuant to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein3.3.
Appears in 2 contracts
Sources: Fifth Supplemental Indenture (TransCanada Trust), Fifth Supplemental Indenture (Transcanada Pipelines LTD)
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor under the Subsidiary Guarantors on or with respect to the Notes or the Subsidiary Guarantees will pursuant to this Indenture shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and Taxes imposed by any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Canadian Taxing Jurisdiction”)Authority, unless the Company required by law or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authorityCanadian Taxing Authority. If the Company or any Subsidiary Guarantor (or any Paying Agentother payor) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant any Canadian Taxing Jurisdiction Authority from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, it shall:
(1) make such withholding or deduction;
(2) remit the full amount deducted or withheld to the relevant government authority in accordance with applicable law;
(3) pay the additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such each Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such the Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b4) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment furnish to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishHolders, within 60 30 days after the date the payment of any Taxes is due pursuant to applicable lawdue, to the Trustee, certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or such Subsidiary Guarantor;
(5) indemnify and hold harmless each Holder (other than an Excluded Holder, as defined in paragraph (b) below) for the amount of (a) any Guarantor. The Trustee will make Taxes paid by each such evidence available Holder as a result of payments made on or with respect to the Holders upon request. At Notes, (b) any liability (including penalties, interest and expenses) arising from or with respect to such payments and (c) any Taxes imposed with respect to any reimbursement under the foregoing clauses (a) or (b), but excluding any such Taxes that are in the nature of Taxes on net income, taxes on capital, franchise taxes, net worth taxes and similar taxes; and
(6) at least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Subsidiary Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior payment, deliver to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date.
(b) Notwithstanding the provisions of paragraph (a) above, no Additional Amounts shall be payable to a Person (an “Excluded Holder”) in respect of a payment made to such Person under or with respect to a Note:
(1) if such Person is subject to such Taxes by reason of its being connected with Canada or any province or territory thereof otherwise than by the mere acquisition, holding or disposition of Notes or the receipt of payments thereunder;
(2) if such Person waives its right to receive Additional Amounts;
(3) if the Company or such Subsidiary Guarantor does not deal at arm’s length, within the meaning of the Income Tax Act (Canada) (the “Tax Act”), with such Person at the time of such payment;
(4) if the Company or such Subsidiary Guarantor does not deal at arm’s length, within the meaning of the Tax Act, with another Person to whom the Company or such Subsidiary Guarantor has an obligation to pay an amount in respect of the Notes; or
(5) to the extent that the Taxes giving rise to such Additional Amounts would not have been imposed but for such person being, or not dealing at arm’s length (within the meaning of Tax Act) with, a “specified shareholder” of the Company for purposes of the thin capitalization rules in the Tax Act. Whenever in this Indenture there is mentionedAny reference, in any contextcontext in this Indenture, (a) to the payment of principal (and principal, premium, if any), (b) purchase prices in connection with a purchase redemption price, Change of the NotesControl Payment, (c) interest offer price and interest, or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesNote, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above)payable. The obligations of the Company or any Guarantor described in under this Section 4.19 4.20 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer Company or any Guarantor Subsidiary Guarantor, as applicable, is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department organized or any political subdivision or taxing authority or agency thereof or therein. It is understood for purposes of this Section 4.20 that the determination of the amount of Additional Amounts shall be made at the beneficial owner level.
Appears in 2 contracts
Sources: Indenture (Videotron Ltee), Indenture (Quebecor Media Inc)
Additional Amounts. (a) All payments made by or on behalf of the Company Issuer, the Co-Issuer or any Guarantor (a “Payor”) under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of of, and without deduction or withholding or deduction for or on account of of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other governmental charge charges of whatsoever nature imposed, levied, collected, withheld or assessed (including without limitationcollectively, penalties“Taxes” by the United States, interest and the Netherlands, any other liability with respect thereto) (“Taxes”) imposed jurisdiction in which the Issuer, the Co-Issuer or levied any Guarantor is then incorporated, organized, engaged in business for tax purposes, or resident for tax purposes, any jurisdiction from or through which any such payment is made by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes Payor or any political subdivision or taxing authority thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”)), unless the Company such deduction or any Guarantor (or any Paying Agent) withholding is required to withhold by law.
(b) In the event such deduction or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account withholding of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made is required with respect to payments under or with respect to the Notes or by law of any Relevant Taxing Jurisdiction (other than the Subsidiary GuaranteesUnited States), subject to the limitations described below, the Company or any such Guarantor Payors will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the every net amount payment received by the beneficial owner of such Holder Note of principal of or interest or any other amount payable on the Notes (including the Additional Amounts) upon redemption), after deduction or withholding for or on account of such withholding or deduction Taxes, will not be less than the amount such Holder that would have been received if in respect of such Taxes had not been withheld payments in the absence of such deduction or deducted, provided that no withholding for or on account of such Taxes. Payment of Additional Amounts will shall be payable made in accordance with respect the procedures of any applicable securities depositary. However, the Payors’ obligation to any Notepay Additional Amounts shall not apply to:
(ai) surrendered any Taxes that would not have been so imposed but for:
(A) the existence of any present or former connection between such Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member, partner or shareholder or other equity owner of, or a person having a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, a nominee, a trust, a limited liability company, a partnership, a corporation or other entity) and the Relevant Taxing Jurisdiction, including such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, partner or shareholder or other equity owner or person having such a power) being or having been a citizen or resident or treated as a resident of the Relevant Taxing Jurisdiction or being or having been engaged in a trade or business in the Relevant Taxing Jurisdiction or having or having had a permanent establishment in the Relevant Taxing Jurisdiction;
(B) the failure of such Holder or beneficial owner to comply with a request to provide any certification, information or other reporting requirement, if compliance is required under tax laws and regulations of Relevant Taxing Jurisdiction to establish entitlement to a partial or complete exemption from such Taxes (including, but not limited to, the requirement to provide an applicable Internal Revenue Service Form W-8 (with any required attachment), or any subsequent version thereof or successor thereto);
(ii) any Taxes imposed by reason of the Holder or beneficial owner:
(A) owning or having owned, directly or indirectly, actually or constructively, 10% or more of the total combined voting power of all classes of the Issuer’s stock, as described in section 871(h)(3) of the Internal Revenue Code,
(B) being a bank receiving interest as described in section 881(c)(3)(A) of the Internal Revenue Code, or
(C) being a controlled foreign corporation that is related to the Issuer or any Guarantor by stock ownership for U.S. federal income tax purposes;
(iii) any Taxes that would not have been so imposed but for the presentation by the Holder or the beneficial owner thereof of such Note for payment of principal on a date more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, which payment of the full amount having been so received, Note is duly provided for and notice to that effect shall have been is given to the Holders such Holders, whichever occurs later, except to the extent that the such Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering presenting such Note for payment on any day date during the applicable such 30-day period;
(biv) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, salesales, transfer, personal property property, capital gains, wealth or other similar tax, assessment or other governmental chargeTaxes;
(ev) except in the case of the winding up of the Company any Taxes payable otherwise than by deduction or any Guarantor, any withholding from a payment on such Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made note Guarantee;
(vi) any Taxes payable by or on behalf of a Holder that is not the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment the Note, or that is a fiduciary, partnership, limited liability company or other similar entity, but, in each case, only to the extent that a beneficial owner, a beneficiary or settlor with respect to such fiduciary or beneficial owner member or partner of such partnership, limited liability company or similar entity would not have been entitled to any Additional Amounts the payment of an additional amount had such beneficiary beneficial owner, beneficiary, settlor, member or settlor partner received directly its beneficial or beneficial owner been distributive share of the Holderpayment;
(gvii) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is any Taxes required to be withheld by any paying agent from any payment on any Note, if such payment can be made pursuant to the Luxembourg law of 23 December 2005without such withholding by at least one other paying agent;
(hviii) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of any Taxes which are payable otherwise than by withholding or deduction from a payment made imposed under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code (or any amended or successor provision that is substantively comparable), any current or future regulations thereunder or official interpretations interpretation thereof, any agreement entered into pursuant to Section 1471(b) or an intergovernmental agreement between of the United States and another jurisdiction facilitating the implementation thereof (Internal Revenue Code or any fiscal or regulatory legislation, rules rule or practices implementing such an practice adopted pursuant to any intergovernmental agreement, treaty or convention entered into in connection with the implementation of the foregoing;
(ix) any Taxes imposed under or in connection with the 2021 Dutch Withholding Tax Act (any such withholding or deductionWet bronbelasting 2021) with respect to a Holder, or, where applicable, a “FATCA Withholding”beneficiary of the Notes that is an entity that is related (gelieerd) to the Issuer within the meaning of the 2021 Dutch Withholding Tax Act; or
(x) any combination of items (i). Neither , (ii), (iii), (iv), (v), (vi), (vii), (viii) and (ix).
(c) For purposes of this Section 2.14, the Company nor acquisition, ownership, enforcement, or holding of or the receipt of any payment with respect to a Note will not constitute a connection (x) between the Holder or beneficial owner and the United States or (y) between a fiduciary, settlor, beneficiary, member, partner or shareholder or other personequity owner of, including any Guarantoror a person having a power over, such Holder or beneficial owner if such Holder or beneficial owner is an estate, a trust, a limited liability company, a partnership, a corporation or other entity and the United States.
(d) Any reference in this Indenture or in the Notes to principal or interest or other payment on the Notes shall be deemed to refer also to Additional Amounts that may be payable under the provisions of this Section 2.14.
(e) Except as specifically provided under this Section 2.14, the Issuer will not be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes tax, duty, assessment or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay other governmental charge imposed by any present or future stamp, court or documentary taxes government or any other excise political subdivision or property taxes, charges taxing authority of or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The foregoing obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, indenture and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer a Payor is organized or any Guarantor is incorporated, engaged in business for tax purposes or otherwise considered to be a resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision or taxing authority or agency thereof or therein.
Appears in 2 contracts
Sources: Indenture (Organon & Co.), Indenture (Organon & Co.)
Additional Amounts. All With respect to any payments made by or on the behalf of the Company Issuer or any a Guarantor under or with in respect to of the Notes or any Guarantee of the Subsidiary Guarantees Notes, as applicable, the Issuer or such Guarantor will be made free make all payments of principal of, premium, if any, and clear interest on (whether on scheduled payment dates or upon acceleration) and the Redemption Price, if any, payable in respect of and any Note without deduction or withholding or deduction for or on account of any present or future tax, duty, levy, impostimport, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) liabilities related thereto (“Taxes”) imposed imposed, levied, collected, withheld or levied assessed by or on behalf of any jurisdiction in which the Company Issuer or any such Guarantor (including any successor entities) is then organized incorporated or organized, engaged in business for tax purposes or otherwise resident for tax purposes purposes, or any political subdivision thereof or taxing authority therein or and any jurisdiction by or through which any payment is made on behalf of the Issuer or any Guarantor (including the jurisdiction of any Paying Agent) (each, a “Relevant Taxing Jurisdiction”), upon or as a result of such payments, unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the official interpretation or administration thereof by thereof. To the relevant taxing authority. If the Company extent that any such Taxes are so levied or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guaranteesimposed, the Company Issuer or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount received by such each Holder (including the Additional Amounts) ), after withholding for or on account of such withholding Taxes imposed upon or deduction as a result of such payment, will not be less than the amount such Holder that would have been received if had such Taxes had taxes not been withheld imposed or deducted, provided levied; except that no such Additional Amounts will shall be payable with respect to any a payment made to a Holder or beneficial owner of a Note:
(a1) surrendered to the extent that such Taxes would not have been so imposed, levied or assessed but for the existence of some connection between such Holder or beneficial owner of such Note and the Taxing Jurisdiction imposing such Taxes other than the mere holding or enforcement of such Note or receipt of payments thereunder; or
(2) to the extent that such Taxes would not have been so imposed, levied or assessed but for the failure of the Holders or beneficial owners of such Note to comply with a reasonable written request by the Holder Issuer (or its agent) to make a valid declaration of non-residence or any other claim or filing for exemption to which it is entitled (but only to the beneficial owner thereof extent it is legally entitled to do so); or
(3) that presents such Note for payment of principal (where presentation is required) more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, which payment of the full amount having been so received, Note is duly provided for and notice to that effect shall have been is given to the Holders Holders, whichever occurs later, except to the extent that the Holder or the beneficial owner of such Note would have been entitled to such Additional Amounts on surrendering presenting such Note for payment on any day date during the applicable such 30-day period;; or
(b4) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) where such withholding or deduction is imposed or levied on a payment to a Luxembourg resident or for an individual and is required to be made pursuant to Council Directive 2003/48/EC on the Luxembourg taxation of savings income or any law of 23 December 2005;
(h) when such withholding implementing or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established incomplying with, or (y) paid or accrued introduced in order to a person established or domiciled inconform to, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any GuarantorDirective; or
(k5) Any combination of items that presents such Note for payment (awhere presentation is required) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by Holders of such Note to any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make Paying Agent if such withholding or deduction and remit of such Taxes could have been avoided by presenting such Note to another Paying Agent in a member state of the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts European Union;
(to the extent received from the relevant tax authorities 6) in the usual course or as generally provided) evidencing that such case of a payment has been made by or on behalf of a Guarantor organized under the Company laws of the United States, any state thereof or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or District of Columbia, with respect to any United States withholding taxes, so long as the Issuer or such Guarantors (pursuant to Section 1.06 of the Original Indenture) provides reasonable notice regarding potential United States withholding taxes and requests Holders and beneficial owners to provide applicable U.S. tax forms; or
(7) any combination of the above. As used herein and for purposes of the Indenture and the Notes, any reference to the principal of and interest on the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premiumRedemption Price, if any), shall be deemed to include a reference to any related Additional Amounts payable in respect of such amounts. The Issuer will also pay any stamp, registration, excise or property taxes and any other similar levies (bincluding any interest and penalties related thereto) purchase prices in connection with a purchase imposed by any Taxing Jurisdiction on the execution, delivery, registration or enforcement of any of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable document or instrument referred to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 2 contracts
Sources: First Supplemental Indenture, First Supplemental Indenture (Willis Group Holdings PLC)
Additional Amounts. (a) All payments made by or on behalf of the Company Issuer, the Co-Issuer or any Guarantor (a “Payor”) under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of of, and without deduction or withholding or deduction for or on account of of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other governmental charge charges of whatsoever nature imposed, levied, collected, withheld or assessed (including without limitationcollectively, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed by the United States, the Netherlands, any other jurisdiction in which the Issuer, the Co-Issuer or levied any Guarantor is then incorporated, organized, engaged in business for tax purposes, or resident for tax purposes, any jurisdiction from or through which any such payment is made by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes Payor or any political subdivision or taxing authority thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company such deduction or any Guarantor (or any Paying Agent) withholding is required to withhold by law.
(b) In the event such deduction or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account withholding of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made is required with respect to payments under or with respect to the Notes or by law of any Relevant Taxing Jurisdiction (other than the Subsidiary GuaranteesUnited States), subject to the limitations described below, the Company or any such Guarantor Payors will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the every net amount payment received by the beneficial owner of such Holder Note of principal of or interest or any other amount payable on the Notes (including the Additional Amounts) upon redemption), after deduction or withholding for or on account of such withholding or deduction Taxes, will not be less than the amount such Holder that would have been received if in respect of such Taxes had not been withheld payments in the absence of such deduction or deducted, provided that no withholding for or on account of such Taxes. Payment of Additional Amounts will shall be payable made in accordance with respect the procedures of any applicable securities depositary. However, the Payors’ obligation to any Notepay Additional Amounts shall not apply to:
(ai) surrendered any Taxes that would not have been so imposed but for:
(A) the existence of any present or former connection between such Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member, partner or shareholder or other equity owner of, or a person having a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, a nominee, a trust, a limited liability company, a partnership, a corporation or other entity) and the Relevant Taxing Jurisdiction, including such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, partner or shareholder or other equity owner or person having such a power) being or having been a citizen or resident or treated as a resident of the Relevant Taxing Jurisdiction or being or having been engaged in a trade or business in the Relevant Taxing Jurisdiction or having or having had a permanent establishment in the Relevant Taxing Jurisdiction;
(B) the failure of such Holder or beneficial owner to comply with a request to provide any certification, information or other reporting requirement, if compliance is required under tax laws and regulations of Relevant Taxing Jurisdiction to establish entitlement to a partial or complete exemption from such Taxes (including, but not limited to, the requirement to provide an applicable Internal Revenue Service Form W-8 (with any required attachment), or any subsequent version thereof or successor thereto);
(ii) [reserved];
(iii) any Taxes that would not have been so imposed but for the presentation by the Holder or the beneficial owner thereof of such Note for payment of principal on a date more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, which payment of the full amount having been so received, Note is duly provided for and notice to that effect shall have been is given to the Holders such Holders, whichever occurs later, except to the extent that the such Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering presenting such Note for payment on any day date during the applicable such 30-day period;
(biv) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, salesales, transfer, personal property property, capital gains, wealth or other similar tax, assessment or other governmental chargeTaxes;
(ev) except in the case of the winding up of the Company any Taxes payable otherwise than by deduction or any Guarantor, any withholding from a payment on such Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made note Guarantee;
(vi) any Taxes payable by or on behalf of a Holder that is not the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment the Note, or that is a fiduciary, partnership, limited liability company or other similar entity, but, in each case, only to the extent that a beneficial owner, a beneficiary or settlor with respect to such fiduciary or beneficial owner member or partner of such partnership, limited liability company or similar entity would not have been entitled to any Additional Amounts the payment of an additional amount had such beneficiary beneficial owner, beneficiary, settlor, member or settlor partner received directly its beneficial or beneficial owner been distributive share of the Holderpayment;
(gvii) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is any Taxes required to be withheld by any paying agent from any payment on any Note, if such payment can be made pursuant to the Luxembourg law of 23 December 2005without such withholding by at least one other paying agent;
(hviii) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of any Taxes which are payable otherwise than by withholding or deduction from a payment made imposed under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code (or any amended or successor provision that is substantively comparable), any current or future regulations thereunder or official interpretations interpretation thereof, any agreement entered into pursuant to Section 1471(b) or an intergovernmental agreement between of the United States and another jurisdiction facilitating the implementation thereof (Internal Revenue Code or any fiscal or regulatory legislation, rules rule or practices implementing such an practice adopted pursuant to any intergovernmental agreement, treaty or convention entered into in connection with the implementation of the foregoing;
(ix) any Taxes imposed under or in connection with the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021); or
(x) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii), (viii) and (ix).
(c) For purposes of this Section 2.14, the acquisition, ownership, enforcement, or holding of or the receipt of any payment with respect to a Note will not constitute a connection (x) between the Holder or beneficial owner and the United States or (y) between a fiduciary, settlor, beneficiary, member, partner or shareholder or other equity owner of, or a person having a power over, such withholding Holder or deductionbeneficial owner if such Holder or beneficial owner is an estate, a “FATCA Withholding”). Neither trust, a limited liability company, a partnership, a corporation or other entity and the Company nor any United States.
(d) Any reference in this Indenture or in the Notes to principal or interest or other personpayment on the Notes shall be deemed to refer also to Additional Amounts that may be payable under the provisions of this Section 2.14.
(e) Except as specifically provided under this Section 2.14, including any Guarantor, the Issuer will not be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes tax, duty, assessment or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay other governmental charge imposed by any present or future stamp, court or documentary taxes government or any other excise political subdivision or property taxes, charges taxing authority of or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture Netherlands or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above)Jurisdiction. The foregoing obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, indenture and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer a Payor is organized or any Guarantor is incorporated, engaged in business for tax purposes or otherwise considered to be a resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision or taxing authority or agency thereof or therein.
Appears in 2 contracts
Sources: Indenture (Organon & Co.), Indenture (Organon & Co.)
Additional Amounts. All Unless specified pursuant to Section 3.01, all payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes Securities or Guarantees (whether or not in the Subsidiary Guarantees form of definitive notes) of any series will be made free and clear of and without withholding or deduction for or on account of any present or future taxTaxes, dutyunless the withholding or deduction is then required by law or by the interpretation or administration thereof by the relevant government authority or agency. If any deduction or withholding for, levyor on account of, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) Taxes imposed or levied under the laws of Canada or by or on behalf of any jurisdiction in which the Company or any Subsidiary Guarantor (including any successor entitiesor other surviving entity) is then organized incorporated, engaged in business or resident for tax purposes purpose or any political subdivision or taxing authority thereof or therein or any jurisdiction by from or through which payment is made by or on behalf of the Company or any Subsidiary Guarantor (including, without limitation, the jurisdiction of an paying agent) (each, a “Relevant Taxing Tax Jurisdiction”), unless the Company or ) will at any Guarantor (or any Paying Agent) is time be required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction be made from any payment payments made under or with respect to the Notes Securities, including, without limitation, payments of principal, redemption price, purchase price, interest or the Subsidiary Guaranteespremium, the Company or any such Guarantor the relevant Subsidiary Guarantor, as applicable, will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received in respect of such payments by such Holder (including the Additional Amounts) each holder after such withholding or deduction (including with respect to Additional Amounts) will not be less than the amount such Holder the holder would have received if such Taxes had not been withheld or deducted; provided, provided however, that no Additional Amounts will be payable with respect to any Noteto:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has any Taxes that would not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to imposed but for the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of the Securities being a citizen or resident or national of, incorporated in or carrying on a business, in the relevant Tax Jurisdiction in which such Taxes are imposed or having any other present or former connection with the relevant Tax Jurisdiction other than the mere acquisition, holding, enforcement or receipt of payment in respect of the Securities;
(2) any Taxes that are imposed or withheld as a result of the failure of the Holder or beneficial owner of the Securities to comply with any reasonable written request, made to that Holder or beneficial owner in writing at least 90 days before any such withholding or deduction would be payable, by the Company to provide information, documents or other evidence timely and accurate information concerning the nationality, residence, residence or identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner or to make any valid and timely declaration or similar claim or satisfy any certification, information or other reporting requirement, which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing relevant Tax Jurisdiction as a precondition to any exemption from or reduction in all or part of such tax, assessment or governmental chargeTaxes;
(c3) held by or on behalf of a Holder or any Security presented for payment (where Securities are in definitive form and presentation is required) more than 30 days after the beneficial owner who relevant payment is liable first made available for Taxes in respect of such Note by reason of having some connection with payment to the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being (except to the extent that the Holder or having beneficial owner would have been a citizen or resident thereof or being or having entitled to Additional Amounts had the Security been present or engaged in a trade or business therein or having had a permanent establishment thereinpresented on any day during such 30-day period);
(d4) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental chargeTaxes;
(e5) except in the case of the winding up of the Company any Taxes withheld, deducted or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident an individual and is that are required to be made pursuant to European Council Directive 2003/48/EC or any other directive implementing the Luxembourg conclusions of the ECOFIN Council meeting of 26 and 27 November 2000 on the taxation of savings income or any law of 23 December 2005implementing or complying with or introduced in order to conform to such Directive;
(h6) when such withholding or deduction any Taxes which the payor is not required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established indeduct or withhold from payments under, or (y) paid or accrued to a person established or domiciled inwith respect to, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôtsSecurities;
(i7) in case of any Taxes which are payable otherwise than by withholding withheld, deducted or deduction from a payment made under imposed because the holder or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of notes does not deal at arm’s length with the Company or a relevant Guarantor at a relevant time for purposes of any Guarantorthe Income Tax Act (Canada); or
(k) Any 8) any combination of items (a1) through (j7) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any the relevant Subsidiary Guarantor will also make such withholding all withholdings or deduction deductions required by law and will remit the full amount deducted or withheld to the relevant taxing authority as and when required in accordance with applicable law. The Company will furnishpay all taxes, within 60 days after interest and other liabilities which arise by virtue of any failure of the date Company to withhold, deduct and remit to the relevant authority on a timely basis the full amounts required in accordance with applicable law. Upon request, the Company will provide to the Trustees an official receipt or, if official receipts are not obtainable, other documentation reasonably satisfactory to the Trustees evidencing the payment of any Taxes is due pursuant so deducted or withheld. The Company will attach to applicable law, to each certified copy or other document a certificate stating the Trusteeamount of such Taxes paid per $1,000 principal amount of the Securities then outstanding. Upon request, copies of tax those receipts (or other documentation, as the case may be, will be made available by the Trustees to the Holders of the Securities. The Company will indemnify each Trustee and each Holder of the Securities for and hold them harmless against the full amount of any Taxes paid by or on behalf of such Trustee or such Holder to the extent received such Trustee or such Holder was entitled to Additional Amounts with respect thereto. A certificate as to the amount of such requested indemnification, delivered by the Trustee or by the Holder, shall be conclusive absent manifest error. In addition, the Company will pay and indemnify the Trustee and the Holder for any present or future stamp, court or documentary taxes, and any other excise or property taxes, charges or similar levies which arise in a Tax Jurisdiction from the relevant tax authorities execution and delivery of this Indenture or the execution, delivery or registration of the Securities or with respect to payments on the Securities. All amounts discussed in this paragraph shall be payable by the usual course or as generally provided) evidencing that Company on demand and shall bear interest at the rate borne by the Securities, calculated from the date incurred by the Holder to the date paid by the Company. All such payment has been made by amounts shall be Additional Amounts for the purpose of this Indenture. If the Company or any Guarantor. The Trustee Subsidiary Guarantor becomes aware that it will make such evidence available be obligated to the Holders upon request. At least 30 days prior pay Additional Amounts with respect to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payableSecurities, if the Company or any Guarantor becomes obligated will deliver to pay Additional Amounts with respect the Trustees on a date that is at least 30 days prior to such the date of that payment (unless such the obligation to pay Additional Amounts arises after the 30th day prior to the date on which that payment under or with respect to the Notes or the Subsidiary Guarantees is due and payabledate, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent shall notify the Trustees promptly thereafter) an Officers’ Certificate stating the fact that such Additional Amounts will be payable, payable and the amount estimated to be so payable and will payable. The Officers’ Certificate must also set forth such any other information as reasonably necessary to enable such any Paying Agent to pay such Additional Amounts to the Holders of the Notes on the relevant payment date. Whenever The Trustees shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. The Company will provide the Trustees with documentation reasonably satisfactory to the Trustees evidencing the payment of Additional Amounts. References in this Indenture there is mentionedto interest, in any context, (a) principal or other payments made or to be made by the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or Company with respect to any of the Notes or the Subsidiary Guarantees, such mention is Securities shall be deemed also to include mention of refer to the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would Section 3.01 that may be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic provisions of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will 10.05 shall survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinIndenture.
Appears in 2 contracts
Sources: Indenture (Taseko Mines LTD), Indenture (Taseko Mines LTD)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under of principal, premium, if any, or with respect to interest or other amounts on the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment be made (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payablesuch date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be paid promptly thereafter and in obligated to pay Additional Amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”) with respect to any case before the relevant payment date)such payment, the Company Issuer will deliver to each promptly furnish the Trustee and the Paying Agent Agent, if other than the Trustee, with an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable, and the amount so payable and will set forth such other information as necessary to enable such the Trustee or the Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the Holders upon request. The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.12. The Issuer and each Guarantor (as applicable) will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer and each Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copy to the Trustee. If the Issuer or the Guarantors conduct business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, are required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply to such Holders as if references in such provision to “Taxes” included taxes imposed by way of deduction or withholding by any such Additional Taxing Jurisdiction (or any political subdivision thereof or taxing authority therein). The Issuer will pay any present stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in any Relevant Taxing Jurisdiction from the execution, delivery and registration of Notes upon original issuance and initial resale of the Notes or any other document or instrument referred to therein, or in connection with any payment with respect to, or enforcement of, the Notes or any Note Guarantee or any other document or instrument referred to therein. If at any time the Issuer changes its place of organization to outside of the United States or there is a new issuer organized outside of the United States, the Issuer or new issuer, as applicable, will pay any stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in the jurisdiction in which the Issuer or new issuer is organized (or any political subdivision thereof or therein) and are payable by the Holders of the Notes in respect of the Notes or any Note Guarantee or any other document or instrument referred to therein under any law, rule or regulation in effect at the time of such change or thereafter. The foregoing obligations of this Section 4.12 and Paragraph 2 of the Notes will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Issuer or the Guarantors. Whenever in this Indenture or in the Notes or any Note Guarantee there is mentioned, in any context, (a) the payment of principal (and premiumprincipal, purchase price, premium or interest, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesNote, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (Fresenius Medical Care AG & Co. KGaA), Indenture (Fresenius Medical Care AG & Co. KGaA)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penaltiespenalities, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor (and each Paying Agent) will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders by the Trustee, except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) any withholding or deduction imposed on a payment to an individual which is required to be made pursuant to any law implementing or complying with, or introduced in order to conform to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of 26–27 November 2000 on the taxation of savings income or any agreement between the European Community and any jurisdiction providing for equivalent measures;
(g) as a result of any combination of (a), (b), (c), (d), (e) or (ef) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;; or
(gh) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, Notes or any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (CGG), Indenture (CGG Holding B.V.)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-non- coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 2 contracts
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (hereinafter “Taxes”) imposed unless the withholding or levied by or on behalf deduction of any jurisdiction in which the Company or any Guarantor (including any successor entities) such Taxes is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction required by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authoritylaw. If the Company any deduction or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for withholding for, or on account of of, any Taxes imposed or levied by or on behalf of the government of the Republic of ▇▇▇▇▇▇▇▇ Islands or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Company (including any successor entity) is organized or is otherwise resident for tax purposes, or any jurisdiction from or through which payment is made (including, without limitation, the jurisdiction of each paying agent) (each a Relevant Taxing Jurisdiction “Specified Tax Jurisdiction”), will at any time be required to be made from any payment payments made under or with respect to the Notes or the Subsidiary Guarantees, Notes. the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received in respect of such payments by such a Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable with respect to any Notedoes not apply to:
(ai) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has any Taxes that would not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having have been so received, notice to that effect shall have been given to imposed but for the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents of the Notes having any present or other evidence concerning the nationality, residence, identity or former connection with the Relevant Taxing Specified Tax Jurisdiction (other than the mere acquisition, ownership, holding, enforcement or receipt of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice payment in respect of the Relevant Taxing Jurisdiction as a precondition to exemption from all Notes);
(ii) any estate, inheritance, gift, sales, excise, transfer, personal property tax or part of such similar tax, assessment or governmental charge;
(ciii) held any Taxes payable other than by deduction or on behalf withholding from payments under, or with respect to, the Notes;
(iv) any Taxes imposed as a result of a the failure of the Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Notes to complete, execute and deliver to the Company any form or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, document to the extent applicable to such Holder or beneficial owner being that may be required by law or having been by reason of administration of such law and which is reasonably requested in writing to be delivered to the Company in order to enable the Company to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a citizen lesser amount, which form or resident thereof or being or having been present or engaged in document will be delivered within 60 days of a trade or business therein or having had a permanent establishment thereinwritten request therefor by the Company;
(dv) any Taxes that would not have been so imposed but for the beneficiary of the payment having presented a Note for payment (in cases in which presentation is required) more than 30 days after the date on account which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental chargesuch 30-day period);
(evi) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) Taxes imposed on or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any the Holder who if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment would not have been entitled to any Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holderactual Holder of such Note;
(gvii) such withholding any Taxes that are required to be deducted or deduction is imposed or levied withheld on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg European Council Directive 2003/48/EC or any law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inimplementing, or (y) paid or accrued introduced in order to a person established or domiciled inconform to, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantordirective; or
(kviii) Any any combination of items (ai) through (jvii) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of .
(b) If the Company or by any Guarantor, becomes aware that it will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required obligated to pay any Additional Amounts in with respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payableNotes, if the Company or any Guarantor becomes obligated will deliver to pay Additional Amounts with respect the Trustee and Paying Agent at least 30 days prior to such the date of that payment (unless such the obligation to pay Additional Amounts arises after the 30th day prior to the date on which that payment under or with respect to the Notes or the Subsidiary Guarantees is due and payabledate, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each notify the Trustee and Paying Agent in writing promptly thereafter but in no event later than five calendar days prior to the date of payment) an Officers’ Certificate stating the fact that such Additional Amounts will be payable, payable and the amount so payable and will payable. The Officers’ Certificate shall also set forth such any other information as necessary to enable such the Paying Agent to pay such Additional Amounts to Holders on the relevant payment date. The Trustee and Paying Agent will be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. The Company will provide the Trustee and Paying Agent with documentation evidencing the payment of Additional Amounts.
(c) The Company will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant governmental authority on a timely basis in accordance with applicable law. As soon as practicable, the Company will provide the Trustee and Paying Agent with an official receipt or, if official receipts are not obtainable, other documentation evidencing the payment of the Taxes so withheld or deducted. Upon written request, copies of those receipts or other documentation, as the case may be, will be made available by the Trustee and Paying Agent to the Holders of the Notes on the payment date. Notes.
(d) Whenever in the Indenture or this First Supplemental Indenture there is mentionedreferenced, in any context, (a) the payment of amounts based upon the principal (and premium, if any), (b) purchase prices in connection with a purchase amount of the NotesNotes or of principal, (c) interest or (d) any other amount payable on under, or with respect to any of to, the Notes or the Subsidiary GuaranteesNotes, such mention is reference will be deemed to include mention of the payment of Additional Amounts provided for in as described under this section heading to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(e) The Company will indemnify a Holder, within 10 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder to a governmental authority of a Specified Tax Jurisdiction, on or with respect to any payment by on or account of any obligation of the Company to withhold or deduct an amount on account of Taxes for which the Company would have been obligated to pay Additional Amounts hereunder and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant governmental authority. A certificate as to the amount of such payment or liability delivered to the Company by a Guarantor, as the case may be, Holder will be conclusive absent manifest error.
(f) The Company will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Specified Tax Jurisdiction from the initial issue execution, delivery, enforcement or registration of the Notes Notes, the Indenture or on any other document or instrument in relation thereof, or the enforcement receipt of any payments with respect to the Notes, any Subsidiary Guarantee, and the Indenture or any other documents related thereto (limited, in case of Taxes attributable to Company will indemnify the receipt of payments thereto, to Holders for any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer taxes paid by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinHolders.
Appears in 2 contracts
Sources: Supplemental Indenture (Paragon Shipping Inc.), Supplemental Indenture (Scorpio Bulkers Inc.)
Additional Amounts. All payments made by (a) At least 10 days prior to the first date on which payment of principal, premium, if any, or interest on behalf of the Company Notes or the Guarantees is to be made, and at least 10 days prior to any Guarantor under or subsequent such date if there has been any change with respect to the matters set forth in the Officers’ Certificate described in this Section 4.20, the Issuer will furnish the Trustee and the Principal Paying Agent, if other than the Trustee, with an Officers’ Certificate instructing the Trustee and the Principal Paying Agent whether such payment of principal, premium, if any, or interest on the Notes (whether or not in the Subsidiary Guarantees will form of Definitive Notes) or any Guarantee shall be made free and clear of and to the Holders without withholding or deduction for for, or on account of of, any present or future taxtaxes, dutyduties, levyassessments or governmental charges of whatever nature (collectively, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the Company Payor or any Guarantor (including any or successor entities) Guarantor is then organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (ii) any jurisdiction by from or through which payment on the Notes or any of the Guarantees is made made, or any political subdivision or governmental authority thereof or therein having the power to tax (eacheach of clause (i) and (ii), a “Relevant Taxing Jurisdiction”), unless the Company withholding or deduction of Taxes is then required by law.
(b) If any Guarantor (deduction or withholding for, or on account of, any Paying Agent) is required to withhold or deduct Taxes under the laws of the any Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or will at any Guarantor (or any Paying Agent) is so time be required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment payments made under or with respect to the Notes or the Subsidiary Guarantees, including payments of principal, Redemption Price, interest or premium, if any, the Company Payor or any such Guarantor the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts pursuant to each Holder Paragraph 2 of the Notes that are outstanding on (the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;).
(c) held by The Payor and each Guarantor or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any successor Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
will (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is make any required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority Relevant Taxing Jurisdiction in accordance with applicable law. The Company Upon written request, the Payor and each Guarantor will furnish, within 60 days after the date use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes is due pursuant so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to applicable law, each Holder. The Payor and each Guarantor or successor Guarantor will attach to each certified copy a certificate stating (x) that the Trustee, copies amount of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made withholding Taxes evidenced by the Company or any Guarantorcertified copy was paid in connection with payments in respect of the principal amount of Notes then outstanding and (y) the amount of such withholding Taxes paid per €1,000 principal amount of the Notes. The Trustee will make Copies of such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it documentation will be paid promptly thereafter and in any case before available for inspection during ordinary business hours at the relevant payment date), office of the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to Trustee by the Holders of the Notes on the payment date. Whenever upon request.
(d) Wherever in this Indenture or the Notes there is are mentioned, in any context, (ai) the payment of principal (and premium, if any)principal, (bii) purchase prices in connection with a purchase of the Notes, (ciii) interest or (div) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for as described in this section Indenture and the Notes to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(e) The Company Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or a Guarantorexpense incurred without gross negligence, as the case may be, will pay any present willful default or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic bad faith on their part arising out of France or in connection with actions taken or omitted by any jurisdiction of them in which a Paying Agent is located from the initial issue or registration of the Notes or reliance on the enforcement of any payments with respect Officers’ Certificate furnished to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable them pursuant to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 4.20.
(f) Obligations under this Section 4.20 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinIndenture.
Appears in 2 contracts
Sources: Indenture (Smurfit WestRock PLC), Indenture (Smurfit WestRock PLC)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor Issuers under or with respect to the Notes or the Subsidiary Guarantees will shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of the Government of Canada or of any jurisdiction in which the Company province or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision territory thereof or by any authority or agency therein or any jurisdiction by or through which payment is made thereof having power to tax (each, a “Relevant Taxing Jurisdiction”hereinafter "Taxes"), unless the Company or any Guarantor (or any Paying Agent) is Issuers are required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authoritythereof. If the Company or any Guarantor (or any Paying Agent) is Issuers are so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesNotes, the Company or any such Guarantor will Issuers shall pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“"Additional Amounts”") as may be necessary so that the net amount received by such each Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such the Holder would have received if such Taxes had not been withheld or deducted, ; provided that no Additional Amounts will be payable with respect to any Note:
a payment made to a Holder (aan "Excluded Holder") surrendered by (i) with which either Issuer does not deal at arm's length (within the Holder or meaning of the beneficial owner thereof for payment Income Tax Act (Canada)) at the time of principal more than 30 days after the later of (1) the date on which making such payment first became due and or (2ii) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior which is subject to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld Taxes by reason of the failure to comply its being connected with Canada or any province or territory thereof otherwise than by the Holder or, if different, the beneficial owner (ayant-droit) mere holding of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, Notes or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
thereunder. The Issuers shall also (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishIssuers shall furnish to the Holders of the Notes, within 60 30 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts evidencing such payment by the Issuers. The Issuers shall indemnify and hold harmless each Holder (other than an Excluded Holder) and upon written request reimburse each such Holder for the amount of (i) any Taxes so levied or imposed and paid by such Holder as a result of payments made under or with respect to the extent received from the relevant tax authorities in the usual course Notes, (ii) any liability (including penalties, interest and expenses) arising therefrom or as generally providedwith respect thereto, and (iii) evidencing that such payment has been made by the Company any present or future tax, duty, levy, impost, assessment or other governmental charge imposed or levied with respect to any Guarantor. The Trustee will make such evidence available to the Holders upon requestreimbursement under clause (i) or (ii) above. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes Issuers will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after payment, the 30th day prior Issuers shall deliver to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent Trustee an Officers’ ' Certificate stating the fact that such Additional Amounts will be payable, and the amount amounts so payable and will shall set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase redemption price, Change of the NotesControl Payment, (c) Offered Price, interest or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary Guarantees, Note such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as thereof pursuant to the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in provisions of this Section 4.17 and express mention of the United States, the Republic payment of France or Additional Amounts (if applicable) in any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which a Paying Agent those provisions hereof where such express mention is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto not made (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveif applicable). The obligations of the Company or any Guarantor described in Issuers under this Section 4.19 will 4.17 shall survive any termination, defeasance or satisfaction and discharge the termination of this Indenture and the payment of all amounts under or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person with respect to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinNotes.
Appears in 2 contracts
Sources: Indenture (Consoltex Usa Inc), Indenture (Consoltex Inc/ Ca)
Additional Amounts. All payments made by or on behalf of the Company any Issuer or any Guarantor under or any successor in interest to any of the foregoing (each, a “Payor”) on or with respect to the Notes or the Subsidiary Guarantees any Guarantee will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (including without limitationcollectively, penalties, interest and any other liability with respect thereto) (“Taxes”) unless such withholding or deduction is required by law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of of:
(a) any jurisdiction in which (other than the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United States or any political subdivision or governmental authority thereof or therein or any jurisdiction by having power to tax) from or through which payment on the Notes or any Guarantee is made by such Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(eachb) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a Payor that actually makes a payment on the Notes or its Guarantee is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax, (each of clause (a) and (b), a “Relevant Taxing Jurisdiction”), unless the Company or will at any Guarantor (or any Paying Agent) is time be required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment payments made under or with respect to the Notes or the Subsidiary Guaranteesany Guarantee, including payments of principal, redemption price, interest or premium, if any, the Company or any such Guarantor Payor will pay to each Holder of the Notes that are outstanding on the date of the required payment, (together with such payments) such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by such Holder (including the Additional Amounts) Holders or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amount such Holder amounts that would have been received if in respect of such Taxes had not been withheld payments on the Notes or deductedthe Guarantees in the absence of such withholding or deduction; provided, provided however, that no such Additional Amounts will be payable with respect to any Notefor or on account of:
(ai) surrendered by any Taxes that would not have been so imposed or levied but for the Holder existence of any present or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of former connection between the relevant Holder (or the beneficial owner on between a fiduciary, settlor, beneficiary, partner, member or prior to such due dateshareholder of, or possessor of power over, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder orrelevant Holder, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder is an estate, nominee, trust, partnership, limited liability company or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or the receipt of any payment in respect thereof;
(ii) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the Payor (such request being made at a time that would enable such holder acting reasonably to comply with that request) to make a declaration of nonresidence or beneficial owner any other claim or filing or satisfy any certification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by a statutethe applicable law, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold all or a part of any such tax, assessment or governmental chargeTaxes);
(ciii) held any Taxes that are payable otherwise than by withholding from a payment on the Notes or any Guarantee;
(iv) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(v) any Taxes that are required to be deducted or withheld on a payment pursuant to the Directive or any law implementing, or introduced in order to conform to, the Directive;
(vi) any Taxes imposed in connection with a Note presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another paying agent in a member state of the European Union;
(vii) any Taxes imposed pursuant to the Directive, or any law implementing or complying with, or introduced in order to conform to, the Directive;
(viii) any Taxes payable under Sections 1471 through 1474 of the Code, as of the date of the Offering Circular (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements (including any intergovernmental agreements) entered into pursuant thereto; or
(ix) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was first made available for payment to the Holder or (y) where, had the beneficial owner who is liable for Taxes in respect of such the Note by reason been the Holder of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any payment of Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A any of the French Code général des impôts;
clauses (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(jviii) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) inclusive above. Notwithstanding The Payor will (1) make any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (2) remit the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The Company Upon request, the Payor will furnish, within 60 days after the date use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes is due pursuant to applicable law, so deducted or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. If, copies notwithstanding the efforts of tax such Payor to obtain such receipts, the same are not obtainable, such Payor will provide the Trustee with other reasonable evidence. Such receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been other evidence will be made available by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon on request. At If any Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to each the date on which any payment under or with respect of such payment, the Payor will deliver to the Notes or Trustee an Officer’s Certificate stating the Subsidiary Guarantees is due fact that Additional Amounts will be payable and payable, if the Company or any Guarantor becomes obligated amount so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts with respect to such Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises after the 30th day less than 45 days prior to the date on which relevant payment under or with respect to the Notes or the Subsidiary Guarantees is due and payabledate, in which case it will be paid promptly thereafter the Payor shall deliver such Officer’s Certificate and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary promptly as practicable after the date that is 30 days prior to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date, but no less than five Business Days prior thereto, and otherwise in accordance with the requirements of DTC). Whenever Wherever in this Indenture Indenture, the Notes or any Guarantee there is mentioned, in any context, :
(a1) the payment of principal principal,
(and premium, if any), (b2) redemption prices or purchase prices in connection with a redemption or purchase of the Notes,
(3) interest, or
(c) interest or (d4) any other amount payable on or with respect to any of the Notes or the Subsidiary Guaranteesany Guarantee, such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for as described in this section Section 2.15 to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, Payor will pay any present or future stamp, court or documentary taxes Taxes, or any other excise or excise, property taxes, charges or similar levies Taxes that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial issue resale, registration or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the this Indenture or any other documents related document or instrument in relation thereto (limited, in case other than a transfer of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveNotes). The foregoing obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer a Payor is organized or any Guarantor is incorporated, engaged in business for tax purposes or otherwise considered to be a resident for tax Tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision or taxing authority or agency thereof or therein. The Issuers and the Guarantors shall ensure that no proceeds raised under the Notes will be used in a manner which would constitute a “use of proceeds in Switzerland” as interpreted by Swiss tax authorities for the purposes of Swiss Withholding Tax (Verrechnungssteuer), except and to the extent that a written confirmation or tax ruling countersigned by the Swiss Federal Tax Administration (Eidgenössische Steuerverwaltung) has been obtained confirming that the intended “use of proceeds in Switzerland” if guaranteed by a Swiss resident Guarantor does not result in the Notes qualifying as a Swiss notes issue for Swiss Withholding Tax purposes.
Appears in 1 contract
Additional Amounts. All payments made by the Issuer under or on behalf of with respect to the Securities, by the Company under or with respect to the Company Guarantee and by any Subsidiary Guarantor under or with respect to its Subsidiary Guarantee (the Notes or Issuer, the Company and any such Subsidiary Guarantees Guarantor being referred to for purposes of this paragraph individually as an "Obligor" and collectively as the "Obligors") will be made free and clear of of, and without withholding or deduction for or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of the Government of Canada or of any province or territory thereof or by any authority or agency therein or thereof having power to tax (or the jurisdiction in which the Company or any Guarantor (including of incorporation of any successor entitiesof any Obligor) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”hereunder "Taxes"), unless the Company applicable Obligor or any Guarantor (or any Paying Agent) successor, as the case may be, is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authoritygovernmental authority or agency. If the Company any Obligor or any Guarantor (or any Paying Agent) successor, as the case may be, is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesSecurities, the Company Guarantee or any Subsidiary Guarantee, such Guarantor Obligor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“"Additional Amounts”") as may be necessary so that the net amount received by such each Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such the Holder would have received if such Taxes had not been withheld or deducted, provided ; PROVIDED that no Additional Amounts will be payable with respect to any Note:
a payment made to a Holder (an "Excluded Holder") in respect of a beneficial owner (a) surrendered by with which the Holder or Issuer does not deal at arm's-length (within the beneficial owner thereof for payment meaning of principal more than 30 days after the later Income Tax Act (Canada)) at the time of (1) the date on which making such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge which is imposed or withheld subject to such Taxes by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note its being connected with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company Canada or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State province or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture (Canadian Forest Oil LTD)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and other liabilities related to any such tax, duty, levy, impost, assessment or other liability with respect theretogovernmental charge) (“collectively, "Taxes”") imposed or levied by or on behalf of the Netherlands or any other jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or is a resident for tax purposes or by any government authority or political subdivision thereof or territory or possession or agency therein or any jurisdiction by or through which payment is made thereof having the power to tax (each, a “Relevant "Taxing Jurisdiction”Authority"), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the an interpretation or administration thereof by the relevant taxing authorityof law. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed by a Taxing Authority within the Netherlands or levied by within any other jurisdiction in which the Company is organized or on behalf of is a Relevant Taxing Jurisdiction resident for tax purposes, from any payment made under or with respect to the Notes or the Subsidiary GuaranteesNotes, the Company or any such Guarantor will shall pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“"Additional Amounts”") as may be necessary so that the net amount received by such each Holder (including the Additional Amounts) of Notes after such withholding or deduction will not be less than the amount such the Holder and beneficial owner would have received if such Taxes had not been withheld or deducted. However, provided that no Additional Amounts will be payable with respect to a payment made to a Holder of Notes or to a third party on behalf of a Holder with respect to (a) any Taxes that would not have been imposed but for the existence of any present or former connection between that Holder and the jurisdiction imposing such tax (other than the mere receipt of payment or the ownership or holding outside of the Netherlands of such Note); (b) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; (c) any Taxes payable otherwise than by deduction or withholding from payments of principal of, premium, if any, or interest on such Note; or (d) Taxes that would not have been imposed but for the failure of the Holder or beneficial owner of a Note to comply with any certification, identification, information, or other documentation requirement under law, regulation, administrative practice or an applicable treaty that is a precondition to exemption from, or reduction in the rate of the imposition, deduction or withholding of Taxes; nor will Additional Amounts be paid:
(ai) surrendered if the payment under or with respect to the Notes could have been made by another Paying Agent without such deduction or withholding,
(ii) if the Holder payment under or with respect to the beneficial owner thereof Notes could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment of principal more than 30 within 15 days after the later of (1A) the date on which such payment first or such Note became due and payable or (2B) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on whichwhich payment thereof is duly provided for, the full amount having been so received, notice to that effect shall have been given to the Holders whichever is later (except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts had the Note been presented on surrendering the last day of such Note for payment on any day during the applicable 3015-day period;), or
(biii) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by under or on behalf of with respect to the Company or any Guarantor in respect of any Note or Subsidiary Guarantee Notes to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to any the Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holder;
(g) actual Holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
Note. The Company will also (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company shall use its reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Company will furnishsupply to the Trustee for forwarding to all Holders, without cost to such Holders, within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make if, notwithstanding the Company's efforts to obtain such receipts, the same are not obtainable, other evidence available to of such payments by the Holders upon requestCompany. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)payment, the Company will deliver to each Paying Agent the Trustee an Officers’ ' Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable, and the amount so payable and will set forth such other information as is necessary to enable such Paying Agent Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. The provisions under this Section 4.20 will survive any termination or the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor person to the Company is organized or is engaged in business for tax purposes or any political subdivision or taxing authority or agency thereof or therein. In addition, the Company shall pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest and penalties, payable in the Netherlands or any political subdivision of or in the Netherlands in respect of the creation, issue and offering of the Notes. Whenever in this Indenture or the Notes there is mentioned, mentioned in any context, (a) the payment of amounts based upon principal (and of, premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) or interest or (d) of any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesNotes, such mention is will be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture (Jones Lang Lasalle Inc)
Additional Amounts. All payments made by or on behalf Unless otherwise specified in any Board Resolution of the Company Guarantor establishing the Guarantees relating a series of Securities in accordance with Section 301, if any deduction or withholding for any present or future taxes, assessments or other governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Guarantor is incorporated, shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Guarantor under or the Guarantees, the Guarantor will pay to the Holder of a Security of such series such additional amounts as may be necessary in order that the net amounts paid to such Holder of such Security who, with respect to any such tax, assessment or other governmental charge, is not resident in such jurisdiction, after such deduction or withholding, shall be not less than the Notes or amounts specified in such Security to which such Holder is entitled; provided, however, that the Subsidiary Guarantees will Guarantor shall not be made free and clear required to make any payment of and without withholding or deduction additional amounts (1) for or on account of any present or future such tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United States or any political subdivision or taxing authority thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent2) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Noteof:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is which would not have been imposed but for (i) the existence of any present or withheld by reason former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of the failure to comply by the Holder ora power over, such Holder, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder is an estate, trust, partnership or beneficial owner to provide information, documents or other evidence concerning corporation) and the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company taxing jurisdiction or any Guarantor in respect political subdivision or territory or possession thereof or any Subsidiary Guaranteearea subject to its jurisdiction, including, without limitation, such Holder (or beneficial owner such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment thereintherein or (ii) the presentation of a Security of such series (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(db) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(ec) except any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments of (or in respect of) principal of, or any interest on, the Securities of such series;
(d) any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of the Security of such series (i) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make any declaration or other similar claim or satisfy any information or reporting requirements, which, in the case of the winding up (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of the Company taxing jurisdiction as a precondition to exemption from all or any Guarantorpart of such tax, any Note surrendered for payment in the Republic of France;assessment or other governmental charge; or
(fe) as a result of any combination of items (a), (b), (c), ) and (d) or (e) or above; nor shall additional amounts be paid with respect to any payment made by or on behalf of the Company principal of, or any Guarantor in respect interest on, any Security of any Note or Subsidiary Guarantee such series to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that such payment would be required by the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to any Additional Amounts such additional amounts had such beneficiary or settlor or beneficial owner it been the Holder;
(g) Holder of such Security. The foregoing provisions shall apply mutatis mutandis to any withholding or deduction is imposed for or levied on a payment to a Luxembourg resident individual and is required to be made pursuant account of any present or future taxes, assessments or governmental charges of whatever nature of any jurisdiction in which any successor Person to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction Guarantor is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inorganized, or (y) paid any political subdivision or accrued to a person established taxing authority thereof or domiciled intherein; provided, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenturehowever, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made of -------- ------- additional amounts may be subject to such further exceptions as may be established in the terms of such Securities established as contemplated by the Company or any GuarantorSection 301. The Trustee will make such evidence available Subject to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payableforegoing provisions, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever whenever in this Indenture there is mentioned, in any context, (a) the payment of the principal (and premiumof or any premium or interest on, if any)66 or in respect of, (b) purchase prices in connection with a purchase any Security of the Notes, (c) interest any series or (d) payment of any other amount payable on or with respect to any of the Notes related coupon or the Subsidiary Guaranteesnet proceeds received on the sale or exchange of any Security of any series, such mention is shall be deemed to include mention of the payment of Additional Amounts additional amounts provided for in this section Section to the extent, extent that, in such context, Additional Amounts additional amounts are, were or would be payable in respect thereofthereof pursuant to the provisions of this Section and express mention of the payment of additional amounts (if applicable) in any provisions hereof shall not be construed as excluding additional amounts in those provisions hereof where such express mention is not made. The Company or If the terms of the Securities of a series established as contemplated by Section 301 do not specify that additional amounts pursuant to the Section will not be payable by the Guarantor, as at least 10 days prior to the case may be, first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United Statesnot bear interest prior to Maturity, the Republic of France or in any jurisdiction in first day on which a Paying Agent payment of principal and any premium is located from the initial issue made), and at least 10 days prior to each date of payment of principal and any premium or registration of the Notes or on the enforcement of interest if there has been any payments change with respect to the Notesmatters set forth in the below-mentioned Officers' Certificate, the Guarantor will furnish the Trustee and the Company's principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers' Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and any premium or interest on the Securities of that series or under the related Guarantees shall be made to Holders of Securities of that series without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of that series or the related Guarantees. If any such withholding shall be required, then such Officers' Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities and the Guarantor (only if a payment under said Guarantees is then due) will pay to the Trustee or such Paying Agent or Paying Agents the additional amounts required by this Section. The Guarantor covenants to indemnify each of the Trustee and any Paying Agent for, and to hold each of them harmless against, any Subsidiary Guaranteeloss, the Indenture liability or expense arising out of or in connection with actions taken or omitted by any other documents related thereto (limitedof them in reliance on any Officer's Certificate furnished pursuant to this Section, in case of Taxes attributable except to the receipt of payments thereto, to extent that any such Taxes imposed loss, liability or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above)expense is due to its own negligence or bad faith. The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.ARTICLE ELEVEN
Appears in 1 contract
Sources: Indenture (Bp PLC)
Additional Amounts. All payments made by or on behalf of the Company Issuer or any Guarantor as well as all payments made by a trustee (each, a “Payor”) pursuant to Article 8 hereof under or with respect to the Notes or the Subsidiary Guarantees any Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of any government or political subdivision or territory or possession of any government or authority or agency or authority therein or thereof having the power to tax in any jurisdiction in which the Company Issuer or any Guarantor (including any successor entitiestheir permitted successors and assigns) is then organized incorporated, engaged in business or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), ) unless the Company or any Guarantor (or any Paying Agent) such Payor is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the official interpretation or administration thereof by the relevant taxing authoritythereof. If the Company or any Guarantor (or any Paying Agent) a Payor is so required to withhold or deduct any amount of interest for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any Guarantee such Guarantor Payor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) interest (“Additional Amounts”) as may be necessary so such that the net amount received in respect of such payment by such each Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such the Holder would have received if such Taxes had not been required to be so withheld or deducted, ; provided that no Additional Amounts will be payable with respect to any Note:a payment made to a Holder to the extent
(a) surrendered any such Taxes would not have been imposed but for the existence of any present or former connection between such Holder and the Relevant Jurisdiction imposing such Taxes otherwise than merely by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due dateacquisition, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding ownership or disposition of any Note, Note or the receipt of payments made by or on behalf of the Company or receiving any Guarantor payment in respect thereof or the exercise or enforcement of any Subsidiary Guarantee, including, without limitation, such Holder rights under any Notes or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;the Guarantees or
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the Luxembourg conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income or any law of 23 December 2005;
(h) when such withholding implementing or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established incomplying with, or introduced in order to conform to, such Directive (ysuch amounts described in clause (a) paid or accrued to a person established or domiciled inabove and this clause (b), a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
“Excluded Taxes”). Each Payor will also (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company Payor will furnishfurnish to the Holders of the Notes, within 60 30 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts evidencing such payment by such Payor. Each of the Issuer and each Guarantor will indemnify and hold harmless each Holder for the amount of (i) any Taxes (other than Excluded Taxes) not withheld or deducted by a Payor and levied or imposed and paid by such Holder as a result of payments made under or with respect to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company Notes or any Guarantor. The Trustee will make such evidence available Guarantee, (ii) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, and (iii) any Taxes imposed with respect to the Holders upon requestany reimbursement under clause (i) or (ii) above. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes a Payor is aware that it will be obligated to pay Additional Amounts with respect to such payment (unless payment, such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company Payor will deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this the Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on under or with respect to any of the Notes Note or the Subsidiary Guaranteesany Guarantee, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company Issuer or a Guarantorthe Guarantors, as the case may be, will pay any present or future stamp, transfer, court or documentary taxes taxes, or any other excise or property taxes, charges or similar levies that which arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue original execution, delivery or registration of the Notes or on Notes, the initial resale thereof by the Initial Purchaser and the enforcement of the Notes, the Guarantees or the Collateral Agreements following the occurrence of any payments Event of Default with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 foregoing provisions will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, the Notes and will apply, shall apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer or any Guarantor Guarantor, as the case may be, is organized, incorporated, engaged in business for tax purposes or business, resident for tax purposes purposes, or any jurisdiction from or through which such Person makes any payment otherwise subject to taxation on the Notes and any department a net income basis or any political subdivision sub-divisions or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Edgen Murray PLC)
Additional Amounts. All payments made (a) The Company hereby agrees that any amounts to be paid by or on behalf of the Company or any Guarantor under or with respect to the Notes each Security shall be paid without deduction or the Subsidiary Guarantees will be made free withholding for any and clear of all present and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levy, impost, assessment imposts or other governmental charge (including without limitationcharges whatsoever imposed, penaltiesassessed, interest and any other liability with respect thereto) (“Taxes”) imposed levied or levied collected by or on behalf for the account of any jurisdiction in which (i)(x) the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes Republic of Panama or any political subdivision or taxing authority thereof or therein (y) the jurisdiction of incorporation (other than the United States or any political subdivision or taxing authority thereof) of a successor entity to the Company pursuant to Section 8.1, to the extent that such taxes, levies, imposts or other governmental charges first become applicable as a result of such successor entity becoming the obligor on the Securities, or (ii) any other jurisdiction by (other than the United States or any political subdivision or taxing authority thereof) from or through which payment any amount is made paid by the Company hereunder or where it is resident or maintains a place of business or permanent establishment (each, each jurisdiction described in Clauses (i) and (ii) above is referred to herein as a “Relevant Taxing Jurisdiction” and such taxes, levies, imposts or other governmental charges are referred to as “Taxes”), unless the Company withholding or deduction of such Tax is compelled by laws of the Republic of Panama or any Guarantor other applicable Taxing Jurisdiction. If any deduction or withholding of any Taxes (other than Excluded Taxes, as defined below) is ever required by the Republic of Panama or any other Taxing Jurisdiction, the Company shall (subject to compliance by the Holder or beneficial owner of each Security with any applicable administrative requirements) pay such additional amounts (“Additional Amounts”) required to make the net amounts paid to each Holder of such Security or the Trustee pursuant to the terms of this Indenture or the Securities, after such deduction or withholding, equal to the amounts of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, to which such Holder or the Trustee is entitled. However, the Company shall not be required to pay Additional Amounts in respect of the following Taxes (“Excluded Taxes”):
(1) any present or future Taxes imposed, assessed, levied or collected as a result of the Holder or beneficial owner of a Security (i) being organized under the laws of, or otherwise being or having been a domiciliary, national or resident of, (ii) being engaged or having been engaged in a trade or business in, (iii) having or having had its principal office located in, (iv) maintaining or having maintained a permanent establishment in, (v) being or having been physically present in, or (vi) otherwise having or having had some connection (other than the connection arising solely from holding or owning such Security, or collecting principal and interest, if any, on, or the enforcement of, such Security) with the Republic of Panama or any other applicable Taxing Jurisdiction;
(2) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was presented more than thirty days after the date the relevant payment is first made available for payment to the Holder or beneficial owner;
(3) any present or future Taxes imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any Paying Agentrelated law or administrative practices or procedures) is required implementing the foregoing or any agreements entered into pursuant to withhold or deduct Taxes under the laws current Section 1471(b)(1) of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor Code (or any Paying Agentamended or successor version described above);
(4) is so required to withhold any present or deduct future Taxes payable other than by deduction or withholding from payments under, or with respect to, any amount for Security;
(5) any present or on account of future Taxes imposed in connection with a Security presented for payment (where presentation is permitted or levied required for payment) by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of the Security to provide informationthe extent such Taxes could have been avoided by presenting the relevant Security to, documents or otherwise accepting payment from, another Paying Agent;
(6) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the failure to make any certification, identification or other evidence report concerning the nationality, residence, identity or connection with the Relevant Republic of Panama or any other applicable Taxing Jurisdiction of such the Holder or beneficial owner which is required of such Security or imposed by claim for relief or exemption, if making such a statutecertification, treatyidentification, regulation other report or administrative practice claim is, under the laws, rules or regulations of the Relevant Taxing Jurisdiction as any such jurisdiction, a precondition condition to relief or exemption from all or part of such tax, assessment or governmental charge;Taxes;
(c7) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment Tax or other governmental charge;duty; or
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of 8) any combination of Clauses (a)1) through (7) above; provided further, (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor that no such Additional Amounts shall be payable in respect of any Note or Subsidiary Guarantee to Security held by (x) any Holder who or beneficial owner that is a fiduciary or partnership or other than not the sole beneficial owner of such payment Security, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner owner, partner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to any such Additional Amounts had such beneficiary the beneficiary, settlor, beneficial owner, partner or settlor or beneficial owner member been the Holder;
(g) direct holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inSecurity, or (y) paid or accrued to any Holder that is not a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A resident of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect United States to the Notes;
(j) when extent that, had such withholding or deduction is required to be made by reason Holder been a resident of the Holder United States and eligible (taking into account any applicable limitation on benefits article or similar provision) for the beneficial owner of the Note concurrently being a shareholder of the Company or benefit of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement double taxation treaty between the United States and another jurisdiction facilitating the implementation thereof applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security, such Holder would not have been entitled to such Additional Amounts, or (z) any Holder that is a resident of the United States but that is not eligible for the benefit of any double taxation treaty between the United States and the applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security (but only to the extent the amount of such deduction or any fiscal or regulatory legislation, rules or practices implementing withholding exceeds that which would have been required had such an intergovernmental agreement) (any such withholding or deduction, Holder of a “FATCA Withholding”Security been so eligible and made all relevant claims). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will successor to the Company, as the case may be, agrees to indemnify and hold harmless each Holder of a Security and upon written request reimburse each Holder for the amount of (i) any Taxes levied or imposed and paid by such Holder of a Security (other than Excluded Taxes) as a result of payments made with respect to such Security, (ii) any liability (including penalties, interest and expenses) arising therefrom with respect thereto, and (iii) any Taxes (other than Excluded Taxes) with respect to payment of Additional Amounts or any reimbursement pursuant to this sentence, in each case, to the extent not otherwise reimbursed by the payment of any Additional Amount and not excluded from the requirement to pay Additional Amounts, as described above. The Company or any successor to the Company, as the case may be, shall also (i) make such withholding or deduction to the extent required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishor any successor to the Company, as the case may be, shall furnish the Trustee within 60 30 days after the date the payment of any such Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to evidencing the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available successor to the Holders upon requestCompany, as the case may be, or other evidence of such payment reasonably satisfactory to the Trustee. It is understood, however, that the Trustee is under no obligation to request such certified copies of tax receipts evidencing the payment. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)those payments, the Company will shall deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and stating the amount so amounts that will be payable and will set setting forth such any other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in this Indenture or any Security there is mentioned, in any context, (a) the payment of principal (and the principal, premium, if any), (b) purchase prices or interest, or sinking fund or analogous payment, if any, in connection with a purchase respect of the Notes, (c) such Security or overdue principal or overdue interest or (d) any other amount payable on overdue sinking fund or with respect to any of the Notes or the Subsidiary Guaranteesanalogous payment, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section herein to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as thereof pursuant to the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic provisions of France or this Section and express mention thereof in any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which a Paying Agent those provisions hereof where such express mention is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto not made (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveif applicable). The obligations of the Company or (and any Guarantor described in successor entity to the Company pursuant to Section 8.1) under this Section 4.19 will 10.5 shall survive any termination, defeasance or satisfaction and discharge the termination of this Indenture and the payment of all amounts under or with respect to the Securities.
(b) Each Holder of a Security, by acceptance of such Security, agrees that, with reasonable promptness after receiving written notice from the Company to the effect that such H▇▇▇▇▇ is eligible for a refund in respect of Taxes actually paid by the Company pursuant to this Section 10.5, such Holder will sign and deliver, as reasonably directed by the Company, any transfer form provided to such Holder by the Company to enable such Holder to obtain a refund in respect of such Taxes; and if such Holder thereafter receives such refund in respect of such Taxes, such Holder will promptly pay such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority). If a Holder applies for a refund of such Taxes prior to a request by the Company to apply for such a refund, the Holder will, upon receipt of a request by the Company to apply for, or to turn over the proceeds of, any such refund, pay any such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority), promptly upon receipt of such refund. The Company shall pay all reasonable out-of-pocket expenses incurred by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction Holder in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which connection with obtaining such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinrefund.
Appears in 1 contract
Sources: Indenture (Carnival PLC)
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor Issuer under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of of, and without withholding or deduction for or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of the government of Canada or of any jurisdiction in which the Company province or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision territory thereof or by any authority or agency therein or any jurisdiction by or through which payment is made thereof having power to tax (each, a “Relevant Taxing Jurisdiction”"Canadian Taxes"), unless the Company or any Guarantor (or any Paying Agent) Issuer is required to withhold or deduct Canadian Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authoritygovernmental authority or agency. If the Company or any Guarantor (or any Paying Agent) Issuer is so required to withhold or deduct any amount for or on account of Canadian Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesNotes, the Company or any such Guarantor Issuer will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“"Additional Amounts”") as may be necessary so that the net amount received by such each Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such the Holder would have received if such Canadian Taxes had not been withheld or deducted; provided, provided that no Additional Amounts will be payable with respect to any Note:
a payment made to a Holder (aan "Excluded Holder") surrendered by (i) with which the Holder or Issuer does not deal at arm's length (within the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf meaning of the relevant Holder Income Tax Act (Canada)) at the time of making such payment, or the beneficial owner on or prior (ii) which is subject to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld Canadian Taxes by reason of the failure to comply its being connected with Canada or any province or territory thereof otherwise than by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchaseacquisition, holding or disposition disposi tion of any Note, Notes or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
thereunder. The Issuer will also (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant governmental authority in accordance with applicable law. The Company Issuer will furnishfurnish to the Holders (other than an Excluded Holder), within 60 30 days after the date the payment of any Canadian Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts evidencing such payment by the Issuer. The Issuer will indemnify and hold harmless each Holder (other than an Excluded Holder) and upon written request reimburse each such Holder for the amount of (i) any Canadian Taxes so levied or imposed and paid by such Holder as a result of payments made under or with respect to the extent received from the relevant tax authorities in the usual course Notes, (ii) any liability (including penalties, interest and expenses) arising therefrom or as generally providedwith respect thereto, and (iii) evidencing that any Canadian Taxes imposed with respect to any reimbursement under (i) or (ii), but excluding any such payment has been made by the Company or any Guarantor. The Trustee will make Canadian Taxes on such evidence available to the Holders upon request. Holder's net income.
(b) At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes Issuer will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)payment, the Company Issuer will deliver to each Paying Agent the Trustee an Officers’ ' Certificate stating the fact that such Additional Amounts will be payable, and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes (other than an Excluded Holder) on the payment date. Whenever in this Indenture there is mentioned, mentioned in any context, (a) context the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notesredemption price, (c) interest or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesNote, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture (Archivex LTD)
Additional Amounts. (a) All payments made by or on behalf of that the Company or any Guarantor Issuer makes under or with respect to the Notes and that any Guarantor makes under or the Subsidiary Guarantees with respect to any Note Guarantee will be made free and clear of and without withholding or deduction de- duction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) Taxes imposed or levied by or on behalf of Canada or any other jurisdiction (i) in which the Company Issuer or any Guarantor (including any successor entities) is then incorporated, organized or otherwise resident or doing busi- ness for tax purposes or (ii) from or through which the Issuer, any Guarantor or any of their paying agents makes any payment under or with respect to the Notes or any Note Guarantee, or by, in each case any political subdivision or taxing authority or agency thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless withholding or de- duction is then required by law. If the Company Issuer or any Guarantor (or any Paying Agent) other applicable withholding agent is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from in respect of any payment made under or with respect to the Notes or the Subsidiary Guaranteesany Note Guarantee, the Company Issuer or any such Guarantor Guarantor, as the case may be, will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so to ensure that the net amount received by such Holder (including each beneficial owner of the Additional Amounts) Notes after such withholding or deduction (including any withhold- ing or deduction attributable to the Additional Amounts) will be not be less than the amount such Holder the beneficial owner would have received if such Taxes had not been required to be withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;.
(b) if Neither the Issuer nor any taxGuarantor will, assessment however, pay Additional Amounts to a Holder or bene- ficial owner of Notes in respect or on account of:
(1) any Tax that would not have been imposed or levied by a Relevant Taxing Jurisdiction, but for the Holder’s or beneficial owner’s present or former connection with such Relevant Taxing Jurisdic- tion (other governmental charge than any connection arising solely from the acquisition, ownership or disposition of the Notes, the receipt of payments under or with respect to such Notes or a Note Guarantee, or the exercise or en- forcement of rights under or with respect to the Notes or any Note Guarantee);
(2) any Tax imposed by reason of a Holder, beneficial owner or any other recipient of a payment being a Person with whom the Issuer or any Guarantor does not deal at arm’s length for purposes of the Income Tax Act (Canada);
(3) any Tax that is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of Notes, following the Issuer’s written request addressed to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner (and made at a time that would enable the Holder or beneficial owner acting reasonably to comply with that re- quest, and in all events at least 30 calendar days before the relevant date on which payment under or with respect to the Notes or any Note Guarantee is due and payable) to comply with any certification or identifi- cation requirements, whether required or imposed by a statute, treaty, regulation or administrative practice of the Relevant a Rel- evant Taxing Jurisdiction Jurisdiction, as a precondition to exemption from all from, or part reduction in the rate of such taxdeduction or withholding of, assessment or governmental charge;
(c) held Taxes imposed by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, (including, without limitation, such a certifi- cation that the Holder or beneficial owner being is not resident in the Relevant Taxing Jurisdiction), but in each case only to the extent that the Holder or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment thereinbeneficial owner, as the case may be, is legally eligible to provide such certification;
(d4) on account of any estate, inheritance, gift, salesales, transfer, personal property transfer or other similar tax, assessment or other governmental chargeTaxes;
(e5) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) Tax imposed on or with respect to any payment made by the Issuer or on behalf of a Guarantor to the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner such Taxes would not have been entitled to any Additional Amounts imposed on such payment had such beneficiary the beneficiary, partner or settlor or other beneficial owner been directly held the Holder;Note; provided that there is no material cost or material commercial or legal restriction to transferring the Notes to the beneficiary, partner or other beneficial own- er and only to the extent such Tax is imposed more than 90 days after the Issuer notifies such Holder of the imposition of such Tax and requests the Holder to make such a transfer; or
(g6) such withholding or deduction any Tax that is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder presentation (where presentation is re- quired in order to receive payment) of the Notes for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficial owner of or Holder thereof would have been entitled to Additional Amounts had the Note concurrently being a shareholder of the Company or of Notes been presented for payment on any Guarantor; ordate during such 30 day period;
(kc) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any The Issuer and each Guarantor, will be paid net of any deduction or if they are the applicable withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantoragents, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also (i) make such withholding or deduction required by applicable law and (ii) remit the full amount deducted or withheld to the relevant rele- vant taxing authority in accordance with applicable law. The Company will furnish, within 60 .
(d) Within 45 days after receiving from a Holder a notice containing reasonable particulars of a Tax payable pursuant to Regulation 803 of the date Income Tax Act (Canada) by a Holder or beneficial owner of the payment Notes in respect of any Taxes is due pursuant to applicable law, amount payable under the Notes to the TrusteeHolder (other than by reason of a transfer of the Notes to a person resident in Canada with whom the transferor does not deal at arm’s length for the purposes of such Act), copies but no Additional Amount is paid in respect of tax receipts (such Tax, the Issuer will pay to the extent received Holder an amount equal to such Tax, provided such Holder or beneficial owner would have been entitled to receive Additional Amounts on account of such Tax but for the fact that it is payable otherwise than by deduction or withholding from the relevant tax authorities in the usual course payments made under or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available with respect to the Holders upon request. Notes.
(e) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or Issuer and any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment datethereafter), the Company Issuer will deliver to each Paying Agent the Trustee an Officers’ Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amount amounts so payable and will set forth such other information as (other than the identities of Holders and bene- ficial owners) necessary to enable such the Trustee or Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a GuarantorAgent, as the case may be, to pay such Additional Amounts to Holders and beneficial owners on the relevant payment date. The Issuer will provide the Trustee with documenta- tion reasonably satisfactory to the Trustee evidencing payment of such Additional Amounts.
(f) The Issuer or the relevant Guarantor will take reasonable efforts to furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing the payment by the Issuer or such Guar- antor, as the case may be, of any Taxes imposed or levied by a Relevant Taxing Jurisdiction. If, notwithstanding the reasonable efforts of the Issuer or such Guarantor to obtain such receipts, the same are not obtainable, then the Issuer or such Guarantor will provide such Holder with other evidence reasonably satisfactory to the Holder of such pay- ment by the Issuer or such Guarantor.
(g) The Issuer and each Guarantor will pay any present or future stamp, issue, registration, court or documentary taxes or any other doc- umentation, intangible, recording, filing, excise or property taxes, charges Taxes or other similar levies that arise Taxes imposed by any Relevant Taxing Jurisdiction in respect of any payment under or with respect to the United StatesNotes or any Note Guarantee, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue execu- tion, issue, delivery or registration of the Notes Notes, any Note Guarantee or on this Indenture or any other document or in- strument referred to thereunder and any such Taxes imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes, such Note Guarantee or this Indenture or any payments such other document or instrument fol- lowing the occurrence of any Event of Default with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto .
(limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (ah) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 preceding provisions will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, shall apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person person to the Issuer or any Guarantor is incorporatedorganized, engaged in incorporated or otherwise resident or doing business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person person (or its Paying Agent) makes any payment on under or with respect to the Notes or any Note Guaran- tee, and any department or in each case any political subdivision or taxing authority or agency thereof or therein. Whenever this Indenture refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to the Notes (including payments thereof made pursuant to any Note Guarantee), such reference includes the payment of Additional Amounts, if applicable. The Trustee shall have no duty to determine whether Additional Amounts are payable or to calculate or verify the Issuer’s calculations of any Additional Amounts.
Appears in 1 contract
Sources: Indenture
Additional Amounts. All payments (a) Payments made by the Issuer or on behalf of the Company or any Guarantor under or with respect pursuant to the Notes Securities or the Subsidiary Guarantees Securities Guarantee will be made free and clear of and without withholding or deduction for taxes unless required by law. In the event of (x) any change that becomes effective after the date hereof in the laws of the U.K. or Bermuda or of any political subdivision or taxing authority thereof or therein or any change in the interpretation or administration thereof or (y) a failure by the Issuer to list and maintain a listing of the Securities on a "recognized stock exchange" (within the meaning of Section 841 of the U.K. Income and Corporation Taxes Act 1988) prior to the first date upon which interest is required to be paid hereunder (a "Listing Failure"), the effect of which is to require the withholding or deduction by the Issuer or the Guarantor pursuant to the Securities or the Securities Guarantee, respectively, of any amount for taxes that would not have been required to be withheld or deducted absent such change or Listing Failure, as the case may be, the Issuer or the Guarantor will pay, to the extent it may then lawfully do so, such additional amounts ("Additional Amounts") as may be necessary in order that every net payment of the principal of and interest on the Securities, after deduction for withholding for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deductedprovided for in the Securities to be then due and payable; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable with shall not apply in respect to any Noteof:
(ai) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, withholding, assessment or other governmental charge is which would not have been imposed but for (x) the existence of any present or withheld by reason former connection between such holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of the failure to comply by the Holder ora power over, such holder, if differentsuch holder is an estate, trust, partnership or corporation) and the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder U.K. or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company Bermuda or any Guarantor in respect political subdivision or taxing authority thereof or any Subsidiary Guarantee, including, without limitation, such Holder holder (or beneficial owner such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment thereintherein or (y) the presentation of a Security or a Securities Guarantee (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later, except for Additional Amounts with respect to Taxes that would have been imposed had the holder presented the Security for payment within such 30-day period;
(dii) on account of any estate, inheritance, gift, sale, transfer, transfer or personal property tax;
(iii) any tax, assessment or other governmental charge that is withheld by reason of the failure to timely comply by the holder or the beneficial owner of the Security with a request in writing of the Issuer or the Guarantor (which request shall be furnished to the Trustee) (x) to provide information concerning the nationality, residence or identity of the holder or such beneficial owner or (y) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (x) or (y), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing or domicile jurisdiction as a precondition to exemption from or reduction of all or part of such tax, assessment or other governmental charge;; provided, however, that this clause (iii) shall not apply to limit the Issuer's or Guarantor's obligation to pay Additional Amounts if the completing and filing of the information described in subclause (x) or the declaration or other claim described in subclause (y) would be materially more onerous in form, in procedure or in substance of information disclosed, in comparison to the information reporting requirements imposed under U.S. tax law with respect to Forms 1001, W-8 and W-9; or
(eiv) except any tax, withholding, assessment or other governmental charge resulting from a Listing Failure with respect to any Security issued in the case form of a Definitive Security pursuant to the terms of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;Deposit Agreement and this Indenture; or
(fv) as a result of any combination of items (ai), (bii), (c), iii) and (div) or (e) or above; nor shall Additional Amounts be paid with respect to any payment made by or on behalf of the Company principal of, or any Guarantor in respect of interest on, any Note Security or Subsidiary Securities Guarantee to any Holder holder who is a fiduciary or partnership or other than not the sole beneficial owner of such payment Security or Securities Guarantee or is a fiduciary or partnership, but only to the extent that a beneficial owner, a beneficiary or a settlor with respect to a fiduciary or beneficial owner a member of the partnership would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable lawthe Additional Amount had the beneficial owner, to beneficiary, settlor or member of such partnership received directly its beneficial or distributive share of the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon requestpayment. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company Issuer or any the Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after payment, the 30th day prior to the date on which payment under or with respect to the Notes Issuer or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company Guarantor will deliver to each Paying Agent the Trustee an Officers’ Officer's Certificate stating the fact that such Additional Amounts will be payable, payable and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the NotesRedemption Price, (c) interest or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesSecurity, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(b) The Company Issuer or the Guarantor shall, upon written request of a GuarantorHolder and provided that reasonable supporting documentation is provided, as reimburse such Holder for the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement amount of any payments taxes levied or imposed by the U.K. or Bermuda and paid by such Holder as a result of any payment made under or with respect to the Notes, any Subsidiary Securities or under the Securities Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable but only to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction extent that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or the Guarantor would have been obligated to pay Additional Amounts in respect of such taxes if such taxes had been imposed by withholding or deduction from payments made under or with respect to the Securities or the Securities Guarantee.
(c) The Issuer shall pay any Guarantor is incorporatedstamp, engaged issue, registration, documentary, value added or other similar taxes and other duties (including interest and penalties) payable in business for tax purposes the U.K. or resident for tax purposes Bermuda and in the United States in respect of the creation, issue, offering, execution or enforcement of the Securities, the Securities Guarantee or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereindocumentation with respect thereto.
Appears in 1 contract
Sources: Indenture (RSL Communications LTD)
Additional Amounts. All payments made by or on behalf in respect of the Company or any Guarantee Payments (including interest accrued thereon, if any) by the Guarantor under or with respect to the Notes or the Subsidiary Guarantees will shall be made free and clear of of, and without withholding or deduction for or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company withholding or any Guarantor (or any Paying Agent) deduction of such Taxes is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the official interpretation or administration thereof by the relevant taxing authorityof applicable law. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of certain Taxes imposed or levied by or on behalf of a Relevant any Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesJurisdiction, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required paymentshall pay, as further Guarantee Payments, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received by such a Holder (including the Additional Amountsor a third party on its behalf) after such withholding or deduction will not be less than the amount such that the Holder would have received in respect of the Guarantee Payments (including interest accrued thereon, if any) in the absence of such Taxes had not been withheld withholding or deducteddeduction (“Additional Amounts”), provided except that no the obligation to pay such Additional Amounts will be payable with respect shall not apply to (i) any Note:
(a) surrendered by Taxes that would not have been imposed but for the Holder existence of any present or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the relevant Holder, if the relevant Holder is an estate, nominee, trust or corporation) and the Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Taxing Jurisdiction) other than by the mere ownership or holding of the Company Preferred Securities or the beneficial owner on Guarantee or prior to such due date, enforcement of rights under the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder Company Preferred Securities or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on Guarantee or under the receipt of payments in respect of the Company Preferred Securities or the Guarantee; (ii) any day during the applicable 30-day period;
(b) if any estate, inheritance, gift, sales, transfer, personal property tax or similar tax, assessment or governmental charge; (iii) any Taxes payable otherwise than by withholding from payments of dividends and other governmental charge amounts due on the Company Preferred Securities or the Guarantee; (iv) any Taxes that would not have been imposed if the Holder had made a declaration of nonresidence or any other claim or filing for exemption to which it is imposed entitled (provided that (a) a declaration of non-residence or withheld other claim or filing for exemption is required by reason the applicable law of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all the requirement to deduct or part withhold such Taxes and (b) at least 30 days prior to the first payment date with respect to which such declaration of such tax, assessment non-residence or governmental charge;
(c) held by other claim or on behalf of a Holder or filing for exemption is required under the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf applicable law of the Company Taxing Jurisdiction, the Holder at that time has been notified by the Company, the Guarantor or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been other person through whom payment may be made that a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account declaration of any estate, inheritance, gift, sale, transfer, personal property non-residence or other similar tax, assessment claim or other governmental charge;
filing for exemption is required to be made); (ev) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) Taxes imposed as a result of any combination the presentation of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of a certificate for the Company or any Guarantor in respect of any Note or Subsidiary Guarantee Preferred Security for payment (where presentation is required) more than 30 days after the relevant payment is first made available to any the Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment (except to the extent that a beneficiary the Holder would have been entitled to receive Additional Amounts had the relevant certificate been presented on the last day of such 30-day period); or settlor or (vi) any combination of items (i) through (v) above. Additional Amounts will also not be payable where, had the beneficial owner of the Company Preferred Securities been the holder, it would not have been entitled to any payment of Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
items (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(jvi) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) inclusive above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also (i) make such any required withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority Taxing Jurisdiction in accordance with applicable law. The Company Guarantor will furnish, within 60 days after the date use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes is due pursuant so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and will provide such certified copy to applicable lawHolders, upon request. The Guarantor will attach to each certified copy a certificate stating: (a) that the Trustee, copies amount of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made withholding Taxes evidenced by the Company or any Guarantorcertified copy was paid in connection with payments in respect of the Guarantee, and (b) the amount of such withholding Taxes paid per relevant Preferred Security. The Trustee Copies of this documentation will make such evidence be available to at the Holders office of the Paying Agent during regular business hours for inspection upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment Dividend Payment Date (unless such an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payablethat date, in which case it will be paid promptly thereafter and thereafter) if there has been a change with respect to the matters set forth in any case before the relevant payment date)below-mentioned Officer’s Certificate, the Company will deliver Guarantor shall furnish to each the Paying Agent (with a copy to the Registrar) an Officers’ Officer’s Certificate stating instructing the Paying Agent as to whether any Guarantee Payment shall be made to Holders without withholding or deduction for or on account of any Taxes. If any such withholding or deduction shall be required, then such Officer’s Certificate shall specify by country the amount required to be withheld or deducted on such payments to such Holders and shall certify the fact that such Additional Amounts will shall be payable, payable if a Guarantee Payment is due and the amount amounts so payable to each Holder and will set forth such any other information as necessary to enable such the Paying Agent to pay such the Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentionedDividend Payment Date, and the Guarantor shall pay to the Paying Agent, in any contextcase a Guarantee Payment is due, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in required to be paid by this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereofSection 2.09. The Company or a Guarantor, as the case may be, Guarantor will pay any present or future stamp, court or documentary taxes taxes, or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue execution, delivery or registration of the Notes Company Preferred Securities or on any other document or instrument referred to in the enforcement Company Preferred Securities (other than a transfer of the Company Preferred Securities), or the receipt of any payments with respect to the NotesGuarantees, excluding any Subsidiary Guaranteetaxes, the Indenture charges or similar levies imposed by any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in jurisdiction that is not a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of has imposed or levied taxes resulting in the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, requirement to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinpay Additional Amounts.
Appears in 1 contract
Sources: Subordinated Guarantee Agreement (Mitsubishi Ufj Financial Group Inc)
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (hereinafter “Taxes”) imposed unless the withholding or levied by or on behalf deduction of any jurisdiction in which the Company or any Guarantor (including any successor entities) such Taxes is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction required by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authoritylaw. If the Company any deduction or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for withholding for, or on account of of, any Taxes imposed or levied by or on behalf of the government of the Republic of ▇▇▇▇▇▇▇▇ Islands or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Company (including any successor entity) is organized or is otherwise resident for tax purposes, or any jurisdiction from or through which payment is made (including, without limitation, the jurisdiction of each paying agent) (each a Relevant Taxing Jurisdiction “Specified Tax Jurisdiction”), will at any time be required to be made from any payment payments made under or with respect to the Notes or the Subsidiary Guarantees, Notes. the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received in respect of such payments by such a Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable with respect to any Notedoes not apply to:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has any Taxes that would not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having have been so received, notice to that effect shall have been given to imposed but for the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents of the Notes having any present or other evidence concerning the nationality, residence, identity or former connection with the Relevant Taxing Specified Tax Jurisdiction (other than the mere acquisition, ownership, holding, enforcement or receipt of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice payment in respect of the Relevant Taxing Jurisdiction as a precondition to exemption from all Notes);
(2) any estate, inheritance, gift, sales, excise, transfer, personal property tax or part of such similar tax, assessment or governmental charge;
(c3) held any Taxes payable other than by deduction or on behalf withholding from payments under, or with respect to, the Notes;
(4) any Taxes imposed as a result of a the failure of the Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Notes to complete, execute and deliver to the Company any form or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, document to the extent applicable to such Holder or beneficial owner being that may be required by law or having been by reason of administration of such law and which is reasonably requested in writing to be delivered to the Company in order to enable the Company to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a citizen lesser amount, which form or resident thereof or being or having been present or engaged in document will be delivered within 60 days of a trade or business therein or having had a permanent establishment thereinwritten request therefor by the Company;
(d5) any Taxes that would not have been so imposed but for the beneficiary of the payment having presented a Note for payment (in cases in which presentation is required) more than 30 days after the date on account which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental chargesuch 30-day period);
(e6) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) Taxes imposed on or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any the Holder who if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment would not have been entitled to any Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holderactual Holder of such Note;
(g7) such withholding any Taxes that are required to be deducted or deduction is imposed or levied withheld on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg European Council Directive 2003/48/EC or any law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inimplementing, or (y) paid or accrued introduced in order to a person established or domiciled inconform to, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantordirective; or
(k) Any 8) any combination of items (a1) through (j7) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of .
(b) If the Company or by any Guarantor, becomes aware that it will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required obligated to pay any Additional Amounts in with respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payableNotes, if the Company or any Guarantor becomes obligated will deliver to pay Additional Amounts with respect the Trustee and Paying Agent at least 30 days prior to such the date of that payment (unless such the obligation to pay Additional Amounts arises after the 30th day prior to the date on which that payment under or with respect to the Notes or the Subsidiary Guarantees is due and payabledate, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each notify the Trustee and Paying Agent promptly thereafter but in no event later than two Business Days prior to the date of payment) an Officers’ Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amount so payable and will payable. The Officer’s Certificate shall also set forth such any other information as necessary to enable such the Paying Agent to pay such Additional Amounts to Holders on the relevant payment date. The Trustee and Paying Agent will be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Company will provide the Trustee and Paying Agent with documentation evidencing the payment of Additional Amounts.
(c) The Company will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant governmental authority on a timely basis in accordance with applicable law. As soon as practicable, the Company will provide the Trustee and Paying Agent with an official receipt or, if official receipts are not obtainable, other documentation evidencing the payment of the Taxes so withheld or deducted. Upon request, copies of those receipts or other documentation, as the case may be, will be made available by the Trustee and Paying Agent to the Holders of the Notes on the payment date. Notes.
(d) Whenever in the Indenture or this First Supplemental Indenture there is mentionedreferenced, in any context, (a) the payment of amounts based upon the principal (and premium, if any), (b) purchase prices in connection with a purchase amount of the NotesNotes or of principal, (c) interest or (d) any other amount payable on under, or with respect to any of to, the Notes or the Subsidiary GuaranteesNotes, such mention is reference will be deemed to include mention of the payment of Additional Amounts provided for in as described under this section heading to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(e) The Company will indemnify a Holder, within 10 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder to a governmental authority of a Specified Tax Jurisdiction, on or with respect to any payment by on or account of any obligation of the Company to withhold or deduct an amount on account of Taxes for which the Company would have been obliged to pay Additional Amounts hereunder and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant governmental authority. A certificate as to the amount of such payment or liability delivered to the Company by a Guarantor, as the case may be, Holder will be conclusive absent manifest error.
(f) The Company will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Specified Tax Jurisdiction from the initial issue execution, delivery, enforcement or registration of the Notes Notes, the Indenture or on any other document or instrument in relation thereof, or the enforcement receipt of any payments with respect to the Notes, any Subsidiary Guarantee, and the Indenture or any other documents related thereto (limited, in case of Taxes attributable to Company will indemnify the receipt of payments thereto, to Holders for any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer taxes paid by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinHolders.
Appears in 1 contract
Additional Amounts. All With respect to any payments made by or on the behalf of the Company Issuer or any a Guarantor under or with in respect to of the Notes or any Guarantee of the Subsidiary Guarantees Notes, as applicable, the Issuer or such Guarantor will be made free make all payments of principal of, premium, if any, and clear interest on (whether on scheduled payment dates or upon acceleration) and the Redemption Price, if any, payable in respect of and any Note without deduction or withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (“Taxes”) imposed imposed, levied, collected, withheld or levied assessed by or on behalf of any jurisdiction in which the Company Issuer or any such Guarantor (including any successor entities) is then organized incorporated or organized, engaged in business for tax purposes or otherwise resident for tax purposes purposes, or any political subdivision thereof or taxing authority therein or and any jurisdiction by or through which any payment is made on behalf of the Issuer or any Guarantor (including the jurisdiction of any Paying Agent) (each, a “Relevant Taxing Jurisdiction”), upon or as a result of such payments, unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the official interpretation or administration thereof by thereof. To the relevant taxing authority. If the Company extent that any such Taxes are so levied or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guaranteesimposed, the Company Issuer or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount received by such each Holder (including the Additional Amounts) ), after withholding for or on account of such withholding Taxes imposed upon or deduction as a result of such payment, will not be less than the amount such Holder that would have been received if had such Taxes had taxes not been withheld imposed or deducted, provided levied; except that no such Additional Amounts will shall be payable with respect to any a payment made to a Holder or beneficial owner of a Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled such Taxes are imposed pursuant to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason Sections 1471 through 1474 of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), any current or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any future regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or , any fiscal or regulatory legislation, rules or practices implementing such adopted pursuant to an intergovernmental agreementagreement between a non-U.S. jurisdiction and the United States, with respect to the forgoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code (any “FATCA”) and/or the UK’s International Tax Compliance Regulations 2015; or
(2) to the extent that such withholding Taxes would not have been so imposed, levied or deductionassessed but for the existence of some connection between such Holder or beneficial owner of such Note and the Taxing Jurisdiction imposing such Taxes other than the mere holding or enforcement of such Note or receipt of payments thereunder; or
(3) to the extent that such Taxes would not have been so imposed, levied or assessed but for the failure of the Holders or beneficial owners of such Note to comply with a “FATCA Withholding”). Neither reasonable written request by the Company nor Issuer (or its agent) to make a valid declaration of non-residence or any other person, including any Guarantor, will be required claim or filing for exemption to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld which it is entitled (but only to the relevant authority in accordance with applicable law. The Company will furnish, within 60 extent it is legally entitled to do so); or
(4) that presents such Note for payment (where presentation is required) more than 30 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that on which such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is became due and payable, if the Company payable or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment of the Note is duly provided for and notice is given to Holders, whichever occurs later, except to the extent that the Holder or beneficial owner of such Note would have been entitled to such Additional Amounts on presenting such Note on any date during such 30-day period; or
(5) in the case of a payment made by or on behalf of the Issuer or any Guarantor organized under the laws of the United States, any state thereof or the District of Columbia, with respect to any United States withholding taxes, so long as such withholding taxes are summarized in the prospectus supplement, dated September 3, 2019, in the discussion under the caption “Certain Material Income Tax Consequences—United States Taxation” or the Issuer or such Guarantor (pursuant to Section 1.06 of the Original Indenture) provides reasonable notice regarding potential United States withholding taxes and requests Holders and beneficial owners to provide applicable U.S. tax forms; or
(6) any combination of the above. As used herein and for purposes of the Indenture and the Notes, any reference to the principal of and interest on the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premiumRedemption Price, if any), shall be deemed to include a reference to any related Additional Amounts payable in respect of such amounts. The Issuer will also pay any stamp, registration, excise or property taxes and any other similar levies (bincluding any interest and penalties related thereto) purchase prices in connection with a purchase imposed by any Taxing Jurisdiction on the execution, delivery, registration or enforcement of any of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable document or instrument referred to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 1 contract
Sources: Fourth Supplemental Indenture (Willis Towers Watson PLC)
Additional Amounts. All payments made by or on behalf the Issuer in respect of this Note and the Indenture and by the Guarantor in respect of the Company or any Guarantor under or with respect to Guarantee and the Notes or the Subsidiary Guarantees Indenture will be made free and clear of and without deduction or withholding for or on account of any present or future taxes, duties, assessments, fees or other governmental charges ("Taxes") imposed or levied by or on behalf of Luxembourg, the Russian Federation, any jurisdiction from or through which a payment is made, or any political subdivision or taxing authority thereof or therein (each, a "Taxing Jurisdiction"), unless such withholding or deduction is required by law. If the Issuer is required to make any withholding or deduction for or on account of any present Taxes from any payment made under or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed to this Note, or levied by or on behalf of any jurisdiction in which if the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold make any withholding or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount deduction for or on account of any Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesGuarantee, the Company or any such Guarantor Issuer (or, in respect of the Guarantee, the Guarantor) will pay as additional interest to each the Holder of the Notes that are outstanding on the date of the required payment, this Note such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“"Additional Amounts”") as may be necessary so in order that every net payment made by the net amount received Issuer on this Note or by such Holder (including the Additional Amounts) Guarantor on the Guarantee after such deduction or withholding for or deduction on account of any Taxes will not be less than the amount such Holder would have received if such Taxes had then due and payable on this Note or the Guarantee. The foregoing obligation to pay Additional Amounts, however, will not been withheld or deducted, provided that no Additional Amounts will be payable with respect apply to any (i) Taxes that would not have been imposed but for the existence of any present or former connection between the Holder of this Note and any Taxing Jurisdiction other than the mere receipt of such payment or the ownership or holding of this Note:
; (aii) surrendered Taxes that would not have been imposed but for the presentation by the Holder or the beneficial owner thereof of this Note for payment of principal on a date more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on whichwhich payment thereof is duly provided for, the full amount having been so received, notice whichever occurs later; (iii) Taxes required to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed be deducted or withheld by reason any Paying Agent from a payment on this Note or the Guarantee, if such payment can be made without deduction or withholding by any other Paying Agent; (iv) Taxes that would not have been imposed but for the failure of the failure Holder to comply by with the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a Issuer's written request addressed to such the Holder or beneficial owner at least 60 days prior to the relevant payment to provide informationinformation with respect to any reasonable certification, documents documentation, information or other evidence reporting requirement concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of the Holder of such Holder Note; (v) Taxes imposed on a payment to an individual that are required to be made pursuant to European Union Directive 2003/48/EC or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice any other European Union Directive implementing the conclusions of the Relevant Taxing Jurisdiction as a precondition to exemption from all ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income or part of such tax, assessment any law implementing or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Notecomplying with, or the receipt of payments made by or on behalf of the Company or any Guarantor introduced in respect thereof or any Subsidiary Guarantee, including, without limitationorder to conform to, such Holder Directive; or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(dvi) on account of any estate, inheritance, gift, sale, transfer, personal property sale or other similar excise tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture (Mobile Telesystems Ojsc)
Additional Amounts. All payments made by (a) If the Lender shall have determined that after the Closing Date, the adoption of any applicable law, rule or on behalf of the Company regulation regarding capital adequacy, or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future taxchange therein, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged by law with the relevant taxing interpretation or administration thereof, or compliance by the Lender or its parent corporation with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority. If , central bank, or comparable agency, in each case made subsequent to the Company Closing Date, has or any Guarantor would have the effect of reducing by an amount reasonably deemed by the Lender to be material to the rate of return on the Lender's or its parent corporation's capital or assets as a consequence of the Lender's commitments or obligations hereunder to a level below that which the Lender or its parent corporation could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration the Lender's or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or its parent corporation's policies with respect to capital adequacy), then from time to time, within 15 days after demand by the Notes or Lender (with a copy to the Subsidiary GuaranteesLender), the Company or any such Guarantor will Borrower shall pay to each Holder of the Notes that are outstanding on the date of the required payment, Lender such additional amount or amounts (as will compensate the Lender or its parent corporation for such reduction. The Lender, upon determining in the form of (x) in the case of PIK Interest, good faith that any additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts amounts will be payable with respect pursuant to any Note:
(a) surrendered by this Section 3.01(a), will give prompt written notice thereof to the Holder or Borrower, which notice shall set forth, in reasonable detail, the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf basis of the relevant Holder calculation of such additional amounts, which basis must be reasonable, although the failure to give any such notice shall not release or diminish any of the beneficial owner on or prior Borrower's obligations to pay additional amounts pursuant to this Section 3.01(a) upon the subsequent receipt of such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;notice.
(b) if Notwithstanding anything in this Agreement to the contrary, (i) the Lender shall not be entitled to compensation or payment or reimbursement of other amounts under Section 3.01(a) or Section 3.03 for any tax, assessment amounts incurred or accruing more than 90 days prior to the giving of notice to the Borrower of additional costs or other governmental charge is imposed or withheld by reason amounts of the failure nature described in such Sections, and (ii) the Lender shall not demand compensation for any reduction referred to comply by in Section 3.01(a) or payment or reimbursement of other amounts under Section 3.03 if it shall not at the Holder or, if different, time be the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder general policy or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition Lender to exemption from all demand such compensation, payment or part reimbursement in similar circumstances under comparable provisions of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereincredit agreements.
Appears in 1 contract
Additional Amounts. All (a) The Company and any Guarantor are required to make all payments made by under this Indenture or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of the government of the country in which the Company or Guarantor and any successor thereof is organized or incorporated or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or otherwise resident for tax purposes or the jurisdiction of any political subdivision thereof or therein or any jurisdiction by or through which payment is made Paying Agent (each, a “Relevant Taxing Jurisdiction”), unless the Company or any a Guarantor (or any Paying Agent) Agent is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authority. thereof.
(b) If the Company Company, or any Guarantor (Guarantor, or any a Paying Agent) Agent is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesNotes, the Company or any such Guarantor will be required to pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) with respect to the Notes as may be necessary so that the net amount received by such any Holder or beneficial owner (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder or beneficial owner would have received if such Taxes had not been withheld or deducted; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable with respect to any Notedoes not apply to:
(ai) surrendered by any Taxes that would not have been so imposed but for the Holder existence of any present or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of former connection between the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with and the Relevant Taxing Jurisdiction (including a connection between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of such Holder power over, the relevant holder or beneficial owner, if the relevant holder or beneficial owner which is required an estate, nominee, trust, partnership or imposed by a statutecorporation, treaty, regulation or administrative practice of and the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(cJurisdiction) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitationlimiting the generality of the foregoing, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, partner, member, shareholder, or possessor) of the Notes being or having been a citizen citizen, resident, or resident national thereof or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(dii) on account of any estate, inheritance, gift, salesales, transfer, transfer or personal property tax or other similar tax, assessment or other governmental chargeTaxes;
(eiii) except any withholding or deduction in the case respect of the winding up Notes (a) presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant note to any other paying agent, or (b) where the payment could have been made without such deduction or withholding if the beneficiary of the Company or any Guarantor, any Note surrendered payment had presented the notes for payment in within 30 days after the Republic date on which such payment on the notes became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder or beneficial owner would have been entitled to Additional Amounts had the notes been presented on the last day of Francesuch 30-day period);
(fiv) as a result of any combination of (a), (b), (c), (d) or (e) or Taxes imposed with respect to any payment made of principal (or premium, if any) or interest on the Notes by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder or beneficial owner who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to any the Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holderactual Holder or beneficial owner of such Notes;
(gv) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of any Taxes that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise other than by deduction or withholding or deduction from a payment payments made under or with respect to the Notes;
(jvi) when any Taxes that would not have been imposed but for the failure of the Holder and/or beneficial owner (a) to comply with the Company’s or the Paying Agent’s request in writing at least 30 days before any withholding for such Taxes to the Holder to provide certification, documentation, information or other evidence concerning the nationality, residence, entitlement to treaty benefits, identity, direct or indirect ownership of or investment in the Notes, or connection with the Relevant Taxing Jurisdiction of the Holder and/or beneficial owner of such Notes, or (b) to make any valid or timely declaration or similar claim or satisfy any other reporting requirement or to provide any information relating to such matters, whether required or imposed by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of withholding or deduction is of, Taxes imposed by the Relevant Taxing Jurisdiction;
(vii) any Taxes that are required to be made by reason deducted or withheld from any payment under or in respect of the Notes as a consequence of the Holder or beneficial owner of Notes or the recipient of the interest payable on the Notes not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with the Company or any Guarantor at the time of making any such payment;
(viii) any Taxes that are required to be deducted or withheld from any payment under or in respect of the Notes as a consequence of the Holder or beneficial owner of the Note concurrently Notes being at any time a shareholder ‘‘specified non-resident shareholder’’ (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Company or at any time not dealing at arm’s length (within the meaning of any Guarantor; or
the Income Tax Act (kCanada)) Any combination with a “specified shareholder” (within the meaning of items subsection 18(5) of the Income Tax Act (aCanada)) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) as a consequence of the U.S. Internal Revenue Code of 1986, as amended payment being deemed to be a dividend under the Income Tax Act (the “Code”Canada), or otherwise imposed pursuant to Sections ;
(ix) any Taxes payable under section 1471 through 1474 of the Code (or any successor or amended versions thereof), any regulations thereunder or other official interpretations thereofguidance thereunder, or any agreement (including any intergovernmental agreement or any law implementing such governmental agreement) entered into in connection therewith (“FATCA”);
(x) any Taxes or penalties arising from the Holder’s or beneficial owner’s failure to comply with the Holder’s or beneficial owner’s obligations imposed under Part XVIII of the Income Tax Act (Canada), the Canada-United States Enhanced Tax Information Exchange Agreement Implementation Act (Canada) or the similar provisions of legislation of any other jurisdiction that has entered into an intergovernmental agreement between with the United States and another jurisdiction facilitating of America to provide for the implementation thereof of FATCA based reporting; or
(xi) any combination of, or any fiscal Taxes arising from a combination of the factors described in, (i) to (x) above.
(c) At least 30 calendar days prior to each date on which any payment under or regulatory legislation, rules or practices implementing with respect to the Notes is due and payable (unless such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required obligation to pay any Additional Amounts arises shortly before or after the 30th day prior to such date, in respect of FATCA Withholding. The which case it shall be promptly thereafter), if the Company or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company will deliver to the U.S. Trustee and paying agent for the affected Notes an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the U.S. Trustee or paying agent, as the case may be, to pay such Additional Amounts to Holders and beneficial owners of such Notes on the payment date. Each such Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters.
(d) The Company or the applicable Guarantor will also (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishprovide the U.S. Trustee with official receipts or, within 60 days after if notwithstanding the date efforts of the Company official receipts are not obtainable, other documentation reasonably satisfactory to the U.S. Trustee, evidencing the payment of any Taxes is due pursuant Tax so deducted or withheld for each Relevant Taxing Jurisdiction imposing such Taxes. The Company will attach to applicable law, to each official receipt or other documentation a certificate stating (x) that the Trustee, copies amount of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made Tax evidenced by the Company official receipt or any Guarantor. The Trustee will make other documentation was paid in connection with payments in respect of the principal amount of such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due then outstanding and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and y) the amount so payable and will set forth of such other information as necessary to enable Tax paid per $1,000 of principal amount of such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Notes.
(e) Whenever reference is made in this Indenture there is mentionedIndenture, in any context, to (ai) the payment of principal (and premium, if any)principal, (bii) redemption prices or purchase prices in connection with a redemption or purchase of the Notes, (ciii) interest or (div) any other amount payable on or with respect to any of the Notes or the Subsidiary GuaranteesNotes, such mention is reference will be deemed to include mention of the payment of Additional Amounts provided for in as described under this section heading to the extent, extent that, in such context, Additional Amounts are, were are or would be payable in respect thereof. .
(f) The Company or a Guarantor, as the case may be, will pay any present or future stamp, court court, documentary or documentary taxes or any other excise or property similar taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue execution, delivery or registration of the Notes of, or on the enforcement of any payments with respect to the Notesrights under, any Subsidiary Guarantee, the this Indenture or any other documents related thereto document.
(limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (ag) through (k) above). The obligations of the Company or any Guarantor described in under this Section 4.19 2.13 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer Company or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department organized or any political subdivision or taxing authority or agency thereof or therein.
(h) The Company and the Guarantors shall indemnify and hold harmless the Trustees for the amount of any Taxes in respect of which the Company, or any Guarantor, is required to pay Additional Amounts pursuant to Section 2.13(b) that are levied or imposed and paid by the Trustees as a result of payments made under or with respect to the Notes or any Subsidiary Guarantee, including any reimbursements under this clause 2.13(h).
Appears in 1 contract
Sources: Indenture (Open Text Corp)
Additional Amounts. All payments made (a) The Company hereby agrees that any amounts to be paid by or on behalf of the Company or any Guarantor under or with respect to the Notes each Security shall be paid without deduction or the Subsidiary Guarantees will be made free withholding for any and clear of all present and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levy, impost, assessment imposts or other governmental charge (including without limitationcharges whatsoever imposed, penaltiesassessed, interest and any other liability with respect thereto) (“Taxes”) imposed levied or levied collected by or on behalf for the account of any jurisdiction in which (i)(x) the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes Republic of Panama or any political subdivision or taxing authority thereof or therein (y) the jurisdiction of incorporation (other than the United States or any political subdivision or taxing authority thereof) of a successor entity to the Company pursuant to Section 8.1, to the extent that such taxes, levies, imposts or other governmental charges first become applicable as a result of such successor entity becoming the obligor on the Securities, or (ii) any other jurisdiction by (other than the United States or any political subdivision or taxing authority thereof) from or through which payment any amount is made paid by the Company hereunder or where it is resident or maintains a place of business or permanent establishment (each, each jurisdiction described in Clauses (i) and (ii) above is referred to herein as a “Relevant Taxing Jurisdiction” and such taxes, levies, imposts or other governmental charges are referred to as “Taxes”), unless the Company withholding or deduction of such Tax is compelled by laws of the Republic of Panama or any Guarantor other applicable Taxing Jurisdiction. If any deduction or withholding of any Taxes (other than Excluded Taxes, as defined below) is ever required by the Republic of Panama or any other Taxing Jurisdiction, the Company shall (subject to compliance by the Holder or beneficial owner of each Security with any applicable administrative requirements) pay such additional amounts (“Additional Amounts”) required to make the net amounts paid to each Holder of such Security or the Trustee pursuant to the terms of this Indenture or the Securities, after such deduction or withholding, equal to the amounts of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, to which such Holder or the Trustee is entitled. However, the Company shall not be required to pay Additional Amounts in respect of the following Taxes (“Excluded Taxes”):
(1) any present or future Taxes imposed, assessed, levied or collected as a result of the Holder or beneficial owner of a Security (i) being organized under the laws of, or otherwise being or having been a domiciliary, national or resident of, (ii) being engaged or having been engaged in a trade or business in, (iii) having or having had its principal office located in, (iv) maintaining or having maintained a permanent establishment in, (v) being or having been physically present in, or (vi) otherwise having or having had some connection (other than the connection arising solely from holding or owning such Security, or collecting principal and interest, if any, on, or the enforcement of, such Security) with the Republic of Panama or any other applicable Taxing Jurisdiction;
(2) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was presented more than thirty days after the date relevant payment is first made available for payment to the Holder or beneficial owner;
(3) any present or future Taxes imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any Paying Agentrelated law or administrative practices or procedures) is required implementing the foregoing or any agreements entered into pursuant to withhold or deduct Taxes under the laws current Section 1471(b)(1) of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor Code (or any Paying Agentamended or successor version described above);
(4) is so required to withhold any present or deduct future Taxes payable other than by deduction or withholding from payments under, or with respect to, any amount for Security ;
(5) any present or on account of future Taxes imposed in connection with a Security presented for payment (where presentation is permitted or levied required for payment) by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of the Security to provide informationthe extent such Taxes could have been avoided by presenting the relevant Security to, documents or otherwise accepting payment from, another Paying Agent;
(6) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the failure to make any certification, identification or other evidence report concerning the nationality, residence, identity or connection with the Relevant Republic of Panama or any other applicable Taxing Jurisdiction of such the Holder or beneficial owner which is required of such Security or imposed by claim for relief or exemption, if making such a statutecertification, treatyidentification, regulation other report or administrative practice claim is, under the laws, rules or regulations of the Relevant Taxing Jurisdiction as any such jurisdiction, a precondition condition to relief or exemption from all or part of such tax, assessment or governmental charge;Taxes;
(c7) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment Tax or other governmental charge;duty; or
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of 8) any combination of Clauses (a)1) through (7) above; provided further, (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor that no such Additional Amounts shall be payable in respect of any Note or Subsidiary Guarantee to Security held by (x) any Holder who or beneficial owner that is a fiduciary or partnership or other than not the sole beneficial owner of such payment Security, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner owner, partner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to any such Additional Amounts had such beneficiary the beneficiary, settlor, beneficial owner, partner or settlor or beneficial owner member been the Holder;
(g) direct holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inSecurity, or (y) paid or accrued to any Holder that is not a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A resident of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect United States to the Notes;
(j) when extent that, had such withholding or deduction is required to be made by reason Holder been a resident of the Holder United States and eligible (taking into account any applicable limitation on benefits article or similar provision) for the beneficial owner of the Note concurrently being a shareholder of the Company or benefit of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement double taxation treaty between the United States and another jurisdiction facilitating the implementation thereof applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security, such Holder would not have been entitled to such Additional Amounts, or (z) any Holder that is a resident of the United States but that is not eligible for the benefit of any double taxation treaty between the United States and the applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security (but only to the extent the amount of such deduction or any fiscal or regulatory legislation, rules or practices implementing withholding exceeds that which would have been required had such an intergovernmental agreement) (any such withholding or deduction, Holder of a “FATCA Withholding”Security been so eligible and made all relevant claims). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will successor to the Company, as the case may be, agrees to indemnify and hold harmless each Holder of a Security and upon written request reimburse each Holder for the amount of (i) any Taxes levied or imposed and paid by such Holder of a Security (other than Excluded Taxes) as a result of payments made with respect to such Security, (ii) any liability (including penalties, interest and expenses) arising therefrom with respect thereto, and (iii) any Taxes (other than Excluded Taxes) with respect to payment of Additional Amounts or any reimbursement pursuant to this sentence, in each case, to the extent not otherwise reimbursed by the payment of any Additional Amount and not excluded from the requirement to pay Additional Amounts, as described above. The Company or any successor to the Company, as the case may be, shall also (i) make such withholding or deduction to the extent required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishor any successor to the Company, as the case may be, shall furnish the Trustee within 60 30 days after the date the payment of any such Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to evidencing the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available successor to the Holders upon requestCompany, as the case may be, or other evidence of such payment reasonably satisfactory to the Trustee. It is understood, however, that the Trustee is under no obligation to request such certified copies of tax receipts evidencing the payment. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)those payments, the Company will shall deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and stating the amount so amounts that will be payable and will set setting forth such any other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in this Indenture or any Security there is mentioned, in any context, (a) the payment of principal (and the principal, premium, if any), (b) purchase prices or interest, or sinking fund or analogous payment, if any, in connection with a purchase respect of the Notes, (c) such Security or overdue principal or overdue interest or (d) any other amount payable on overdue sinking fund or with respect to any of the Notes or the Subsidiary Guaranteesanalogous payment, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section herein to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as thereof pursuant to the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic provisions of France or this Section and express mention thereof in any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which a Paying Agent those provisions hereof where such express mention is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto not made (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveif applicable). The obligations of the Company or (and any Guarantor described in successor entity to the Company pursuant to Section 8.1) under this Section 4.19 will 10.5 shall survive any termination, defeasance or satisfaction and discharge the termination of this Indenture and the payment of all amounts under or with respect to the Securities.
(b) Each Holder of a Security, by acceptance of such Security, agrees that, with reasonable promptness after receiving written notice from the Company to the effect that such ▇▇▇▇▇▇ is eligible for a refund in respect of Taxes actually paid by the Company pursuant to this Section 10.5, such Holder will sign and deliver, as reasonably directed by the Company, any transfer form provided to such Holder by the Company to enable such Holder to obtain a refund in respect of such Taxes; and if such Holder thereafter receives such refund in respect of such Taxes, such Holder will promptly pay such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority). If a Holder applies for a refund of such Taxes prior to a request by the Company to apply for such a refund, the Holder will, upon receipt of a request by the Company to apply for, or to turn over the proceeds of, any such refund, pay any such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority), promptly upon receipt of such refund. The Company shall pay all reasonable out-of- pocket expenses incurred by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction Holder in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which connection with obtaining such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinrefund.
Appears in 1 contract
Sources: Indenture (Carnival PLC)
Additional Amounts. (1) All payments made by or on behalf of that the Company or any Guarantor Issuer makes under or with respect to the Notes or that the Subsidiary Guarantors make under or with respect to the Guarantees will shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including including, without limitation, penalties, interest and any other liability with respect similar liabilities related thereto) of whatever nature (“collectively, "Taxes”" or "Tax") imposed or levied by or on behalf of the federal government of Canada or by or within any province or political subdivision thereof or within any other jurisdiction in which the Company Issuer, the Subsidiary Guarantors or any Guarantor (including any successor entities) is then organized Surviving Entity are organised or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by from or through which payment is made (each, a “"Relevant Taxing Jurisdiction”"), unless the Company Issuer or any Guarantor (or any Paying Agent) is the Subsidiary Guarantors, as the case may be, are required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authorityof law. If the Company Issuer or any Guarantor (or any Paying Agent) is so the Subsidiary Guarantors are required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes Notes, the Issuer or the Subsidiary GuaranteesGuarantors, as the Company or any such Guarantor will case may be, shall pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“"Additional Amounts”) as "), to the extent they may be necessary lawfully do so, so that the net amount received by such each Holder (including the Additional Amounts) after such withholding or deduction will shall not be less than the amount such the Holder would have received if such Taxes had not been withheld or deducted..
(2) The Issuer or the Subsidiary Guarantors shall not, provided that no however, pay Additional Amounts will be payable with respect to any Notea Holder or beneficial owner of Notes to the extent that the Taxes are imposed or levied:
(a) surrendered by a Relevant Taxing Jurisdiction by reason of the Holder Holder's or beneficial owner's present or former connection with such Relevant Taxing Jurisdiction (other than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the beneficial owner thereof for payment exercise or enforcement of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by rights under any Notes or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;this Indenture); or
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of Notes, prior to the relevant date on which a payment under and with respect to the Notes is due and payable (the "Relevant Payment Date") to comply with the Issuer's written request addressed to the Holder at least 30 calendar days prior to the Relevant Payment Date to provide informationaccurate information with respect to any certification, documents identification, information or other evidence concerning reporting requirements which the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or such beneficial owner which is legally required or to satisfy, whether imposed by a statute, treaty, regulation or administrative practice of practice, in each such case by the Relevant Taxing Jurisdiction Jurisdiction, as a precondition to exemption from all from, or part reduction in the rate of such taxdeduction or withholding of, assessment or governmental charge;
(c) held Taxes imposed by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, (including, without limitation, such a certification that the Holder or beneficial owner being or having been a citizen or is not resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;the Relevant Taxing Jurisdiction).
(d3) on account In addition, the Issuer's and the Subsidiary Guarantors' obligation to pay Additional Amounts or to reimburse a Holder for Taxes paid by such Holder in respect of Taxes shall not apply with respect to:
(a) any estate, inheritance, gift, salesales, transfer, personal property or similar Taxes;
(b) any Tax that is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes;
(c) Taxes imposed on or with respect to any payment by the Issuer or the Subsidiary Guarantors to the Holder if such Holder is a fiduciary or partnership or person other similar tax, assessment than the sole beneficial owner of such payment to the extent that Taxes would not have been imposed on such Holder had such Holder been the sole beneficial owner of such Note,
(d) any Tax that is imposed on or other governmental chargewith respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union;
(e) except any such withholding or deduction in respect of any Taxes imposed on a payment to an individual that is required to be made pursuant to any EU Directive on the case taxation of savings implementing the conclusions of the winding up ECOFIN Council meeting of the Company 26th-27th November 2000 or any Guarantorlaw implementing or complying with, any Note surrendered for payment or introduced in the Republic of France;order to conform to, such Directive; or
(f) as a result of any combination of (a), (b), (c), (d) or and (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;).
(g4) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company Issuer or any Guarantor becomes the Subsidiary Guarantors shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will shall be paid promptly thereafter and in any case before the relevant payment datethereafter), the Company will Issuer or the Subsidiary Guarantors shall deliver to each Paying Agent the Trustee an Officers’ ' Certificate stating the fact that such Additional Amounts will shall be payable, payable and the amount amounts so payable and will shall set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. The Issuer shall promptly publish a press release stating that such Additional Amounts shall be payable and describing its obligation to pay such amounts. Whenever in this Indenture there is mentionedthe Issuer refers to, in any context, (a) the payment of principal (and premiumprincipal, interest, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on under or with respect to any of note, the Notes or the Subsidiary Guarantees, such mention Issuer is deemed to include mention of including in that reference the payment of Additional Amounts provided for in this section to the extentAmounts, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinif applicable.
Appears in 1 contract
Sources: Indenture (TMM Lines LTD LLC)
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor (each a “Payor”) under or with respect to the Notes or the Subsidiary Guarantees any Note Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) such Payor is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authoritylaw. If the Company or any Guarantor (or any Paying Agent) a Payor is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of any jurisdiction in which such Payor is incorporated, organized, resident or carrying on business for tax purposes or from or through which such Payor or its respective agents makes any payment on the Notes or any Note Guarantee or any department or political subdivision thereof (each, a “Relevant Taxing Jurisdiction Jurisdiction”) from any payment made under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, such Payor, subject to the Subsidiary Guaranteesexceptions stated below, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so such that the net amount received in respect of such payment by such each Holder (including the Additional Amounts) or Beneficial Holder after such withholding or deduction (including withholding or deduction attributable to Additional Amounts payable hereunder) will not be less than the amount such the Holder or Beneficial Holder, as the case may be, would have received if such Taxes had not been required to be so withheld or deducted.
(b) A Payor will not, provided that no however, pay Additional Amounts will be payable to a Holder or Beneficial Holder with respect to any Noteto:
(a1) surrendered Canadian withholding Taxes imposed on a payment to a Holder or Beneficial Holder by reason of such Holder or Beneficial Holder being a person with whom the Payor does not deal at arm’s length for the purposes of the Tax Act at the time of making such payment (other than where the non-arm’s length relationship arises as a result of the exercise or enforcement of rights under any Notes or any Note Guarantee);
(2) any Canadian withholding Taxes imposed on a payment or deemed payment to a Holder or Beneficial Holder by reason of such Holder or Beneficial Holder being a “specified shareholder” of the Company (within the meaning of subsection 18(5) of the Tax Act) at the time of payment or deemed payment, or by reason of such Holder or Beneficial Holder not dealing at arm’s length for the purposes of the Tax Act with a “specified shareholder” of the Company at the time of payment or deemed payment (other than where the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has Beneficial Holder is a “specified shareholder,” or does not been received by or on behalf deal at arm’s length with a “specified shareholder,” as a result of the relevant Holder exercise or the beneficial owner on enforcement of rights under any Notes or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled any Note Guarantee);
(3) Taxes giving rise to such Additional Amounts that would not have been imposed but for the existence of any present or former connection between such Holder or Beneficial Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or person in possession of power over, such Holder or Beneficial Holder, if such Holder or Beneficial Holder is an estate, a trust, a partnership or a corporation) and the Relevant Taxing Jurisdiction in which such Taxes are imposed (including being or having been a citizen, domiciliary, resident or national of, or carrying on surrendering such a business or maintaining a permanent establishment in, the Relevant Taxing Jurisdiction but not including any connection resulting solely from the acquisition, ownership, holding or disposition of Notes, the receipt of payments thereunder and/or the exercise or enforcement of rights under any Notes or any Note for payment on any day during the applicable 30-day periodGuarantee);
(b4) if any tax, assessment or other governmental charge is Taxes giving rise to such Additional Amounts that would not have been imposed or withheld by reason of but for the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner Beneficial Holder, to provide the extent such Holder or Beneficial Holder is legally eligible to do so, to comply with any written request, made to that Holder or Beneficial Holder in writing at least 90 days before any such withholding or deduction would be payable, by the Payor to satisfy any certification, identification, information, documents documentation or other evidence reporting requirements concerning the such Holder’s or Beneficial Holder’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner Jurisdiction, which is required or imposed by a statute, treaty, regulation or administrative practice of the a Relevant Taxing Jurisdiction as a precondition to exemption from all from, or part reduction in the rate of deduction or withholding of, such taxTaxes imposed by the Relevant Taxing Jurisdiction (including, assessment without limitation, a certification that the Holder or governmental chargeBeneficial Holder is not resident in the Relevant Taxing Jurisdiction);
(c5) held any estate, inheritance, gift, sales, transfer, personal property or any similar Taxes or assessment or any excise tax imposed on the transfer of the Notes;
(6) any Taxes that are imposed with respect to any payment on a Note to any Holder who is a fiduciary, partnership, limited liability company or other fiscally transparent entity or person other than the sole Beneficial Owner of such payment and to the extent that no Additional Amounts would have been payable had the Beneficial Owner of the applicable Note been the holder of such Note;
(7) Taxes imposed on, or deducted or withheld from, payments in respect of the Notes if such payments could have been made without such imposition, deduction or withholding of such Taxes had such Notes been presented for payment (where presentation is required) within 30 days after the date on which such payments or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent such Holder or Beneficial Holder would have been entitled to such Additional Amounts had such Notes been presented on the last day of such 30-day period);
(8) Taxes giving rise to such Additional Amounts that would not have been imposed but for the presentation of any Note for payment by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled able to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) avoid such withholding or deduction is imposed or levied on a payment by presenting the relevant Note to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005another paying agent;
(h9) when such withholding or deduction any Tax which is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by deduction or withholding or deduction from a payment payments made under or with respect to the NotesNotes or any Note Guarantee;
(j10) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any GuarantorTaxes imposed under FATCA; or
(k11) Any any combination of items the foregoing clauses (a1) through (j10).
(c) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees any Note Guarantee is due and payable, if the Company or any Guarantor becomes a Payor will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th 35th day prior to the date on which such payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment datethereafter), the Company Payor will deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, payable and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes and/or Beneficial Holders on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) The Trustee shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. The Payor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or Additional Amounts.
(d) The Payors will indemnify and hold harmless the Holders and Beneficial Holders of the Notes for the amount of any Taxes under Regulation 803 of the Tax Act, or any similar or successor provision, (other amount than Taxes described in Sections 4.16(b)(1) through (10) (but including, notwithstanding clause (9), any Taxes payable pursuant to Regulation 803 of the Tax Act) or Taxes arising by reason of a transfer of the Note to a person resident in Canada with whom the transferor does not deal at arm’s length for the purposes of the Tax Act except where such non-arm’s length relationship arises as a result of the exercise or enforcement of rights under any Notes or any Note Guarantee) levied or imposed on and paid by such a Holder or Beneficial Holder as a result of payments made under or with respect to any of the Notes or any Note Guarantee.
(e) In addition, the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, Payor will pay and indemnify the Holder or Beneficial Holder for any present or future stamp, court issue, registration, transfer, court, documentation, excise, property or documentary taxes other similar Taxes, charges and duties, including any interest, penalties and any similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction (and, in the case of enforcement, any jurisdiction) at any time in respect of the execution, issuance, registration, delivery or enforcement of the Notes, any Note Guarantee or any other excise document or property instrument referred to thereunder and any such Taxes, charges or duties imposed by any Relevant Taxing Jurisdiction on any payments made pursuant to the Notes or any Note Guarantee and/or any other such document or instrument (limited, solely in the case of taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of duties attributable to any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes taxes, charges or duties imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (aSections 4.16(b)(3) through (k8) or (10) aboveor any combination thereof).
(f) The Payor will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant Taxing Authority in accordance with applicable law. Upon request, the Payor will provide to the Trustee an official receipt or, if official receipts are not obtainable, other documentation reasonably satisfactory to the Trustee evidencing the payment of any Taxes so deducted or withheld. Upon request, the Trustee will make available to Holders copies of those receipts or other documentation, as the case may be. The Trustee will not be responsible for ensuring that the withholding and deduction of any amount has been properly made. Except as specifically provided above, the Payor shall not be required to make a payment with respect to any Tax imposed or levied by or within any Relevant Taxing Jurisdiction.
(g) The obligations of the Company or any Guarantor described in under this Section 4.19 4.16 will survive any termination, defeasance or satisfaction and discharge of this Indenture or Indenture, any transfer by a holder Holder or beneficial owner Beneficial Holder of its notesNotes, and will apply, mutatis mutandis, apply (reflecting the applicable necessary changes) to any successor Person to any Payor and to any jurisdiction in which any such successor Person to the Issuer or any Guarantor is incorporated, engaged in organized or is otherwise resident or doing business for tax purposes or resident for tax purposes or any jurisdiction from or through which payment is made by such Person makes any payment on the Notes and successor or its respective agents or any department or any political subdivision thereof thereof. Whenever this Indenture refers to, in any context, the payment of principal, premium, if any, interest, redemption price, purchase price or thereinany other amount payable under or with respect to any Note or Note Guarantee, such reference shall include the payment of Additional Amounts or indemnification payments as described hereunder, if applicable.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Note Guarantees will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge of a similar nature (including without limitationpenalties, penaltiesadditions to tax, interest and any other liability with respect liabilities related thereto) (“Taxes”) imposed unless the withholding or levied by or on behalf deduction of any jurisdiction in which the Company or any Guarantor (including any successor entities) such Taxes is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction required by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authoritylaw. If the Company any deduction or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for withholding for, or on account of of, any Taxes imposed or levied by or on behalf of the government of the Republic of the M▇▇▇▇▇▇▇ Islands or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Company or applicable Guarantor (including any successor entity) is organized, incorporated, engaged in business or is otherwise resident or treated as resident for tax purposes, or any jurisdiction from or through which payment is made (including, without limitation, the jurisdiction of each Paying Agent) (each a Relevant Taxing Jurisdiction “Specified Tax Jurisdiction”), will at any time be required to be made from any payment payments made under or with respect to the Notes or the Subsidiary Note Guarantees, the Company or any such applicable Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in or the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by in respect of such Holder payments (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder that would have been received in respect of such payments if such Taxes had not been withheld or deducted; provided, provided however, that no the foregoing obligation to pay Additional Amounts does not apply to:
(1) any Taxes that would not have been so imposed but for the Holder or Beneficial Owner of the Notes having any present or former connection with the Specified Tax Jurisdiction (other than the mere acquisition, ownership, holding, enforcement or receipt of payment in respect of the Notes or the Note Guarantees);
(2) any estate, inheritance, gift, sales, excise, transfer, capital gains, personal property or similar Tax;
(3) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or the Note Guarantees;
(4) any Taxes imposed as a result of the failure of the Holder or Beneficial Owner of the Notes, to the extent it is legally entitled to do so, to complete, execute and deliver to the Company any form or document to the extent applicable to such Holder or Beneficial Owner that may be required by law (including any applicable tax treaty) or by reason of administration of such law and which is reasonably requested in writing by the Company or the applicable Guarantor at least 90 days before such withholding or deduction will be payable to be delivered to the Company in order to enable the Company or the applicable Guarantor to make payments on the Notes or the Note Guarantees without deduction or withholding for Taxes, or with respect to any Note:deduction or withholding of a lesser amount, which form or document will be delivered within 60 days of a written request therefor by the Company;
(a5) surrendered by any Taxes that would not have been so imposed but for the Holder or beneficiary of the beneficial owner thereof payment having presented a Note for payment of principal (in cases in which presentation is required) more than 30 days after the later of (1) the date on which such payment first or such Note became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on whichwhich payment thereof is duly provided for, the full amount having been so received, notice to that effect shall have been given to the Holders whichever is later (except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts had the Note been presented on surrendering the last day of such Note for payment on any day during the applicable 30-day period);
(b6) if any tax, assessment or other governmental charge is Taxes imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any the Holder who if such Holder is a fiduciary or fiduciary, partnership or person other than the sole beneficial owner Beneficial Owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or beneficial owner the Beneficial Owner of such payment would not have been entitled to any Additional Amounts had such beneficiary beneficiary, settlor, member or settlor or beneficial owner Beneficial Owner been the Holderactual Holder of such Note;
(g7) such withholding or deduction is any Taxes imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A Sections 1471 through 1474 of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 as of the Code date hereof (or any regulations amended or successor version that is substantively comparable and not materially more onerous to comply with) or any current or future Treasury Regulations or other official administrative guidance promulgated thereunder or official interpretations thereof) any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing (and another jurisdiction facilitating including, for the implementation thereof avoidance of doubt, pursuant to any agreement entered into pursuant to Section 1471(b)(1) of the Code as of the date hereof (or any fiscal amended or regulatory legislation, rules or practices implementing such an intergovernmental agreementsuccessor version described above)); or
(8) any combination of clauses (1) through (any such withholding or deduction, a “FATCA Withholding”). Neither 7) above.
(b) If the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor becomes aware that it will also make such withholding or deduction and remit the full amount deducted or withheld be obligated to the relevant authority in accordance pay Additional Amounts with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant respect to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payableNote Guarantees, if the Company or any Guarantor becomes obligated will deliver to pay Additional Amounts with respect the Trustee and Paying Agent at least 30 days prior to such the date of that payment (unless such the obligation to pay Additional Amounts arises after the 30th day prior to the date on which that payment under or with respect to the Notes or the Subsidiary Guarantees is due and payabledate, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each notify the Trustee and Paying Agent promptly thereafter but in no event later than two Business Days prior to the date of payment) an Officers’ Officer’s Certificate stating the fact that such Additional Amounts will be payable, payable and the amount so payable and will payable. The Officer’s Certificate must also set forth such any other information as necessary to enable such the Paying Agent to pay such Additional Amounts to Holders on the relevant payment date. The Trustee and Paying Agent will be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Company will provide the Trustee and Paying Agent with documentation reasonably satisfactory to the Trustee and Paying Agent evidencing the payment of Additional Amounts.
(c) The Company or applicable Guarantor will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant governmental authority on a timely basis in accordance with applicable law. As soon as practicable, the Company will make commercially reasonable efforts to provide the Trustee and Paying Agent with an official receipt or, if official receipts are not obtainable, other documentation reasonably satisfactory to the Trustee and Paying Agent evidencing the payment of the Taxes so withheld or deducted. Upon written request, copies of those receipts or other documentation, as the case may be, will be made available by the Trustee and Paying Agent to the Holders of the Notes on the payment date. Notes.
(d) Whenever in this Indenture there is mentionedreferenced, in any context, (a) the payment of amounts based upon the principal (and premium, if any), (b) purchase prices in connection with a purchase amount of the NotesNotes or of principal, (c) interest or (d) any other amount payable on under, or with respect to any of to, the Notes or the Subsidiary GuaranteesNotes, such mention is reference will be deemed to include mention of the payment of Additional Amounts provided for in as described under this section heading to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(e) The Company or applicable Guarantor will indemnify a GuarantorHolder or Beneficial Owner, within 10 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder or Beneficial Owner to a governmental authority of a Specified Tax Jurisdiction, on or with respect to any payment by on or account of any obligation of the Company or Guarantor to withhold or deduct an amount on account of Taxes for which the Company or Guarantor would have been obliged to pay Additional Amounts hereunder and any penalties, additions to tax, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant governmental authority. A certificate as to the case may be, amount of such payment or liability delivered to the Company by a Holder will be conclusive absent manifest error.
(f) The Company or applicable Guarantor will pay any present or future stamp, court, issue, registration, value added, court or documentary taxes or any other excise or property taxes, charges or similar levies (including penalties, additions to tax, interest and any other liabilities and reasonable expenses related thereto) that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Specified Tax Jurisdiction from the initial issue execution, delivery, enforcement or registration of the Notes Notes, the Note Guarantees, this Indenture or on any other document or instrument in relation thereof, or the enforcement receipt of any payments with respect to the NotesNotes or the Note Guarantees (each such tax, any Subsidiary Guaranteea “Note Issuance Tax”), the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of and the Company or such Guarantor will indemnify the Holders or Beneficial Owners for any Guarantor such Note Issuance Taxes paid by such Holders or Beneficial Owners.
(g) The obligations described in this Section 4.19 3.09 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer Company or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department organized or any political subdivision or authority or agency thereof or therein.
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Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees any Note Guarantee by a Payor will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company withholding or any Guarantor (or any Paying Agent) deduction of such Taxes is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authoritylaw. If the Company any withholding or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount deduction for or on account of Taxes imposed or levied is required by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guaranteesapplicable law, the Company or any such Guarantor applicable Payor will pay to each Holder of the Notes that are outstanding on the date of the required payment, Holders such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the every net amount received by such Holder payment of interest (including any premium paid upon redemption of the Additional Amounts) after such withholding Notes and any discount deemed interest under Netherlands law), principal or deduction other amount on that Note or the Note Guarantee will not be less than the amount such Holder Holders would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:.
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of The Company (and Guarantors) will also indemnify and reimburse Holders for:
(1) Taxes (including any interest, penalties and related expenses) imposed on the date on which such payment first became due and Holders (2) or if the full amount payable has a Holder is not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due dateowner, the date on which, the full amount having been so received, notice to that effect shall have been given beneficial owner) by a Relevant Tax Jurisdiction if and to the Holders except to the same extent that the a Holder or the beneficial owner would have been entitled to such Additional Amounts receive additional amounts if the Company (or a Guarantor) or other applicable withholding agent had been required to deduct or withhold those taxes from payments on surrendering such the Notes or the Note for payment on Guarantees; and
(2) Stamp, court, documentary or similar taxes or charges (including any day during interest, penalties and related expenses) imposed by a Relevant Tax Jurisdiction in connection with the applicable 30-day period;execution, delivery, enforcement or registration of the Notes or the Note Guarantees or other related documents and obligations.
(b) The Company (or a Guarantor) will not pay additional amounts to any Holder for or on account of any of the following:
(1) any Tax imposed solely because at any time there is or was a connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of or possessor of power over the relevant holder if the holder is an estate, nominee, trust, partnership, limited liability company, or corporation) and the Relevant Tax Jurisdiction imposing the tax (other than the mere receipt of a payment or the acquisition, ownership, disposition or holding of, or enforcement of rights under, a Note or the Note Guarantees);
(2) any estate, inheritance, gift, excise, transfer, property or any similar tax, assessment or other governmental charge is charge;
(3) any Taxes imposed or withheld by reason of the failure to comply by solely because the Holder or, (or if differentthe Holder is not the beneficial owner, the beneficial owner (ayant-droitowner) of the Note fails to comply with a request addressed to such Holder or beneficial owner to provide informationany certification, documents identification or other evidence reporting requirement concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction taxing jurisdiction of such the Holder or any beneficial owner which of the Note or the Note Guarantees, if compliance is required by law or imposed by an applicable income tax treaty to which the jurisdiction imposing the tax is a statuteparty, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to an exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental chargecharge for which such Holder is eligible and the Company (or a Guarantor) has given the Holders written notice within a reasonable period of time prior to the first payment date with respect to which such information or identification is required under applicable law that Holders will be required to provide such information and identification;
(e4) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or Taxes with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any a Note or Subsidiary a Note Guarantee presented for payment more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment Holders, whichever occurs later, except to the extent that a beneficiary or settlor or beneficial owner the Holder of the Note would not have been entitled to any Additional Amounts additional amounts had the Notes been presented on the last day of such beneficiary or settlor or beneficial owner been the Holder30-day period;
(g5) such any withholding or deduction is imposed or levied on a payment to a Luxembourg resident an individual and that is required to be made pursuant to the Luxembourg European Union Directive on the taxation of savings income, which was adopted by the ECOFIN Council on June 3, 2003, or any law of 23 December 2005;implementing or complying with, or introduced in order to conform to, such Directive; and
(h6) when any Tax imposed on or with respect to a payment made to a Holder or beneficial owner of Notes who would have been able to avoid such withholding or deduction is required by presenting the relevant Notes to be made by reason of that interest being (x) paid to a bank account opened another paying agent in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A member state of the French Code général des impôtsEuropean Union;
(i7) in case of Taxes which are any Tax payable otherwise other than by deduction or withholding from payments to a Holder or deduction from a payment made under beneficial owner under, or with respect to, the Notes or with respect to the Notes;any Note Guarantee; or
(j8) any combination of times listed in clauses (1) when through (7) above.
(c) The Payor will (i) make any such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
applicable law and (kii) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company Payor will furnishmake reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Tax Jurisdiction imposing such Taxes. The Payor will provide to the Trustee, within 60 days a reasonable time after the date the payment of any Taxes is so deducted or withheld are due pursuant to applicable law, to the Trustee, copies either a certified copy of tax receipts (to the extent received from the relevant evidencing such payment, or, if such tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence receipts are not reasonably available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payablePayor, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such other documentation that provides reasonable evidence of such payment (unless such obligation to pay Additional Amounts arises after by the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or Payor.
(d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this This Section 4.19 4.17 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any successor Person to any Payor and to any jurisdiction in which any such successor Person to the Issuer is organized or any Guarantor is incorporated, engaged in otherwise resident or doing business for tax purposes or resident for tax purposes or any jurisdiction from or through which payment is made by such Person makes any payment on the Notes and any department successor or any political subdivision thereof or thereinits respective agents.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (“hereinafter "Taxes”") imposed unless the withholding or levied by or on behalf deduction of any jurisdiction in which the Company or any Guarantor (including any successor entities) such Taxes is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction required by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authoritylaw. If the Company any deduction or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for withholding for, or on account of of, any Taxes imposed or levied by or on behalf of the government of the Republic of ▇▇▇▇▇▇▇▇ Islands or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Company (including any successor entity) is organized or is otherwise resident for tax purposes, or any jurisdiction from or through which payment is made (including, without limitation, the jurisdiction of each paying agent) (each a Relevant Taxing Jurisdiction "Specified Tax Jurisdiction"), will at any time be required to be made from any payment payments made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“"Additional Amounts”") as may be necessary so that the net amount received in respect of such payments by such a Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable with respect to any Notedoes not apply to:
(ai) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has any Taxes that would not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having have been so received, notice to that effect shall have been given to imposed but for the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents of the Notes having any present or other evidence concerning the nationality, residence, identity or former connection with the Relevant Taxing Specified Tax Jurisdiction (other than the mere acquisition, ownership, holding, enforcement or receipt of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice payment in respect of the Relevant Taxing Jurisdiction as a precondition to exemption from all Notes);
(ii) any estate, inheritance, gift, sales, excise, transfer, personal property tax or part of such similar tax, assessment or governmental charge;
(ciii) held any Taxes payable other than by deduction or on behalf withholding from payments under, or with respect to, the Notes;
(iv) any Taxes imposed as a result of a the failure of the Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Notes to complete, execute and deliver to the Company any form or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, document to the extent applicable to such Holder or beneficial owner being that may be required by law or having been by reason of administration of such law and which is reasonably requested in writing to be delivered to the Company in order to enable the Company to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a citizen lesser amount, which form or resident thereof or being or having been present or engaged in document will be delivered within 60 days of a trade or business therein or having had a permanent establishment thereinwritten request therefor by the Company;
(dv) any Taxes that would not have been so imposed but for the beneficiary of the payment having presented a Note for payment (in cases in which presentation is required) more than 30 days after the date on account which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental chargesuch 30-day period);
(evi) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) Taxes imposed on or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any the Holder who if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment would not have been entitled to any Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holderactual Holder of such Note;
(gvii) such withholding any Taxes that are required to be deducted or deduction is imposed or levied withheld on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg European Council Directive 2003/48/EC or any law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inimplementing, or (y) paid or accrued introduced in order to a person established or domiciled inconform to, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantordirective; or
(kviii) Any any combination of items (ai) through (jvii) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of .
(b) If the Company or by any Guarantor, becomes aware that it will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required obligated to pay any Additional Amounts in with respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payableNotes, if the Company or any Guarantor becomes obligated will deliver to pay Additional Amounts with respect the Trustee and Paying Agent at least 30 days prior to such the date of that payment (unless such the obligation to pay Additional Amounts arises after the 30th day prior to the date on which that payment under or with respect to the Notes or the Subsidiary Guarantees is due and payabledate, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each notify the Trustee and Paying Agent in writing promptly thereafter but in no event later than five calendar days prior to the date of payment) an Officers’ ' Certificate stating the fact that such Additional Amounts will be payable, payable and the amount so payable and will payable. The Officers' Certificate shall also set forth such any other information as necessary to enable such the Paying Agent to pay such Additional Amounts to Holders on the relevant payment date. The Trustee and Paying Agent will be entitled to rely solely on such Officers' Certificate as conclusive proof that such payments are necessary. The Company will provide the Trustee and Paying Agent with documentation evidencing the payment of Additional Amounts.
(c) The Company will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant governmental authority on a timely basis in accordance with applicable law. As soon as practicable, the Company will provide the Trustee and Paying Agent with an official receipt or, if official receipts are not obtainable, other documentation evidencing the payment of the Taxes so withheld or deducted. Upon written request, copies of those receipts or other documentation, as the case may be, will be made available by the Trustee and Paying Agent to the Holders of the Notes on the payment date. Notes.
(d) Whenever in the Indenture or this Third Supplemental Indenture there is mentionedreferenced, in any context, (a) the payment of amounts based upon the principal (and premium, if any), (b) purchase prices in connection with a purchase amount of the NotesNotes or of principal, (c) interest or (d) any other amount payable on under, or with respect to any of to, the Notes or the Subsidiary GuaranteesNotes, such mention is reference will be deemed to include mention of the payment of Additional Amounts provided for in as described under this section heading to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(e) The Company will indemnify a Holder, within 10 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder to a governmental authority of a Specified Tax Jurisdiction, on or with respect to any payment by on or account of any obligation of the Company to withhold or deduct an amount on account of Taxes for which the Company would have been obligated to pay Additional Amounts hereunder and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant governmental authority. A certificate as to the amount of such payment or liability delivered to the Company by a Guarantor, as the case may be, Holder will be conclusive absent manifest error.
(f) The Company will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Specified Tax Jurisdiction from the initial issue execution, delivery, enforcement or registration of the Notes Notes, the Indenture or on any other document or instrument in relation thereof, or the enforcement receipt of any payments with respect to the Notes, any Subsidiary Guarantee, and the Indenture or any other documents related thereto (limited, in case of Taxes attributable to Company will indemnify the receipt of payments thereto, to Holders for any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer taxes paid by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinHolders.
Appears in 1 contract
Additional Amounts. All payments made by the Issuer under or on behalf of with respect to the Securities, by the Company under or with respect to the Company Guarantee and by any Subsidiary Guarantor under or with respect to its Subsidiary Guarantee (the Notes or Issuer, the Company and any such Subsidiary Guarantees Guarantor being referred to for purposes of this paragraph individually as an "Obligor" and collectively as the "Obligors") will be made free and clear of of, and without withholding or deduction for or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of the Government of Canada or of any province or territory thereof or by any authority or agency therein or thereof having power to tax (or the jurisdiction in which the Company or any Guarantor (including of incorporation of any successor entitiesof any Obligor) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”hereunder "Taxes"), unless the Company applicable Obligor or any Guarantor (or any Paying Agent) successor, as the case may be, is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authoritygovernmental authority or agency. If the Company any Obligor or any Guarantor (or any Paying Agent) successor, as the case may be, is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesSecurities, the Company Guarantee or any Subsidiary Guarantee, such Guarantor Obligor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“"Additional Amounts”") as may be necessary so that the net amount received by such each Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such the Holder would have received if such Taxes had not been withheld or deducted, provided ; PROVIDED that no Additional Amounts will be payable with respect to any Note:
a payment made to a Holder (an "Excluded Holder") in respect of a beneficial owner (a) surrendered by with which the Holder or Issuer does not deal at arm's-length (within the beneficial owner thereof for payment meaning of principal more than 30 days after the later Income Tax Act (Canada)) at the time of (1) the date on which making such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture (Canadian Forest Oil LTD)
Additional Amounts. All payments made (a) The Company hereby agrees that any amounts to be paid by or on behalf of the Company or any Guarantor under or with respect to the Notes each Security shall be paid without deduction or the Subsidiary Guarantees will be made free withholding for any and clear of all present and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levy, impost, assessment imposts or other governmental charge (including without limitationcharges whatsoever imposed, penaltiesassessed, interest and any other liability with respect thereto) (“Taxes”) imposed levied or levied collected by or on behalf for the account of any jurisdiction in which (i)(x) the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes Republic of Panama or any political subdivision or taxing authority thereof or therein (y) the jurisdiction of incorporation (other than the United States or any political subdivision or taxing authority thereof) of a successor entity to the Company pursuant to Section 8.1, to the extent that such taxes, levies, imposts or other governmental charges first become applicable as a result of such successor entity becoming the obligor on the Securities, or (ii) any other jurisdiction by (other than the United States or any political subdivision or taxing authority thereof) from or through which payment any amount is made paid by the Company hereunder or where it is resident or maintains a place of business or permanent establishment (each, each jurisdiction described in Clauses (i) and (ii) above is referred to herein as a “Relevant Taxing Jurisdiction” and such taxes, levies, imposts or other governmental charges are referred to as “Taxes”), unless the Company withholding or deduction of such Tax is compelled by laws of the Republic of Panama or any Guarantor other applicable Taxing Jurisdiction. If any deduction or withholding of any Taxes (other than Excluded Taxes, as defined below) is ever required by the Republic of Panama or any other Taxing Jurisdiction, the Company shall (subject to compliance by the Holder or beneficial owner of each Security with any applicable administrative requirements) pay such additional amounts (“Additional Amounts”) required to make the net amounts paid to each Holder of such Security or the Trustee pursuant to the terms of this Indenture or the Securities, after such deduction or withholding, equal to the amounts of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, to which such Holder or the Trustee is entitled. However, the Company shall not be required to pay Additional Amounts in respect of the following Taxes (“Excluded Taxes”):
(1) any present or future Taxes imposed, assessed, levied or collected as a result of the Holder or beneficial owner of a Security (i) being organized under the laws of, or otherwise being or having been a domiciliary, national or resident of, (ii) being engaged or having been engaged in a trade or business in, (iii) having or having had its principal office located in, (iv) maintaining or having maintained a permanent establishment in, (v) being or having been physically present in, or (vi) otherwise having or having had some connection (other than the connection arising solely from holding or owning such Security, or collecting principal and interest, if any, on, or the enforcement of, such Security) with the Republic of Panama or any other applicable Taxing Jurisdiction;
(2) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was presented more than thirty days after the date the relevant payment is first made available for payment to the Holder or beneficial owner;
(3) any present or future Taxes imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any Paying Agentrelated law or administrative practices or procedures) is required implementing the foregoing or any agreements entered into pursuant to withhold or deduct Taxes under the laws current Section 1471(b)(1) of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor Code (or any Paying Agentamended or successor version described above);
(4) is so required to withhold any present or deduct future Taxes payable other than by deduction or withholding from payments under, or with respect to, any amount for Security;
(5) any present or on account of future Taxes imposed in connection with a Security presented for payment (where presentation is permitted or levied required for payment) by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of the Security to provide informationthe extent such Taxes could have been avoided by presenting the relevant Security to, documents or otherwise accepting payment from, another Paying Agent;
(6) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the failure to make any certification, identification or other evidence report concerning the nationality, residence, identity or connection with the Relevant Republic of Panama or any other applicable Taxing Jurisdiction of such the Holder or beneficial owner which is required of such Security or imposed by claim for relief or exemption, if making such a statutecertification, treatyidentification, regulation other report or administrative practice claim is, under the laws, rules or regulations of the Relevant Taxing Jurisdiction as any such jurisdiction, a precondition condition to relief or exemption from all or part of such tax, assessment or governmental charge;Taxes;
(c7) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment Tax or other governmental charge;duty; or
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of 8) any combination of Clauses (a)1) through (7) above; provided further, (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor that no such Additional Amounts shall be payable in respect of any Note or Subsidiary Guarantee to Security held by (x) any Holder who or beneficial owner that is a fiduciary or partnership or other than not the sole beneficial owner of such payment Security, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner owner, partner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to any such Additional Amounts had such beneficiary the beneficiary, settlor, beneficial owner, partner or settlor or beneficial owner member been the Holder;
(g) direct holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inSecurity, or (y) paid or accrued to any Holder that is not a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A resident of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect United States to the Notes;
(j) when extent that, had such withholding or deduction is required to be made by reason Holder been a resident of the Holder United States and eligible (taking into account any applicable limitation on benefits article or similar provision) for the beneficial owner of the Note concurrently being a shareholder of the Company or benefit of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement double taxation treaty between the United States and another jurisdiction facilitating the implementation thereof applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security, such Holder would not have been entitled to such Additional Amounts, or (z) any Holder that is a resident of the United States but that is not eligible for the benefit of any double taxation treaty between the United States and the applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security (but only to the extent the amount of such deduction or any fiscal or regulatory legislation, rules or practices implementing withholding exceeds that which would have been required had such an intergovernmental agreement) (any such withholding or deduction, Holder of a “FATCA Withholding”Security been so eligible and made all relevant claims). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will successor to the Company, as the case may be, agrees to indemnify and hold harmless each Holder of a Security and upon written request reimburse each Holder for the amount of (i) any Taxes levied or imposed and paid by such Holder of a Security (other than Excluded Taxes) as a result of payments made with respect to such Security, (ii) any liability (including penalties, interest and expenses) arising therefrom with respect thereto, and (iii) any Taxes (other than Excluded Taxes) with respect to payment of Additional Amounts or any reimbursement pursuant to this sentence, in each case, to the extent not otherwise reimbursed by the payment of any Additional Amount and not excluded from the requirement to pay Additional Amounts, as described above. The Company or any successor to the Company, as the case may be, shall also (i) make such withholding or deduction to the extent required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishor any successor to the Company, as the case may be, shall furnish the Trustee within 60 30 days after the date the payment of any such Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to evidencing the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available successor to the Holders upon requestCompany, as the case may be, or other evidence of such payment reasonably satisfactory to the Trustee. It is understood, however, that the Trustee is under no obligation to request such certified copies of tax receipts evidencing the payment. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)those payments, the Company will shall deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and stating the amount so amounts that will be payable and will set setting forth such any other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in this Indenture or any Security there is mentioned, in any context, (a) the payment of principal (and the principal, premium, if any), (b) purchase prices or interest, or sinking fund or analogous payment, if any, in connection with a purchase respect of the Notes, (c) such Security or overdue principal or overdue interest or (d) any other amount payable on overdue sinking fund or with respect to any of the Notes or the Subsidiary Guaranteesanalogous payment, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section herein to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as thereof pursuant to the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic provisions of France or this Section and express mention thereof in any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which a Paying Agent those provisions hereof where such express mention is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto not made (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveif applicable). The obligations of the Company or (and any Guarantor described in successor entity to the Company pursuant to Section 8.1) under this Section 4.19 will 10.5 shall survive any termination, defeasance or satisfaction and discharge the termination of this Indenture and the payment of all amounts under or with respect to the Securities.
(b) Each Holder of a Security, by acceptance of such Security, agrees that, with reasonable promptness after receiving written notice from the Company to the effect that such ▇▇▇▇▇▇ is eligible for a refund in respect of Taxes actually paid by the Company pursuant to this Section 10.5, such Holder will sign and deliver, as reasonably directed by the Company, any transfer form provided to such Holder by the Company to enable such Holder to obtain a refund in respect of such Taxes; and if such Holder thereafter receives such refund in respect of such Taxes, such Holder will promptly pay such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority). If a Holder applies for a refund of such Taxes prior to a request by the Company to apply for such a refund, the Holder will, upon receipt of a request by the Company to apply for, or to turn over the proceeds of, any such refund, pay any such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority), promptly upon receipt of such refund. The Company shall pay all reasonable out-of-pocket expenses incurred by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction Holder in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which connection with obtaining such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinrefund.
Appears in 1 contract
Sources: Indenture (Carnival PLC)
Additional Amounts. All payments made by or on behalf of the Company Issuers or any Guarantor under or any successor in interest to any of the foregoing (each, a “Payor”) on or with respect to the Notes or the Subsidiary Guarantees any Guarantee will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (including without limitationcollectively, penalties, interest and any other liability with respect thereto) (“Taxes”) unless such withholding or deduction is required by law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of of:
(a) any jurisdiction in which (other than the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United States or any political subdivision or governmental authority thereof or therein or any jurisdiction by having power to tax) from or through which payment on the Notes or any Guarantee is made by such Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(eachb) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) in which a Payor that actually makes a payment on the Notes or its Guarantee is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (a) and (b), a “Relevant Taxing Jurisdiction”), unless the Company or will at any Guarantor (or any Paying Agent) is time be required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment payments made under or with respect to the Notes or the Subsidiary Guaranteesany Guarantee, including payments of principal, redemption price, interest or premium, if any, the Company or any such Guarantor Payor will pay to each Holder of the Notes that are outstanding on the date of the required payment, (together with such payments) such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by such Holder (including the Additional Amounts) Holders or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amount such Holder amounts that would have been received if in respect of such Taxes had not been withheld payments on the Notes or deductedthe Guarantees in the absence of such withholding or deduction; provided, provided however, that no such Additional Amounts will be payable with respect to any Notefor or on account of:
(ai) surrendered by any Taxes that would not have been so imposed or levied but for the Holder existence of any present or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of former connection between the relevant Holder (or the beneficial owner on between a fiduciary, settlor, beneficiary, partner, member or prior to such due dateshareholder of, or possessor of power over, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder orrelevant noteholder, if differentsuch noteholder is an estate, the beneficial owner (ayant-droitnominee, trust, partnership, limited liability company or corporation) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or the receipt of any payment in respect thereof;
(ii) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or beneficial owner any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by a statutethe applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold all or a part of any such tax, assessment or governmental chargeTaxes);
(ciii) held any Taxes that are payable otherwise than by deduction or withholding from a payment on the Notes or any Guarantee;
(iv) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(v) any Taxes that are required to be deducted or withheld on a payment pursuant to the Directive or any law implementing, or introduced in order to conform to, the Directive;
(vi) any Taxes imposed in connection with a Note presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another paying agent in a member state of the European Union;
(vii) any Taxes payable under Sections 1471 through 1474 of the Code, as of the date of this Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements (including any intergovernmental agreements) entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements) (“FATCA”); or
(viii) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was first made available for payment to the Holder or (y) where, had the beneficial owner who is liable for Taxes in respect of such the Note by reason been the Holder of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any payment of Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being any of clauses (x1) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
8) inclusive above. The Payor will (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is make any required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law. The Company Payor will furnish, within 60 days after the date use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes is due pursuant to applicable law, so deducted or withheld from each relevant taxing authority imposing such Taxes and will provide such certified copies to the Trustee. If, copies notwithstanding the efforts of tax such Payor to obtain such receipts, the same are not obtainable, such Payor will provide the Trustee with other reasonable evidence. Such receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been other evidence will be made available by the Company Trustee to Holders upon written request. If any Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At Guarantee, then, at least 30 days prior to each the date on which any payment under or with respect of such payment, the Payor will deliver to the Notes or Trustee and the Subsidiary Guarantees is due Paying Agent an Officer’s Certificate stating the fact that Additional Amounts will be payable and payable, if the Company or any Guarantor becomes obligated amount so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts with respect to such Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises after the 30th day less than 45 days prior to the date on which relevant payment under or with respect to the Notes or the Subsidiary Guarantees is due and payabledate, in which case it will be paid promptly thereafter the Payor shall deliver such Officer’s Certificate and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary promptly as practicable after the date that is 30 days prior to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date, but no less than five Business Days prior thereto, and otherwise in accordance with the requirements of DTC). Whenever Wherever in this Indenture Indenture, the Notes or any Guarantee there is mentionedmention of, in any context, :
(a1) the payment of principal principal;
(and premium, if any), (b2) redemption prices or purchase prices in connection with a redemption or purchase of the Notes, ;
(c3) interest or interest; or
(d4) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, any Guarantee; such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for in as described under this section heading to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, Payor will pay any present or future stamp, court or documentary taxes Taxes, or any other excise or excise, property taxes, charges or similar levies Taxes that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial issue resale, registration or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the this Indenture or any other documents related document or instrument in relation thereto (limited, in case other than a transfer of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveNotes other than the initial resale thereof). The foregoing obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer a Payor is organized or any Guarantor is incorporated, engaged in business for tax purposes or otherwise considered to be a resident for tax Tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impostinterest, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) ), is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor (and each Paying Agent) will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders by the Trustee, except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any the last day during of the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) any withholding or deduction imposed on a payment to an individual which is required to be made pursuant to any law implementing or complying with, or introduced in order to conform to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of 26–27 November 2000 on the taxation of savings income or any agreement between the European Community and any jurisdiction providing for equivalent measures;
(g) as a result of any combination of (a), (b), (c), (d), (e) or (ef) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;; or
(gh) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)payment, the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, Notes or any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or the satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinIndenture.
Appears in 1 contract
Sources: Indenture (CGG Veritas)
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (hereinafter “Taxes”) imposed unless the withholding or levied by or on behalf deduction of any jurisdiction in which the Company or any Guarantor (including any successor entities) such Taxes is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction required by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authoritylaw. If the Company any deduction or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for withholding for, or on account of of, any Taxes imposed or levied by or on behalf of the government of the Republic of ▇▇▇▇▇▇▇▇ Islands or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Company (including any successor entity) is organized or is otherwise resident for tax purposes, or any jurisdiction from or through which payment is made (including, without limitation, the jurisdiction of each paying agent) (each a Relevant Taxing Jurisdiction “Specified Tax Jurisdiction”), will at any time be required to be made from any payment payments made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received in respect of such payments by such a Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable with respect to any Notedoes not apply to:
(ai) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has any Taxes that would not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having have been so received, notice to that effect shall have been given to imposed but for the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents of the Notes having any present or other evidence concerning the nationality, residence, identity or former connection with the Relevant Taxing Specified Tax Jurisdiction (other than the mere acquisition, ownership, holding, enforcement or receipt of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice payment in respect of the Relevant Taxing Jurisdiction as a precondition to exemption from all Notes);
(ii) any estate, inheritance, gift, sales, excise, transfer, personal property tax or part of such similar tax, assessment or governmental charge;
(ciii) held any Taxes payable other than by deduction or on behalf withholding from payments under, or with respect to, the Notes;
(iv) any Taxes imposed as a result of a the failure of the Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Notes to complete, execute and deliver to the Company any form or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, document to the extent applicable to such Holder or beneficial owner being that may be required by law or having been by reason of administration of such law and which is reasonably requested in writing to be delivered to the Company in order to enable the Company to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a citizen lesser amount, which form or resident thereof or being or having been present or engaged in document will be delivered within 60 days of a trade or business therein or having had a permanent establishment thereinwritten request therefor by the Company;
(dv) any Taxes that would not have been so imposed but for the beneficiary of the payment having presented a Note for payment (in cases in which presentation is required) more than 30 days after the date on account which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental chargesuch 30-day period);
(evi) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) Taxes imposed on or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any the Holder who if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment would not have been entitled to any Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holderactual Holder of such Note;
(gvii) such withholding any Taxes that are required to be deducted or deduction is imposed or levied withheld on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg European Council Directive 2003/48/EC or any law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inimplementing, or (y) paid or accrued introduced in order to a person established or domiciled inconform to, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantordirective; or
(kviii) Any any combination of items (ai) through (jvii) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of .
(b) If the Company or by any Guarantor, becomes aware that it will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required obligated to pay any Additional Amounts in with respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payableNotes, if the Company or any Guarantor becomes obligated will deliver to pay Additional Amounts with respect the Trustee and Paying Agent at least 30 days prior to such the date of that payment (unless such the obligation to pay Additional Amounts arises after the 30th day prior to the date on which that payment under or with respect to the Notes or the Subsidiary Guarantees is due and payabledate, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each notify the Trustee and Paying Agent in writing promptly thereafter but in no event later than five calendar days prior to the date of payment) an Officers’ Certificate stating the fact that such Additional Amounts will be payable, payable and the amount so payable and will payable. The Officers’ Certificate shall also set forth such any other information as necessary to enable such the Paying Agent to pay such Additional Amounts to Holders on the relevant payment date. The Trustee and Paying Agent will be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. The Company will provide the Trustee and Paying Agent with documentation evidencing the payment of Additional Amounts.
(c) The Company will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant governmental authority on a timely basis in accordance with applicable law. As soon as practicable, the Company will provide the Trustee and Paying Agent with an official receipt or, if official receipts are not obtainable, other documentation evidencing the payment of the Taxes so withheld or deducted. Upon written request, copies of those receipts or other documentation, as the case may be, will be made available by the Trustee and Paying Agent to the Holders of the Notes on the payment date. Notes.
(d) Whenever in the Indenture or this Fourth Supplemental Indenture there is mentionedreferenced, in any context, (a) the payment of amounts based upon the principal (and premium, if any), (b) purchase prices in connection with a purchase amount of the NotesNotes or of principal, (c) interest or (d) any other amount payable on under, or with respect to any of to, the Notes or the Subsidiary GuaranteesNotes, such mention is reference will be deemed to include mention of the payment of Additional Amounts provided for in as described under this section heading to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(e) The Company will indemnify a Holder, within 10 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder to a governmental authority of a Specified Tax Jurisdiction, on or with respect to any payment by on or account of any obligation of the Company to withhold or deduct an amount on account of Taxes for which the Company would have been obligated to pay Additional Amounts hereunder and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant governmental authority. A certificate as to the amount of such payment or liability delivered to the Company by a Guarantor, as the case may be, Holder will be conclusive absent manifest error.
(f) The Company will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Specified Tax Jurisdiction from the initial issue execution, delivery, enforcement or registration of the Notes Notes, the Indenture or on any other document or instrument in relation thereof, or the enforcement receipt of any payments with respect to the Notes, any Subsidiary Guarantee, and the Indenture or any other documents related thereto (limited, in case of Taxes attributable to Company will indemnify the receipt of payments thereto, to Holders for any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer taxes paid by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinHolders.
Appears in 1 contract
Sources: Fourth Supplemental Indenture (Scorpio Tankers Inc.)
Additional Amounts. All Any payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees Securities will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (“Taxes”) imposed or levied by or on behalf of the Government of Canada or of any jurisdiction in which the Company province or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision territory thereof or by any authority or agency therein or any jurisdiction by or through which payment is made thereof having power to tax (each, a “Relevant Taxing Jurisdiction”hereinafter "Taxes"), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authoritythereof. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesSecurities, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“"Additional Amounts”") as may be necessary necessary, so that the net amount received by such each Holder of Securities (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, provided however, that no Additional Amounts will be payable with respect to any Note:
a payment made to a Holder (aan "Excluded Holder") surrendered by (i) with which the Holder or Company does not deal at arm's length (within the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf meaning of the relevant Holder Income Tax Act (Canada)) at the time of making such payment, or the beneficial owner on or prior (ii) which is subject to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder Taxes by reason of its being connected with Canada or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment province or other governmental charge is imposed or withheld territory thereof otherwise than solely by reason of the failure to comply Holder's activity in connection with purchasing the Securities, by the Holder or, if different, the beneficial owner (ayant-droit) mere holding of the Note with a request addressed to such Holder Securities or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made thereunder. The Company will, upon written request of any Holder (other than an Excluded Holder), reimburse such Holder, for the amount of (i) any Taxes so levied or imposed and paid by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment payments made under or with respect to the Notes;
Securities and (jii) when any Taxes so levied or imposed with respect to any reimbursement under the foregoing clause (i), but excluding any such withholding or deduction is required to Taxes on such Holder's net income so that the net amount received by such Holder after such reimbursement will not be made by reason of less than the net amount the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid would have received if Taxes on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has reimbursement had not been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon requestimposed. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)payment, the Company will deliver to each Paying Agent the Trustee an Officers’ ' Certificate stating the fact that such Additional Amounts will be payable, payable and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and or premium, if any), (b) purchase prices in connection with a purchase of the NotesRedemption Price, (c) interest or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesSecurity, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.52
Appears in 1 contract
Additional Amounts. All payments made by or on behalf of the Company any Issuer or any Guarantor under or any successor in interest to any of the foregoing (each, a “Payor”) on or with respect to the Notes or the Subsidiary Guarantees any Guarantee will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (including without limitationcollectively, penalties, interest and any other liability with respect thereto) (“Taxes”) unless such withholding or deduction is required by law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of of:
(a) any jurisdiction in which (other than the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United States or any political subdivision or governmental authority thereof or therein or any jurisdiction by having power to tax) from or through which payment on the Notes or any Guarantee is made by such Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(eachb) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a Payor that actually makes a payment on the Notes or its Guarantee is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax, (each of clause (a) and (b), a “Relevant Taxing Jurisdiction”), unless the Company or will at any Guarantor (or any Paying Agent) is time be required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment payments made under or with respect to the Notes or the Subsidiary Guaranteesany Guarantee, including payments of principal, redemption price, interest or premium, if any, the Company or any such Guarantor Payor will pay to each Holder of the Notes that are outstanding on the date of the required payment, (together with such payments) such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by such Holder (including the Additional Amounts) Holders or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amount such Holder amounts that would have been received if in respect of such Taxes had not been withheld payments on the Notes or deductedthe Guarantees in the absence of such withholding or deduction; provided, provided however, that no such Additional Amounts will be payable with respect to any Notefor or on account of:
(ai) surrendered by any Taxes that would not have been so imposed or levied but for the Holder existence of any present or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of former connection between the relevant Holder (or the beneficial owner on between a fiduciary, settlor, beneficiary, partner, member or prior to such due dateshareholder of, or possessor of power over, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder orrelevant Holder, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder is an estate, nominee, trust, partnership, limited liability company or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or the receipt of any payment in respect thereof;
(ii) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the Payor (such request being made at a time that would enable such holder acting reasonably to comply with that request) to make a declaration of nonresidence or beneficial owner any other claim or filing or satisfy any certification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by a statutethe applicable law, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold all or a part of any such tax, assessment or governmental chargeTaxes);
(ciii) held any Taxes that are payable otherwise than by withholding from a payment on the Notes or any Guarantee;
(iv) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(v) any Taxes that are required to be deducted or withheld on a payment pursuant to the Directive or any law implementing, or introduced in order to conform to, the Directive;
(vi) any Taxes imposed in connection with a Note presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another paying agent in a member state of the European Union;
(vii) any Taxes imposed pursuant to the Directive, or any law implementing or complying with, or introduced in order to conform to, the Directive;
(viii) any Taxes payable under Sections 1471 through 1474 of the Code, as of the date of the Offering Circular (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements (including any intergovernmental agreements) entered into pursuant thereto; or
(ix) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was first made available for payment to the Holder or (y) where, had the beneficial owner who is liable for Taxes in respect of such the Note by reason been the Holder of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any payment of Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A any of the French Code général des impôts;
clauses (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(jviii) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) inclusive above. Notwithstanding The Payor will (1) make any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (2) remit the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The Company Upon request, the Payor will furnish, within 60 days after the date use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes is due pursuant to applicable law, so deducted or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. If, copies notwithstanding the efforts of tax such Payor to obtain such receipts, the same are not obtainable, such Payor will provide the Trustee with other reasonable evidence. Such receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been other evidence will be made available by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon on request. At If any Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to each the date on which any payment under or with respect of such payment, the Payor will deliver to the Notes or Trustee and the Subsidiary Guarantees is due Paying Agent an Officer’s Certificate stating the fact that Additional Amounts will be payable and payable, if the Company or any Guarantor becomes obligated amount so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts with respect to such Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises after the 30th day less than 45 days prior to the date on which relevant payment under or with respect to the Notes or the Subsidiary Guarantees is due and payabledate, in which case it will be paid promptly thereafter the Payor shall deliver such Officer’s Certificate and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary promptly as practicable after the date that is 30 days prior to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date, but no less than five Business Days prior thereto, and otherwise in accordance with the requirements of Euroclear or Clearstream, as applicable). Whenever Wherever in this Indenture Indenture, the Notes or any Guarantee there is mentioned, in any context, :
(a1) the payment of principal principal,
(and premium, if any), (b2) redemption prices or purchase prices in connection with a redemption or purchase of the Notes,
(3) interest, or
(c) interest or (d4) any other amount payable on or with respect to any of the Notes or the Subsidiary Guaranteesany Guarantee, such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for as described in this section Section 2.15 to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, Payor will pay any present or future stamp, court or documentary taxes Taxes, or any other excise or excise, property taxes, charges or similar levies Taxes that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial issue resale, registration or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the this Indenture or any other documents related document or instrument in relation thereto (limited, in case other than a transfer of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveNotes). The foregoing obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer a Payor is organized or any Guarantor is incorporated, engaged in business for tax purposes or otherwise considered to be a resident for tax Tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision or taxing authority or agency thereof or therein. The Issuer and Guarantors shall ensure that no proceeds raised under the Notes will be used in a manner which would constitute a “use of proceeds in Switzerland” as interpreted by Swiss tax authorities for the purposes of Swiss Withholding Tax (Verrechnungssteuer), except and to the extent that a written confirmation or tax ruling countersigned by the Swiss Federal Tax Administration (Eidgenössische Steuerverwaltung) has been obtained confirming that the intended “use of proceeds in Switzerland” if guaranteed by a Swiss resident Guarantor does not result in the Notes qualifying as a Swiss notes issue for Swiss Withholding Tax purposes.
Appears in 1 contract
Additional Amounts. All (a) Except as required by law or by the official interpretation or administration thereof, the Borrower will make any and all payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made this Agreement free and clear of and without withholding or deduction for or on account of any and all present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) Taxes imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) Borrower is so required by law to withhold or deduct any amount for or on account of such Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction (including, without limitation, Personal Assets Taxes) from any payment made under under, or with respect to the Notes or the Subsidiary Guaranteesto, the Company or any such Guarantor will pay to each Holder of Loan, except as provided below in Section 2.08(b), the Notes that are outstanding on sum payable by the date of the required payment, such Borrower shall be increased by additional amounts ("ADDITIONAL AMOUNTS") as may be necessary so that after the Borrower has made all required withholdings and deductions (including withholdings and deductions applicable to additional sums payable under this Section 2.08), (i) the Lender receives an amount not less than the sum it would have received had no such withholdings and deductions been made, (ii) the Borrower shall make all such withholdings and deductions and (iii) the Borrower shall pay the full amount withheld or deducted to the relevant Taxing Jurisdiction in accordance with applicable law. The Borrower further agrees that, in the form of event the Financial Trustee is required by law to withhold or deduct any such Taxes (xincluding, without limitation, Personal Assets Taxes) in from any payment made under, or with respect to, the Trust Notes, it will pay and/or reimburse, as the case of PIK Interestmay be, additional PIK Interest and (y) in all other casesthe Financial Trustee, cash) (“as Lender, for such Additional Amounts”) Amounts as may be necessary so that the net amount received by such Holder the Noteholders (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder the Noteholders would have received if such Taxes had not been required to be withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;.
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date2.08(a), the Company Borrower will deliver not be obligated to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary make any payment pursuant to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (aSection 2.08(a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) in connection with any other amount payable on Tax that is, or with respect to is imposed due to, any of the Notes or following (and for the Subsidiary Guarantees, such mention is deemed to include mention avoidance of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United Statesdoubt, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to term "Additional Amounts" shall not include any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.amounts):
Appears in 1 contract
Sources: Credit Agreement (Quilmes Industrial Quinsa Societe Anonyme)
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees any Guarantee will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (charge, including without limitationany related interest, penalties, interest and any other liability with respect thereto) penalties or additions to tax (“Taxes”) unless the withholding or deduction of such Taxes is then required by law or by the official interpretation or administration thereof. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction in which the Company Issuer or any Guarantor (including any successor entities) is then organized incorporated or organized, engaged in business for tax purposes or resident for tax purposes or any political subdivision or governmental authority thereof or therein having power to tax or (2) any jurisdiction by from or through which payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any paying agent for the Notes) or any political subdivision thereof or therein (each, a “Relevant Taxing Tax Jurisdiction”), unless the Company or ) will at any Guarantor (or any Paying Agent) is time be required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction be made from any payment payments made under or with respect to the Notes or any Guarantee, including, without limitation, payments of principal, redemption price, interest or premium, then the Subsidiary GuaranteesIssuer or the relevant Guarantor, the Company or any such Guarantor as applicable, will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by such each Holder (including the Additional Amounts) after such withholding or deduction (including any such withholding or deduction from such Additional Amounts) will not be less than equal the amount such Holder respective amounts that would have been received if in respect of such Taxes had not been withheld payments in the absence of such withholding or deducteddeduction; provided, provided however, that no Additional Amounts will be payable with respect to any Noteto:
(a1) surrendered by any Taxes, to the extent such Taxes would not have been imposed but for the existence of any actual or deemed present or former connection between the Holder (or between a fiduciary, settler, beneficiary, member or shareholder of, or possessor of a power over the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the Notes and the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
Tax Jurisdiction (b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen citizen, resident or resident national thereof or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment therein), other than connections arising from the acquisition or holding of such Note or any Guarantee, the exercise or enforcement of rights under such Note or under a Guarantee or the receipt of any payments in respect of such Note or a Guarantee;
(d2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where Notes are in the form of certificated Notes and presentation is required) more than thirty (30) days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on account the last day of such 30 day period);
(3) any estate, inheritance, gift, salesales, transfer, personal property or other similar tax, assessment or other governmental chargeTaxes imposed on transfers;
(e4) except in the case of the winding up of the Company any Taxes withheld, deducted or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and that is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the Luxembourg conclusions of the ECOFIN Council meeting of November 26 and 27, 2000 on the taxation of savings income, or any law of 23 December 2005implementing or complying with, or introduced in order to conform to, such Directive;
(h5) when Taxes imposed on or with respect to a payment made to a Holder or beneficial owner of Notes who would have been able to avoid such withholding or deduction is required by presenting the relevant Note to be made by reason of that interest being (x) paid to a bank account opened another paying agent in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A member state of the French Code général des impôtsEuropean Union;
(i6) in case of any Taxes which are payable otherwise other than by deduction or withholding from payments under, or deduction from a payment made under with respect to, the Notes or with respect to the Notesany Guarantee;
(j7) when any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of Notes to comply with any reasonable written request of the Issuer addressed to the Holder or beneficial owner and made at least sixty (60) days before any such withholding or deduction is would be payable to satisfy any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of the relevant Tax Jurisdiction, as a precondition to be made exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by reason of such Tax Jurisdiction (including, without limitation, a certification that the Holder or the beneficial owner of is not resident in the Note concurrently being a shareholder of Tax Jurisdiction), but in each case, only to the Company extent the Holder or of any Guarantor; orbeneficial owner is legally eligible to provide such certification or documentation;
(k) Any combination of items (a) through (j) above. Notwithstanding 8) any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding Taxes that are imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed withheld pursuant to Sections 1471 through 1474 of the Code Code, as of the Temporary Notes Issue Date (or any amended or successor version of such sections), any regulations thereunder or promulgated thereunder, any official interpretations thereof) , any similar law or regulation adopted pursuant to an intergovernmental agreement between a non U.S. jurisdiction and the United States and another jurisdiction facilitating with respect to the implementation thereof (foregoing or any fiscal agreements entered into pursuant to section 1471(b)(1) of the Code; or
(9) any combination of items (1) through (8) above. Such Additional Amounts will also not be payable where, had the beneficial owner of the applicable Note been the Holder of such Note, it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (9) inclusive above.
(b) In addition to the foregoing, the Issuer and the Guarantors, as the case may be, will also pay and indemnify the Holder for any present or regulatory legislationfuture stamp, rules issue, registration, court or practices implementing such an intergovernmental agreementdocumentary Taxes, or any other excise or property Taxes, charges or similar levies (including penalties, interest and any other reasonable expenses related thereto) which are levied by any Tax Jurisdiction on the execution, delivery, issuance, enforcement or registration of any of the Notes, this Indenture, any Guarantee or any other document or instrument referred to therein, or the receipt of any payments with respect thereto, (limited, solely in the case of taxes attributable to the receipt of any payments with respect thereto, to any such withholding taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (5) or deduction(7) through (8) above, a “FATCA Withholding”or any combination thereof). Neither .
(c) If the Company nor any other person, including Issuer or any Guarantor, as the case may be, becomes aware that it will be required obligated to pay any Additional Amounts with respect to any payment under or with respect to any series of Notes or any related Guarantee, each of the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least thirty (30) days prior to the date of that payment (unless the obligation to pay Additional Amounts arises less than thirty (30) days prior to that payment date, in respect of FATCA Withholdingwhich case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Company Officer’s Certificate must also set forth any other information reasonably necessary to enable the Paying Agents to pay such Additional Amounts to Holders on the relevant payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary.
(d) The Issuer or any the relevant Guarantor will also make such withholding or deduction all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable lawApplicable Law. The Company Issuer or the relevant Guarantor will furnishuse its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder or beneficial owner upon written request), within 60 days a reasonable time after the date the payment of any Taxes so deducted or withheld is due pursuant made, certified copies of Tax receipts evidencing payment by the Issuer or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to applicable lawobtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity. Upon reasonable request, copies of tax Tax receipts (to or other evidence of payments, as the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been case may be, will be made available by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders beneficial owners of the Notes on of the payment date. applicable series.
(e) Whenever in this Indenture there is mentioned, in any context, (a) the payment of amounts based upon the principal (and premium, if any), (b) purchase prices in connection with a purchase amount of the NotesNotes or of principal, (c) interest or (d) of any other amount payable on under, or with respect to to, any of the Notes or the Subsidiary Guaranteesany Guarantee, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(f) The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The above obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or Indenture, and any transfer by a holder Holder or beneficial owner of its notesNotes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporatedincorporated or organized, engaged in business for tax purposes or resident for tax purposes (and any political subdivision or governmental authority thereof or therein having power to tax) and any jurisdiction from or through which payment is made by or on behalf of such Person makes any payment on the Notes or any Guarantee and any department or any political subdivision thereof or therein.
Appears in 1 contract
Additional Amounts. All payments made by constructively, 10 percent or on behalf more of the Company total combined voting power of all classes of stock of the Issuer or any Guarantor under entitled to vote or with respect to (ii) any Tax imposed by the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United States or any political subdivision subdivi sion or governmental authority thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld interest by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in controlled foreign corporation that is a trade or business therein or having had a permanent establishment therein;
(drelated person within the meaning of Section 864(d)(4) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding Issuer or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor Issuer will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Company Issuer will furnishfurnish to the Trustee, within 60 30 days after the date the payment of any Taxes is due pursuant to under applicable law, to the Trustee, certified copies of tax receipts (to evidencing such payment by the extent received from the relevant tax authorities Issuer. Wherever in the usual course Indenture or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is are mentioned, in any context, (a1) the payment of principal (and premium, if any)principal, (b2) purchase prices in connection with a purchase of Notes under the Indenture or the Notes, (c3) interest or (d4) any other amount payable on or with respect to any of the Notes or the Subsidiary GuaranteesNotes, such mention is reference shall be deemed to include mention of the payment of Additional Amounts provided for in as described under this section heading to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, Issuer will pay any present or future stamp, court or documentary taxes taxes, or any other excise excise, property or property similar taxes, charges or similar levies that (including any penalties, interest or other liabilities related thereto) which arise in the United States, the Republic of France Luxembourg (or in any jurisdiction in which a Paying Agent is located political subdivision thereof or therein) from the execution, delivery and registration of Notes upon original issuance and initial issue or registration resale of the Notes or on any other document or instrument referred to therein. If at any time the Issuer changes its place of organization to outside of Luxembourg or there is a new issuer organized outside of Luxembourg, the Issuer or new issuer, as applicable, will pay any stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in the jurisdiction in which the Issuer or new issuer is organized (or any political subdivision thereof or therein) and are payable by the Holders of the Notes in respect of the Notes or any other document or instrument referred to therein under any law, rule or regulation in effect at the time of such change, or in connection with, the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture Notes or any such other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed document or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above)instrument. The foregoing obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of the Indenture. References in this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person section (“Additional Amounts”) to the Issuer or Guarantor shall apply to any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinsuccessor(s) thereto.
Appears in 1 contract
Additional Amounts. All payments made by or on behalf in respect of the Company or any Guarantee Payments (including interest accrued thereon, if any) by the Guarantor under or with respect to the Notes or the Subsidiary Guarantees will shall be made free and clear of of, and without withholding or deduction for or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company withholding or any Guarantor (or any Paying Agent) deduction of such Taxes is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the official interpretation or administration thereof by the relevant taxing authorityof applicable law. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of certain Taxes imposed or levied by or on behalf of a Relevant any Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesJurisdiction, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required paymentshall pay, as further Guarantee Payments, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received by such a Holder (including the Additional Amountsor a third party on its behalf) after such withholding or deduction will not be less than the amount such that the Holder would have received in respect of the Guarantee Payments (including interest accrued thereon, if any) in the absence of such Taxes had not been withheld withholding or deducteddeduction (“Additional Amounts”), provided except that no the obligation to pay such Additional Amounts will be payable with respect shall not apply to (i) any Note:
(a) surrendered by Taxes that would not have been imposed but for the Holder existence of any present or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the relevant Holder, if the relevant Holder is an estate, nominee, trust or corporation) and the Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Taxing Jurisdiction) other than by the mere ownership or holding of the Company Preferred Securities or the beneficial owner on Guarantee or prior to such due date, enforcement of rights under the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder Company Preferred Securities or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on Guarantee or under the receipt of payments in respect of the Company Preferred Securities or the Guarantee; (ii) any day during the applicable 30-day period;
(b) if any estate, inheritance, gift, sales, transfer, personal property tax or similar tax, assessment or governmental charge; (iii) any Taxes payable otherwise than by withholding from payments of dividends and other governmental charge amounts due on the Company Preferred Securities or the Guarantee; (iv) any Taxes that would not have been imposed if the Holder had made a declaration of nonresidence or any other claim or filing for exemption to which it is imposed entitled (provided that (a) a declaration of non-residence or withheld other claim or filing for exemption is required by reason the applicable law of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all the requirement to deduct or part withhold such Taxes and (b) at least 30 days prior to the first payment date with respect to which such declaration of such tax, assessment non-residence or governmental charge;
(c) held by other claim or on behalf of a Holder or filing for exemption is required under the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf applicable law of the Company Taxing Jurisdiction, the Holder at that time has been notified by the Company, the Guarantor or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been other person through whom payment may be made that a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account declaration of any estate, inheritance, gift, sale, transfer, personal property non-residence or other similar tax, assessment claim or other governmental charge;
filing for exemption is required to be made); (ev) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) Taxes imposed as a result of any combination the presentation of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of a certificate for the Company or any Guarantor in respect of any Note or Subsidiary Guarantee Preferred Security for payment (where presentation is required) more than 30 days after the relevant payment is first made available to any the Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment (except to the extent that a beneficiary the Holder would have been entitled to receive Additional Amounts had the relevant certificate been presented on the last day of such 30-day period); or settlor or (vi) any combination of items (i) through (v) above. Additional Amounts will also not be payable where, had the beneficial owner of the Company Preferred Securities been the holder, it would not have been entitled to any payment of Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
items (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(jvi) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) inclusive above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also (i) make such any required withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority Taxing Jurisdiction in accordance with applicable law. The Company Guarantor will furnish, within 60 days after the date use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes is due pursuant so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and will provide such certified copy to applicable lawHolders, upon request. The Guarantor will attach to each certified copy a certificate stating: (a) that the Trustee, copies amount of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made withholding Taxes evidenced by the Company or any Guarantorcertified copy was paid in connection with payments in respect of the Guarantee, and (b) the amount of such withholding Taxes paid per relevant Preferred Security. The Trustee Copies of this documentation will make such evidence be available to at the Holders office of the Agent during regular business hours for inspection upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment Dividend Payment Date (unless such an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payablethat date, in which case it will be paid promptly thereafter and thereafter) if there has been a change with respect to the matters set forth in any case before the relevant payment date)below-mentioned Officer’s Certificate, the Company will deliver Guarantor shall furnish to each Paying the Agent an Officers’ Officer’s Certificate stating instructing the Agent as to whether any Guarantee Payment shall be made to Holders without withholding or deduction for or on account of any Taxes. If any such withholding or deduction shall be required, then such Officer’s Certificate shall specify by country the amount required to be withheld or deducted on such payments to such Holders and shall certify the fact that such Additional Amounts will shall be payable, payable if a Guarantee Payment is due and the amount amounts so payable to each Holder and will set forth such any other information as necessary to enable such Paying the Agent to pay such the Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentionedDividend Payment Date, and the Guarantor shall pay to the Agent, in any contextcase a Guarantee Payment is due, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in required to be paid by this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereofSection 2.09. The Company or a Guarantor, as the case may be, Guarantor will pay any present or future stamp, court or documentary taxes taxes, or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue execution, delivery or registration of the Notes Company Preferred Securities or on any other document or instrument referred to in the enforcement Company Preferred Securities (other than a transfer of the Company Preferred Securities), or the receipt of any payments with respect to the NotesGuarantees, excluding any Subsidiary Guaranteetaxes, the Indenture charges or similar levies imposed by any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in jurisdiction that is not a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of has imposed or levied taxes resulting in the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, requirement to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinpay Additional Amounts.
Appears in 1 contract
Sources: Subordinated Guarantee Agreement (Mitsubishi Ufj Financial Group Inc)
Additional Amounts. (a) All payments made by or on behalf of the Company Issuer, the Co-Issuer or any Guarantor (a “Payor”) under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of of, and without deduction or withholding or deduction for or on account of of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other governmental charge charges of whatsoever nature imposed, levied, collected, withheld or assessed (including without limitationcollectively, penalties“Taxes” by the United States, interest and the Netherlands, any other liability with respect thereto) (“Taxes”) imposed jurisdiction in which the Issuer, the Co-Issuer or levied any Guarantor is then incorporated, organized, engaged in business for tax purposes, or resident for tax purposes, any jurisdiction from or through which any such payment is made by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes Payor or any political subdivision or taxing authority thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”)), unless the Company such deduction or any Guarantor (or any Paying Agent) withholding is required to withhold by law.
(b) In the event such deduction or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account withholding of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made is required with respect to payments under or with respect to the Notes or by law of any Relevant Taxing Jurisdiction, subject to the Subsidiary Guaranteeslimitations described below, the Company or any such Guarantor Payors will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the every net amount payment received by the beneficial owner of such Holder Note of principal of or interest or any other amount payable on the Notes (including the Additional Amounts) upon redemption), after deduction or withholding for or on account of such withholding or deduction Taxes, will not be less than the amount such Holder that would have been received if in respect of such Taxes had not been withheld payments in the absence of such deduction or deducted, provided that no withholding for or on account of such Taxes. Payment of Additional Amounts will shall be payable made in accordance with respect the procedures of any applicable securities depositary. However, the Payors’ obligation to any Notepay Additional Amounts shall not apply to:
(ai) surrendered any Taxes that would not have been so imposed but for:
(A) the existence of any present or former connection between such Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member, partner or shareholder or other equity owner of, or a person having a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, a nominee, a trust, a limited liability company, a partnership, a corporation or other entity) and the Relevant Taxing Jurisdiction, including such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, partner or shareholder or other equity owner or person having such a power) being or having been a citizen or resident or treated as a resident of the Relevant Taxing Jurisdiction or being or having been engaged in a trade or business in the Relevant Taxing Jurisdiction or having or having had a permanent establishment in the Relevant Taxing Jurisdiction;
(B) the failure of such Holder or beneficial owner to comply with a request to provide any certification, information or other reporting requirement, if compliance is required under tax laws and regulations of Relevant Taxing Jurisdiction to establish entitlement to a partial or complete exemption from such Taxes (including, but not limited to, the requirement to provide an applicable Internal Revenue Service Form W-8 (with any required attachment), or any subsequent version thereof or successor thereto);
(ii) any Taxes imposed by reason of the Holder or beneficial owner:
(A) owning or having owned, directly or indirectly, actually or constructively, 10% or more of the total combined voting power of all classes of the Issuer’s stock, as described in section 871(h)(3) of the Internal Revenue Code,
(B) being a bank receiving interest as described in section 881(c)(3)(A) of the Internal Revenue Code, or
(C) being a controlled foreign corporation that is related to the Issuer or any Guarantor by stock ownership for U.S. federal income tax purposes;
(iii) any Taxes that would not have been so imposed but for the presentation by the Holder or the beneficial owner thereof of such Note for payment of principal on a date more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, which payment of the full amount having been so received, Note is duly provided for and notice to that effect shall have been is given to the Holders such Holders, whichever occurs later, except to the extent that the such Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering presenting such Note for payment on any day date during the applicable such 30-day period;
(biv) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, salesales, transfer, personal property property, capital gains, wealth or other similar tax, assessment or other governmental chargeTaxes;
(ev) except in the case of the winding up of the Company any Taxes payable otherwise than by deduction or any Guarantor, any withholding from a payment on such Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made note Guarantee;
(vi) any Taxes payable by or on behalf of a Holder that is not the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment the Note, or that is a fiduciary, partnership, limited liability company or other similar entity, but, in each case, only to the extent that a beneficial owner, a beneficiary or settlor with respect to such fiduciary or beneficial owner member or partner of such partnership, limited liability company or similar entity would not have been entitled to any Additional Amounts the payment of an additional amount had such beneficiary beneficial owner, beneficiary, settlor, member or settlor partner received directly its beneficial or beneficial owner been distributive share of the Holderpayment;
(gvii) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is any Taxes required to be withheld by any paying agent from any payment on any Note, if such payment can be made pursuant to the Luxembourg law of 23 December 2005without such withholding by at least one other paying agent;
(hviii) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of any Taxes which are payable otherwise than by withholding or deduction from a payment made imposed under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code (or any amended or successor provision that is substantively comparable), any current or future regulations thereunder or official interpretations interpretation thereof, any agreement entered into pursuant to Section 1471(b) or an intergovernmental agreement between of the United States and another jurisdiction facilitating the implementation thereof (Internal Revenue Code or any fiscal or regulatory legislation, rules rule or practices implementing such an practice adopted pursuant to any intergovernmental agreement, treaty or convention entered into in connection with the implementation of the foregoing;
(ix) any Taxes imposed under or in connection with the 2021 Dutch Withholding Tax Act (any such withholding or deductionWet bronbelasting 2021) with respect to a Holder, or, where applicable, a “FATCA Withholding”beneficiary of the Notes that is an entity that is related (gelieerd) to the Issuer within the meaning of the 2021 Dutch Withholding Tax Act; or
(x) any combination of items (i). Neither , (ii), (iii), (iv), (v), (vi), (vii), (viii) and (ix).
(c) For purposes of this Section 2.14, the Company nor acquisition, ownership, enforcement, or holding of or the receipt of any payment with respect to a Note will not constitute a connection (x) between the Holder or beneficial owner and the United States or (y) between a fiduciary, settlor, beneficiary, member, partner or shareholder or other personequity owner of, including any Guarantoror a person having a power over, such Holder or beneficial owner if such Holder or beneficial owner is an estate, a trust, a limited liability company, a partnership, a corporation or other entity and the United States.
(d) Any reference in this Indenture or in the Notes to principal or interest or other payment on the Notes shall be deemed to refer also to Additional Amounts that may be payable under the provisions of this Section 2.14.
(e) Except as specifically provided under this Section 2.14, the Issuer will not be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes tax, duty, assessment or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay other governmental charge imposed by any present or future stamp, court or documentary taxes government or any other excise political subdivision or property taxes, charges taxing authority of or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The foregoing obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, indenture and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer a Payor is organized or any Guarantor is incorporated, engaged in business for tax purposes or otherwise considered to be a resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Organon & Co.)
Additional Amounts. All After the occurrence of a Non-U.S. Domicile Transaction with respect to the Issuer or any successor in interest to the Issuer, all payments made by or the successor Person resulting from the Non-U.S. Domicile Transaction (each such successor Person resulting from a Non-U.S. Domicile Transaction, a “non-U.S. Payor”) on behalf of the Company or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (including without limitationcollectively, penalties, interest and any other liability with respect thereto) (“Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of of:
(1) any jurisdiction in which (other than the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United States or any political subdivision or governmental authority thereof or therein or any jurisdiction by having power to tax) from or through which payment on the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(each2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that makes a payment on the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), unless the Company or will at any Guarantor (or any Paying Agent) is time be required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment payments made under or with respect to the Notes Notes, including payments of principal, redemption price, interest or the Subsidiary Guaranteespremium, if any, the Company or any such Guarantor non-U.S. Payor will pay to each Holder of the Notes that are outstanding on the date of the required payment, (together with such payments) such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by such the Holder (including the Additional Amounts) after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amount such Holder amounts that would have been received if in respect of such Taxes had not been withheld payments on the Notes in the absence of such withholding or deducteddeduction; provided, provided however, that no such Additional Amounts will be payable with respect to any Notefor or on account of:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) any Taxes that would not have been so imposed or levied but for the date on which such payment first became due and (2) if the full amount payable has not been received by existence of any present or on behalf of former connection between the relevant Holder (or the beneficial owner on between a fiduciary, settlor, beneficiary, partner, member or prior to such due dateshareholder of, or possessor of power over, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder orrelevant Holder, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder is an estate, nominee, trust, partnership, limited liability company or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or beneficial owner any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by a statutethe applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all from, or part reduction in the rate of deduction or withholding of, any such tax, assessment or governmental chargeTaxes);
(c3) held by or on behalf of a Holder or the beneficial owner who is liable for any Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under on or with respect to the Notes;
(j4) when such withholding any estate, inheritance, gift, sales, excise, transfer, personal property or deduction similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(kfor payment) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”)relevant Note to, or otherwise imposed pursuant to accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations thereunder or official interpretations thereof) or an , any agreements entered into pursuant thereto, and any intergovernmental agreement between agreements implementing the United States and another jurisdiction facilitating the implementation thereof foregoing (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company legislation or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect other official guidance relating to such payment intergovernmental agreements); or
(unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in 7) any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders combination of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture
Additional Amounts. All payments made by or of principal of, premium (if any) and interest on behalf of the Company or any Guarantor New Notes and all payments under or with respect to the Notes or the Subsidiary Note Guarantees will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) charges of whatever nature imposed or levied by or on behalf of within Perú or any jurisdiction in which the Company Issuer or any Guarantor (including applicable Guarantor, or any successor entities) of the Issuer or any applicable Guarantor, wherein any successor assumes the obligations of the New Notes and this Indenture following a merger, consolidation or transfer, lease or conveyance of substantially all of the predecessors assets, is then organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein or any jurisdiction by or through which payment is made therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless the Company such withholding or any Guarantor (or any Paying Agent) deduction is required to withhold by law or deduct Taxes under by regulation or governmental policy having the laws force of law. In the event that any such withholding or deduction is so required, the Issuer or the applicable Guarantor, as the case may be, will make such deduction or withholding, make payment of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is amount so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect withheld to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor appropriate governmental authority and will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that will result in receipt by the net amount Holders of such amounts as would have been received by such Holder (including the Additional Amounts) after Holders had no such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deductedrequired, provided except that no Additional Amounts will be payable with respect to any Notepayable:
(a) surrendered by for or on account of:
(i) any withholding or deduction that is imposed on payments of interest (as opposed to any withholding or deduction that is imposed on the proceeds of a redemption of a New Note) at a rate that exceeds 4.99% in the aggregate to a Holder that does not qualify for the Peruvian income tax withholding rate of 4.99% (the “4.99% Rate”) on payments of interest on the New Notes, unless failure to qualify for the 4.99% Rate is due to a change in, or amendment to, the laws (or any regulations or rulings promulgated thereunder) of Perú or Cyprus affecting taxation and such change or amendment occurs after the Holder acquires the New Notes (however, for the avoidance of doubt, the Issuer will, subject to the conditions below, be obligated to pay Additional Amounts in such case with respect to the amounts that are deducted or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf withheld in respect of the relevant Holder or first 4.99% of the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day periodinterest payment);
(bii) if any tax, duty, assessment or other governmental charge is that would not have been imposed but for:
(1) the existence of any present or withheld by reason of former connection between the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide informationof such New Note or Note Guarantee, documents or other evidence concerning as the nationalitycase may be, residence, identity or connection with and the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary GuaranteeJurisdiction, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident of such Relevant Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein, other than merely holding such New Note or the receipt of payments thereunder or under the Note Guarantee;
(d2) the presentation of such New Note (where presentation is required) more than thirty (30) days after the later of the date on account which the payment of the principal of, premium, if any, or interest on, such New Note became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had presented such Note for payment on any day within such thirty (30) day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Issuer or any Guarantor addressed to the Holder or beneficial owner, as the case may be, to provide information concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction, if and to the extent that due and timely compliance with such request under applicable law, regulation or administrative practice or treaty would have reduced or eliminated any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such New Note (where presentation is required) for payment in the Relevant Jurisdiction, unless such New Note could not have been presented for payment elsewhere;
(iii) any estate, inheritance, gift, sale, transfer, excise or personal property or other similar tax, assessment or other governmental charge;
(eiv) except in any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) or interest on the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of FranceNew Notes;
(fv) as a result any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal, premium (if any) or interest on the New Note, if such tax, assessment or other governmental charge results from the presentation of such New Note for payment (where presentation is required) and the payment can be made without such withholding or deduction by the presentation of such New Note for payment to at least one other paying agent; or
(vi) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (ai), (bii), (ciii), (div) or and (ev) or of this Section 2.12(a).
(b) with respect to any payment made by or on behalf of the Company principal of, or premium, if any, or interest on, such New Note or any Guarantor in respect of payment under any Note or Subsidiary Guarantee to any a Holder, if the Holder who is a fiduciary or fiduciary, partnership or person other than the sole beneficial owner of such payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or another beneficial owner who would not have been entitled to any such Additional Amounts had such beneficiary or settlor that beneficiary, settlor, partner, or beneficial owner been the Holder;Holder thereof.
(gc) such withholding or deduction Whenever there is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and mentioned in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) context the payment of principal (of, and premiumany premium or interest on, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest any New Note or (d) under any other amount payable on or with respect to any of the Notes or the Subsidiary GuaranteesNote Guarantee, such mention is will be deemed to include mention of the payment of Additional Amounts provided for in this section Indenture to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(d) The Company or Issuer intends to withhold Peruvian taxes from interest payments on the New Notes at a Guarantorrate of 4.99% and to pay Additional Amounts, subject to the conditions of this Section 2.12, with respect thereto for so long as the case may be, New Notes are held by DTC or its nominee.
(e) The Issuer will pay provide the Trustee with documentation reasonably satisfactory evidencing the payment of taxes in respect of which the Issuer has paid any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in Additional Amounts. Copies of such documentation will be made available to the United States, applicable recipients upon written request therefor to the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration Trustee.
(f) The obligation of the Notes or on Issuer to pay Additional Amounts will survive the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations repayment of the Company New Notes and the sale or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge transfer of this Indenture or any transfer by a holder the New Notes (or beneficial owner of its notes, and will apply, mutatis mutandis, to interests therein) by any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereininvestor.
Appears in 1 contract
Sources: Indenture (Camposol Holding PLC)
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor under on or with respect to the Notes or the Subsidiary Guarantees will pursuant to this Indenture shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and Taxes imposed by any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Canadian Taxing Jurisdiction”)Authority, unless the Company required by law or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authorityCanadian Taxing Authority. If the Company or any Guarantor (or any Paying Agentother payor) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant any Canadian Taxing Jurisdiction Authority from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, it shall:
(1) make such withholding or deduction;
(2) remit the full amount deducted or withheld to the relevant government authority in accordance with applicable law;
(3) pay such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder each holder after this withholding or deduction (including the any deduction or withholding for Additional Amounts) after such withholding or deduction will not be less than the amount such Holder the holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b4) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment furnish to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishHolders, within 60 30 days after the date the payment of any Taxes is due pursuant to applicable lawdue, to the Trustee, certified copies of tax receipts evidencing such payment by the Company;
(5) indemnify and hold harmless each Holder (other than an Excluded Holder, as defined in paragraph (b) below) for the amount of (a) any Taxes paid by each such Holder as a result of payments made on or with respect to the extent received Notes, (b) any liability (including penalties, interest and expenses) arising from or with respect to such payments and (c) any Taxes imposed with respect to any reimbursement under the relevant tax authorities foregoing clauses (a) or (b), but excluding any such Taxes that are in the usual course or as generally providednature of Taxes on net income, taxes on capital, franchise taxes, net worth taxes and similar taxes; and
(6) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At at least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior payment, deliver to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date.
(b) Notwithstanding the provisions of paragraph (a) above, no Additional Amounts shall be payable to a person (an “Excluded Holder”) in respect of a payment made to such person under or with respect to a Note:
(1) if such person is subject to such Taxes by reason of its being connected with Canada or any province or territory thereof otherwise than by the mere acquisition, holding or disposition of Notes or the receipt of payments thereunder or enforcement of rights thereunder;
(2) if such person waives its right to receive Additional Amounts;
(3) if the Company does not deal at arm’s length, within the meaning of the Income Tax Act (Canada), with such person at the time of such payment; or
(4) if the Company does not deal at arm’s length, within the meaning of the Income Tax Act (Canada), with another person to whom the Company has an obligation to pay an amount in respect of the Notes. Whenever in this Indenture there is mentionedAny reference, in any contextcontext in this Indenture, (a) to the payment of principal (and principal, premium, if any), (b) purchase prices in connection with a purchase redemption price, Change of the NotesControl Amount, (c) offer price and interest or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesNote, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereofpayable. The Company or a Guarantor, as the case may be, will shall pay any present or future stamp, court court, documentary or documentary taxes or any other excise or property similar taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue execution, delivery or registration of the Notes of, or on the enforcement of any payments with respect to the Notesrights under, any Subsidiary Guarantee, the this Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above)document. The obligations of the Company or any Guarantor described in under this Section 4.19 4.20 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer or any Guarantor Company, is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department organized or any political subdivision or taxing authority or agency thereof or therein. It is understood for purposes of this Section 4.20 that the determination of Additional Amounts shall be made at the beneficial ownership level.
Appears in 1 contract
Sources: Indenture (Quebecor Media Inc)
Additional Amounts. All payments made by (a) The Company, Avadel or on behalf of any successor to the Company or any Guarantor Avadel under or with respect to this Indenture, the Guarantee and/or the Notes (each, an “Obligor”) shall, subject to the exceptions and limitations set forth below, pay to a Holder of any Note such additional amounts (the “Additional Amounts”) as may be necessary in order that every net payment by any Obligor or a Paying Agent of the Subsidiary Guarantees will be made free principal of (including, if applicable, the Fundamental Change Repurchase Price and clear the Redemption Price) and interest on such Note, any delivery of cash and/or ADSs or other Reference Property upon exchange of such Note, and without any other amounts payable on such Note, after withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount provided for herein and in the Notes to be then due and payable under the Notes had no such Holder would have received if such Taxes had not withholding or deduction been withheld or deducted, made; provided that no the obligation to pay Additional Amounts will be payable with respect to any Noteshall not apply:
(ai) surrendered by the Holder to any present or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any future tax, assessment or other governmental charge is that would not have been so imposed but for:
(A) the existence of any present or withheld by reason former connection between the Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of the failure to comply Holder, if the Holder is an estate, a trust, a partnership, a limited liability company or a corporation) and a Relevant Jurisdiction and its possessions, including, without limitation, the Holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident of a Relevant Jurisdiction or being or having been engaged in a trade or business or present in a Relevant Jurisdiction or having, or having had, a permanent establishment in a Relevant Jurisdiction, or
(B) the presentation by the Holder orof any Note, if differentwhere presentation is required, for payment or delivery on a date more than 30 days after the beneficial owner date on which payment or delivery became due and payable or the date on which payment or delivery thereof is duly provided for, whichever occurs later;
(ayant-droitii) of the Note with a request addressed to such Holder any estate, inheritance, gift, sales, transfer, capital gains, excise or beneficial owner to provide information, documents personal property tax or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such any similar tax, assessment or governmental charge;
(ciii) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of to any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who charge that is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under payments on or with in respect to the Notesof any Note;
(jiv) when to any tax, assessment or other governmental charge that would not have been imposed but for the failure to comply with certification, information or other reporting requirements concerning the nationality, residence or identity of the Holder or beneficial owner of that Note, if compliance is required by statute or by regulation of a Relevant Jurisdiction as a precondition to relief or exemption from the tax, assessment or other governmental charge, and proper notice has been sent to the Holder;
(v) to any tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of the principal of (including the Fundamental Change Repurchase Price and the Redemption Price, if applicable), or interest on, any Note, or the delivery of cash and/or ADSs or other Reference Property upon exchange of such Note, if such tax, assessment or other governmental charge results from the presentation of any Note for payment or delivery and the payment or delivery, as the case may be, can be made without such withholding or deduction is required to be made by reason of the Holder or the beneficial owner presentation of the Note concurrently being a shareholder of the Company for payment or of any Guarantor; ordelivery by at least one other Paying Agent;
(kvi) Any combination of items (a) through (j) above. Notwithstanding to any other provision of this Indenture, all amounts to be paid on the Notes by withholding or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections sections 1471 through 1474 of the Code (or any regulations thereunder amended or successor provisions), any regulations, rules, practices or agreements entered into pursuant thereto, official interpretations thereof) thereof or any law implementing an intergovernmental agreement between approach thereto; or
(vii) in the United States and another jurisdiction facilitating case of any combination of the implementation thereof items listed in clauses (i) through (vi) above. Nor will Additional Amounts be paid with respect to any payment or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deductiondelivery on a Note to a Holder who is a fiduciary, a “FATCA Withholding”). Neither partnership, a limited liability company or other than the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect sole beneficial owner of FATCA Withholding. The Company that payment or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (delivery to the extent received from that payment or delivery would be required by the relevant tax authorities laws of a Relevant Jurisdiction to be included in the usual course income, for tax purposes, of a beneficiary or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or settlor with respect to the Notes fiduciary, a member of that partnership, an interest holder in a limited liability company or a beneficial owner who would not have been entitled to the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after had that beneficiary, settlor, member or beneficial owner been the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), Holder.
(b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section In addition to the extentforegoing, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as each Obligor shall also pay and indemnify the case may be, will pay Holder of any Note for any present or future stamp, issue, registration, value added, court or documentary taxes taxes, or any other excise or property taxes, charges or similar levies that arise or taxes (including penalties, interest and any other reasonable expenses related thereto) which are levied by any Relevant Jurisdiction (“Transfer Taxes”) on the execution, delivery, registration or enforcement of any of the Notes, the Indenture or any other document or instrument referred to therein or the receipt of payments with respect thereto. For the avoidance of doubt, the indemnification provided in this paragraph shall not include any Transfer Taxes arising from the transfer of Notes in the United States, the Republic of France ordinary course.
(c) If any Obligor is required to make any deduction or in any jurisdiction in which a Paying Agent is located withholding from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, such Obligor shall deliver to the Trustee official tax receipts evidencing the remittance to the relevant tax authorities of the amounts so withheld or deducted.
(d) Any reference in this Indenture or the Notes in any Subsidiary Guaranteecontext to the delivery of cash or ADSs or other Reference Property upon exchange of any Note or the payment of principal of (including the Fundamental Change Repurchase Price and the Redemption Price, the Indenture if applicable) and interest on, any Note or any other documents related thereto (limitedamount payable with respect to such Note, shall be deemed to include Additional Amounts, unless the context requires otherwise, that are, were or would be payable in case respect of Taxes attributable that amount under the obligations referred to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will 4.07.
(e) The foregoing obligations shall survive any termination, defeasance termination or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinIndenture.
Appears in 1 contract
Additional Amounts. All payments made (a) The Company hereby agrees that any amounts to be paid by or on behalf of the Company or any Guarantor under or with respect to the Notes each Security shall be paid without deduction or the Subsidiary Guarantees will be made free withholding for any and clear of all present and without withholding or deduction for or on account of any present or future taxtaxes, dutylevies, levy, impost, assessment imposts or other governmental charge (including without limitationcharges whatsoever imposed, penaltiesassessed, interest and any other liability with respect thereto) (“Taxes”) imposed levied or levied collected by or on behalf for the account of any jurisdiction in which (i)(x) the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes Republic of Panama or any political subdivision or taxing authority thereof or therein (y) the jurisdiction of incorporation (other than the United States or any political subdivision or taxing authority thereof) of a successor entity to the Company pursuant to Section 8.1, to the extent that such taxes, levies, imposts or other governmental charges first become applicable as a result of such successor entity becoming the obligor on the Securities, or (ii) any other jurisdiction by (other than the United States or any political subdivision or taxing authority thereof) from or through which payment any amount is made paid by the Company hereunder or where it is resident or maintains a place of business or permanent establishment (each, each jurisdiction described in Clauses (i) and (ii) above is referred to herein as a “Relevant Taxing Jurisdiction” and such taxes, levies, imposts or other governmental charges are referred to as “Taxes”), unless the Company withholding or deduction of such Tax is compelled by laws of the Republic of Panama or any Guarantor other applicable Taxing Jurisdiction. If any deduction or withholding of any Taxes (other than Excluded Taxes, as defined below) is ever required by the Republic of Panama or any other Taxing Jurisdiction, the Company shall (subject to compliance by the Holder or beneficial owner of each Security with any applicable administrative requirements) pay such additional amounts (“Additional Amounts”) required to make the net amounts paid to each Holder of such Security or the Trustee pursuant to the terms of this Indenture or the Securities, after such deduction or withholding, equal to the amounts of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, to which such Holder or the Trustee is entitled. However, the Company shall not be required to pay Additional Amounts in respect of the following Taxes (“Excluded Taxes”):
(1) any present or future Taxes imposed, assessed, levied or collected as a result of the Holder or beneficial owner of a Security (i) being organized under the laws of, or otherwise being or having been a domiciliary, national or resident of, (ii) being engaged or having been engaged in a trade or business in, (iii) having or having had its principal office located in, (iv) maintaining or having maintained a permanent establishment in, (v) being or having been physically present in, or (vi) otherwise having or having had some connection (other than the connection arising solely from holding or owning such Security, or collecting principal and interest, if any, on, or the enforcement of, such Security) with the Republic of Panama or any other applicable Taxing Jurisdiction;
(2) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was presented more than thirty days after the date the relevant payment is first made available for payment to the Holder or beneficial owner;
(3) any present or future Taxes imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any Paying Agentrelated law or administrative practices or procedures) is required implementing the foregoing or any agreements entered into pursuant to withhold or deduct Taxes under the laws current Section 1471(b)(1) of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor Code (or any Paying Agentamended or successor version described above);
(4) is so required to withhold any present or deduct future Taxes payable other than by deduction or withholding from payments under, or with respect to, any amount for Security;
(5) any present or on account of future Taxes imposed in connection with a Security presented for payment (where presentation is permitted or levied required for payment) by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner of the Security to provide informationthe extent such Taxes could have been avoided by presenting the relevant Security to, documents or otherwise accepting payment from, another Paying Agent;
(6) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the failure to make any certification, identification or other evidence report concerning the nationality, residence, identity or connection with the Relevant Republic of Panama or any other applicable Taxing Jurisdiction of such the Holder or beneficial owner which is required of such Security or imposed by claim for relief or exemption, if making such a statutecertification, treatyidentification, regulation other report or administrative practice claim is, under the laws, rules or regulations of the Relevant Taxing Jurisdiction as any such jurisdiction, a precondition condition to relief or exemption from all or part of such tax, assessment or governmental charge;Taxes;
(c7) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment Tax or other governmental charge;duty; or
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of 8) any combination of Clauses (a)1) through (7) above; provided further, (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor that no such Additional Amounts shall be payable in respect of any Note or Subsidiary Guarantee to Security held by (x) any Holder who or beneficial owner that is a fiduciary or partnership or other than not the sole beneficial owner of such payment Security, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner owner, partner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to any such Additional Amounts had such beneficiary the beneficiary, settlor, beneficial owner, partner or settlor or beneficial owner member been the Holder;
(g) direct holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established inSecurity, or (y) paid or accrued to any Holder that is not a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A resident of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect United States to the Notes;
(j) when extent that, had such withholding or deduction is required to be made by reason Holder been a resident of the Holder United States and eligible (taking into account any applicable limitation on benefits article or similar provision) for the beneficial owner of the Note concurrently being a shareholder of the Company or benefit of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement double taxation treaty between the United States and another jurisdiction facilitating the implementation thereof applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security, such Holder would not have been entitled to such Additional Amounts, or (z) any Holder that is a resident of the United States but that is not eligible for the benefit of any double taxation treaty between the United States and the applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security (but only to the extent the amount of such deduction or any fiscal or regulatory legislation, rules or practices implementing withholding exceeds that which would have been required had such an intergovernmental agreement) (any such withholding or deduction, Holder of a “FATCA Withholding”Security been so eligible and made all relevant claims). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will successor to the Company, as the case may be, agrees to indemnify and hold harmless each Holder of a Security and upon written request reimburse each Holder for the amount of (i) any Taxes levied or imposed and paid by such Holder of a Security (other than Excluded Taxes) as a result of payments made with respect to such Security, (ii) any liability (including penalties, interest and expenses) arising therefrom with respect thereto, and (iii) any Taxes (other than Excluded Taxes) with respect to payment of Additional Amounts or any reimbursement pursuant to this sentence, in each case, to the extent not otherwise reimbursed by the payment of any Additional Amount and not excluded from the requirement to pay Additional Amounts, as described above. The Company or any successor to the Company, as the case may be, shall also (i) make such withholding or deduction to the extent required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishor any successor to the Company, as the case may be, shall furnish the Trustee within 60 30 days after the date the payment of any such Taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts (to evidencing the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available successor to the Holders upon requestCompany, as the case may be, or other evidence of such payment reasonably satisfactory to the Trustee. It is understood, however, that the Trustee is under no obligation to request such certified copies of tax receipts evidencing the payment. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)those payments, the Company will shall deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and stating the amount so amounts that will be payable and will set setting forth such any other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes Securities on the payment date. Whenever in this Indenture or any Security there is mentioned, in any context, (a) the payment of principal (and the principal, premium, if any), (b) purchase prices or interest, or sinking fund or analogous payment, if any, in connection with a purchase respect of the Notes, (c) such Security or overdue principal or overdue interest or (d) any other amount payable on overdue sinking fund or with respect to any of the Notes or the Subsidiary Guaranteesanalogous payment, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section herein to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as thereof pursuant to the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic provisions of France or this Section and express mention thereof in any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which a Paying Agent those provisions hereof where such express mention is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto not made (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) aboveif applicable). The obligations of the Company or (and any Guarantor described in successor entity to the Company pursuant to Section 8.1) under this Section 4.19 will 10.5 shall survive any termination, defeasance or satisfaction and discharge the termination of this Indenture and the payment of all amounts under or with respect to the Securities.
(b) Each Holder of a Security, by acceptance of such Security, agrees that, with reasonable promptness after receiving written notice from the Company to the effect that such H▇▇▇▇▇ is eligible for a refund in respect of Taxes actually paid by the Company pursuant to this Section 10.5, such Holder will sign and deliver, as reasonably directed by the Company, any transfer form provided to such Holder by the Company to enable such Holder to obtain a refund in respect of such Taxes; and if such Holder thereafter receives such refund in respect of such Taxes, such Holder will promptly pay such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority). If a Holder applies for a refund of such Taxes prior to a request by the Company to apply for such a refund, the Holder will, upon receipt of a request by the Company to apply for, or to turn over the proceeds of, any such refund, pay any such refund to the Company (together with interest, if any, received by such Holder from the relevant taxing authority), promptly upon receipt of such refund. The Company shall pay all reasonable out-of-pocket expenses incurred by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction Holder in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which connection with obtaining such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinrefund.
Appears in 1 contract
Sources: Indenture (Carnival PLC)
Additional Amounts. All payments made by or on behalf the Issuer in respect of this Note and the Indenture and by the Guarantor in respect of the Company or any Guarantor under or with respect to Guarantee and the Notes or the Subsidiary Guarantees Indenture will be made free and clear of and without deduction or withholding or deduction for or on account of any present or future taxtaxes, dutyduties, levyassessments, impost, assessment fees or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) charges (“Taxes”) imposed or levied by or on behalf of Luxembourg, the Russian Federation, any jurisdiction in from or through which the Company or any Guarantor (including any successor entities) a payment is then organized or resident for tax purposes made, or any political subdivision or taxing authority thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law. If the Company or any Guarantor (or any Paying Agent) Issuer is required to withhold make any withholding or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount deduction for or on account of any Taxes from any payment made under or with respect to this Note, or if the Guarantor is required to make any withholding or deduction for or on account of any Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesGuarantee, the Company or any such Guarantor Issuer (or, in respect of the Guarantee, the Guarantor) will pay as additional interest to each the Holder of the Notes that are outstanding on the date of the required payment, this Note such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that every net payment made by the net amount received Issuer on this Note or by such Holder (including the Additional Amounts) Guarantor on the Guarantee after such deduction or withholding for or deduction on account of any Taxes will not be less than the amount such Holder would have received if such Taxes had then due and payable on this Note or the Guarantee. The foregoing obligation to pay Additional Amounts, however, will not been withheld or deducted, provided that no Additional Amounts will be payable with respect apply to any (i) Taxes that would not have been imposed but for the existence of any present or former connection between the Holder of this Note and any Taxing Jurisdiction other than the mere receipt of such payment or the ownership or holding of this Note:
; (aii) surrendered Taxes that would not have been imposed but for the presentation by the Holder or the beneficial owner thereof of this Note for payment of principal on a date more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on whichwhich payment thereof is duly provided for, the full amount having been so received, notice whichever occurs later; (iii) Taxes required to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed be deducted or withheld by reason any Paying Agent from a payment on this Note or the Guarantee, if such payment can be made without deduction or withholding by any other Paying Agent; (iv) Taxes that would not have been imposed but for the failure of the failure Holder to comply by with the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a Issuer’s written request addressed to such the Holder or beneficial owner at least 60 days prior to the relevant payment to provide informationinformation with respect to any reasonable certification, documents documentation, information or other evidence reporting requirement concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of the Holder of such Holder or beneficial owner which is Note; (v) Taxes imposed on a payment to an individual that are required or imposed by a statute, treaty, regulation or administrative practice to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusion of the Relevant Taxing Jurisdiction as a precondition to exemption from all ECOFIN Council meeting of 26-27 November 2000 or part of such tax, assessment any law implementing or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Notecomplying with, or the receipt of payments made by or on behalf of the Company or any Guarantor introduced in respect thereof or any Subsidiary Guarantee, including, without limitationorder to conform to, such Holder Directive; or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(dvi) on account of any estate, inheritance, gift, sale, transfer, personal property sale or other similar excise tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture (Mobile Telesystems Ojsc)
Additional Amounts. All payments made by or on behalf The Company will pay to Holders of the Company Securities such Additional Amounts as may be necessary in order that every net payment of principal, premium, if any, Change of Control Purchase Price, Redemption Price or interest in respect of any Guarantor under Securities, after deduction or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge imposed upon or as a result of such payment by (including without limitationi) Bermuda or Ireland or any political subdivision or governmental authority thereof or therein having power to tax, penalties(ii) any jurisdiction from or through which payment is made, interest and or any political subdivision or governmental authority thereof or therein having the power to tax, or (iii) any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or otherwise considered to be a resident for tax purposes purposes, or any political subdivision or governmental authority thereof or therein or any jurisdiction by or through which payment is made (eachhaving the power to tax, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount provided for in such Holder would have received if such Taxes had not been withheld or deductedSecurities to be then due and payable; provided, provided however, that no the foregoing obligation to pay Additional Amounts will be payable not apply
(a) with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof Security presented for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by by, or on behalf of, a Holder who is liable for such taxes, duties, assessments or other governmental charges in respect of such Securities by reason of such Holder being a resident, domiciliary or national of, or engaging in business or maintaining a permanent establishment or being physically present in, a Relevant Taxing Jurisdiction, or any political subdivision or taxing authority thereof or therein, or other- wise having some connection with a Relevant Taxing Jurisdiction, or any political subdivision or taxing authority thereof or therein, other than the relevant Holder or the beneficial owner on or prior to mere holding of such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day periodSecurities;
(b) if to any tax, assessment or other governmental charge is which would not have been imposed or withheld by reason of but for the failure fact that such Holder (i) presented its Securities for payment more than 30 days after the Relevant Date, except to comply by the extent that the Holder or, would have been entitled to Additional Amounts if different, it had presented such Securities for payment on any day within the beneficial owner 30-day period or (ayant-droitii) of the Note with a request addressed to presented such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered Securities for payment in the Republic of France;
(f) as a result of any combination of (a)Relevant Taxing Jurisdiction, (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of unless such payment to the extent that a beneficiary or settlor or beneficial owner would Securities could not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holderpresented for payment elsewhere;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture (Elan Corp PLC)
Additional Amounts. All payments made by or on behalf After the occurrence of a Non-U.S. Domicile Transaction with respect to the Company or any Guarantor under successor in interest to the Company, all payments made by the successor Person resulting from the Non-U.S. Domicile Transaction (each such successor Person resulting from a Non-U.S. Domicile Transaction, a “non-U.S. Payor”) on or with respect to the Notes or the Subsidiary Guarantees Securities will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (including without limitationcollectively, penalties, interest and any other liability with respect thereto) (“Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of of: (1) any jurisdiction in which (other than the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United States or any political subdivision or governmental authority thereof or therein or any jurisdiction by having power to tax) from or through which payment on the Securities is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or (each2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that makes a payment on the Securities is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), unless the Company or will at any Guarantor (or any Paying Agent) is time be required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment payments made under or with respect to the Notes Securities, including payments of principal, redemption price, interest or the Subsidiary Guaranteespremium, if any, the Company or any such Guarantor non-U.S. Payor will pay to each Holder of the Notes that are outstanding on the date of the required payment, (together with such payments) such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so in order that the net amount amounts received in respect of such payments by such the Holder (including the Additional Amounts) after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amount such Holder amounts that would have been received if in respect of such Taxes had not been withheld payments on the Securities in the absence of such withholding or deducteddeduction; provided, provided however, that no such Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder for or the beneficial owner thereof for payment of principal more than 30 days after the later of on account of: (1) any Taxes that would not have been so imposed or levied but for the date on which such payment first became due and (2) if the full amount payable has not been received by existence of any present or on behalf of former connection between the relevant Holder (or the beneficial owner on between a fiduciary, settlor, beneficiary, partner, member or prior to such due dateshareholder of, or possessor of power over, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder orrelevant Holder, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder is an estate, nominee, trust, partnership, limited liability company or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with corporation) and the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner including being or having been a citizen or resident thereof or being national of, or having been present carrying on a business or engaged in a trade or business therein or having had maintaining a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled being physically present in, a non-cooperative State the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A holding of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder Securities or the beneficial owner of the Note concurrently being a shareholder of the Company enforcement or receipt of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.;
Appears in 1 contract
Sources: Indenture (Broadcom Inc.)
Additional Amounts. (a) All payments made by or on behalf of the Company Issuers or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees Note Guaranties will be made free and clear of and without withholding or deduction for for, or on account of of, any present or future tax, duty, levy, impost, assessment or other governmental charge of whatever nature (including without limitation, penalties, additions to tax and interest and any other liability with respect related thereto) (hereinafter “Taxes”) unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of any jurisdiction in which the Company Company, an Issuer or any Guarantor (including any successor entitiesentity) is then organized incorporated, organized, carrying on a business through a branch, agency or permanent establishment or is treated as resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of the Company, an Issuer or any Guarantor (including any successor entity) under or with respect to the Notes or Note Guaranties or any political subdivision thereof or therein (each a Relevant Taxing Jurisdiction “Specified Tax Jurisdiction” and such Taxes, “Indemnified Taxes”), will at any time be required to be made from any payment payments made under or with respect to the Notes or the Subsidiary GuaranteesNote Guaranties, the Company Company, an Issuer, the relevant Guarantor or any such Guarantor paying agent, as applicable, will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received in respect of such payments by such Holder (including each holder and beneficial owner of the Additional Amounts) Notes after such withholding or deduction (including any withholding or deduction from Additional Amounts) will not be less than the amount such Holder holder or beneficial owner of the Notes would have received if such Indemnified Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note. Indemnified Taxes do not include:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except any Taxes to the extent that the Holder or the beneficial owner such Taxes would not have been entitled to such Additional Amounts on surrendering such Note so imposed but for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder each holder or beneficial owner to provide informationof the Notes (or a fiduciary, documents settlor, beneficiary, partner of, member or other evidence concerning shareholder of, or possessor of power over, such holder or beneficial owner of the nationalityNotes, residenceif such holder or beneficial owner of Notes is an estate, identity a trust, a nominee, a partnership, a limited liability company or a corporation) having any present or former connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary GuaranteeSpecified Tax Jurisdiction, including, without limitation, such Holder holder or beneficial owner of the Notes (or such fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of power over such holder or beneficial owner of the Notes) being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business or present therein or having, or having had had, a permanent establishment thereintherein (other than mere acquisition, ownership, holding, enforcement, exercise of rights or receipt of payment in respect of the Notes or the Note Guaranties);
(d2) on account of any estate, inheritance, gift, salesales, excise, transfer, capital gains, personal property Tax or other similar tax, assessment or other governmental chargeTaxes;
(e3) except in any Taxes to the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) extent such Taxes are imposed as a result of the failure of the holder or beneficial owner of the Notes to complete, execute and deliver to the Company, the Issuers, the relevant Guarantor, the paying agent or other applicable withholding agent, as applicable, any combination form or document that such holder or beneficial owner legally can complete, execute, and deliver, that may be required by law (or by reason of (a), (b), (c), (dadministration of such law) or tax treaty and that is reasonably requested in writing by the Company, the Issuers or the relevant Guarantor in order to enable the Company, the Issuers, the relevant Guarantor, the paying agent or other applicable withholding agent to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a lesser amount, which form or document will be delivered within 30 days of a written request therefor by the Company, the Issuers or the relevant Guarantor;
(e4) any Taxes to the extent such Taxes would not have been so imposed but for the holder or beneficial owner of the Notes having presented a Note for payment (in cases in which presentation is required) more than 30 days after the date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder or beneficial owner would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);
(5) any Taxes to the extent such Taxes are payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the HolderGuarantee;
(g6) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections sections 1471 through 1474 of the Code (or Code, any regulations thereunder or official interpretations thereof) or an , any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction), a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding agreement entered into pursuant to section 1471(b)(1) of the Code;
(7) any Tax imposed by the United States or deduction and remit the full amount deducted a political subdivision thereof or withheld therein; and
(8) any combination of items (1) through (7) above.
(b) For avoidance of doubt, any reference in this Indenture to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable lawamounts based upon the principal amount of the Notes or of principal, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company interest or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under other amount payable under, or with respect to to, the Notes or the Subsidiary Guarantees is due and payableNote Guaranties, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section as described above to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(c) The Company Issuers or a the relevant Guarantor, as the case may beapplicable, will also pay any present or future stamp, issue, registration, court or documentary taxes or any other excise or property taxes, charges or similar levies (including penalties, additional amounts and interest related thereto) that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located Specified Tax Jurisdiction from the initial issue execution, delivery, enforcement or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guaranteethe Note Guaranties, the this Indenture or any other documents related thereto document or instrument in relation thereof.
(limitedd) If the Company, an Issuer or any Guarantor becomes obligated to pay Additional Amounts, they will deliver to the Trustee and Paying Agent an Officers’ Certificate at least 30 days prior to the date of payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in case which such Issuer or the relevant Guarantor shall notify the trustee promptly thereafter) stating the fact that Additional Amounts will be payable and the amount estimated to be so payable, along with other information reasonably necessary to enable the Trustee and Paying Agent to pay Additional Amounts to holders or beneficial owners of Taxes attributable the Notes on the relevant payment date. The trustee shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. Such Issuer or the relevant Guarantor will provide the trustee with documentation reasonably satisfactory to the receipt trustee evidencing the payment of payments theretoAdditional Amounts.
(e) Such Issuer or the relevant Guarantor will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with Applicable Law. Such Issuer or the relevant Guarantor will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld by such Issuer or the relevant Guarantor. Such Issuer or the relevant Guarantor will furnish to the trustee, to within 60 days after the date of payment of any such Taxes imposed so deducted or withheld in a Relevant Taxing Jurisdiction that is made, certified copies of Tax receipts evidencing payment by such Issuer or Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not excluded under clauses obtained, other evidence of payments by such entity. Each holder and beneficial owner of the Notes agrees that it shall provide an applicable Internal Revenue Service Form W-9 or W-8 to the paying agent or other applicable withholding agent.
(af) through (k) above). The obligations of the Company or any Guarantor Issuers and the Guarantors to pay Additional Amounts and other amounts described in this Section 4.19 above will survive any termination, defeasance or satisfaction and discharge of this Indenture or and any transfer by a holder or beneficial owner owners of its notesNotes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Company, an Issuer or any Guarantor is organized, incorporated, engaged in business for tax purposes or is otherwise resident or treated as resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department is made or any political subdivision or authority or agency thereof or therein.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of the Company Issuer Trust or any Guarantor under of, or with in respect to of, principal of and premium (if any), including Principal Premium, and interest on the Notes or the Subsidiary Guarantees will shall be made free and clear of of, and without collection, withholding or deduction for or on account of of, any present or future tax, duty, levy, impost, duty, assessment or other governmental charge (including without limitationany interest, penalties, interest inflationary adjustments and any other liability with respect penalties related thereto) whatsoever and wherever imposed, assessed, levied or collected (collectively, “Taxes”), unless such collection, withholding or deduction is required by law or by the interpretation or administration of law.
(b) imposed If the Issuer Trust or levied by or on behalf of any jurisdiction in which the Company Paying Agent or any Guarantor is required to collect, deduct or withhold any amount in respect of Taxes imposed by (including i) Mexico (or any successor entitiespolitical subdivision thereof or any authority therein or thereof having the power to tax); (ii) any other jurisdiction under the laws of which the Issuer Trust or such Guarantor is then organized or resident for tax purposes (or any political subdivision thereof or any authority therein or thereof having the power to tax) or (iii) any jurisdiction by from or through which payment on the Notes is made by or at the direction of the Issuer Trust or such Guarantor (or any political subdivision thereof or any authority therein or thereof having the power to tax) (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment payments made under or with respect to the Notes or the Subsidiary GuaranteesNotes, the Company Issuer Trust or any such Guarantor Guarantor, as the case may be, will determine and pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such each Holder (including the Additional Amounts) after such withholding or deduction of Notes will not be less than the amount such Holder would have received if such Taxes (including any Taxes collected, withheld or deducted from the payment of such Additional Amounts) had not been collected, withheld or deducted, provided that no . The foregoing obligation to pay Additional Amounts to any Holder of Notes, however, will be not apply to or in respect of:
(i) any Taxes that would not have been so imposed, assessed, levied or collected but for the fact of the Holder or beneficial owner of any payments under the Note or the Note Guarantee (or a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation) being or having been a citizen or resident of, or engaging or having been engaged in a trade or business or maintaining or having maintained a permanent establishment for tax purposes in, a Relevant Taxing Jurisdiction or otherwise having or having had some present or former connection with a Relevant Taxing Jurisdiction other than the mere holding or ownership of, or the collection of principal of, and premium (if any), including Principal Premium, or interest on, or the enforcement of rights with respect to, a Note;
(ii) any Taxes that would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required in order to receive payment, the Note was presented more than 30 days after the date on which such payment became due and payable or was provided for, whichever is later, except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented for payment on the last day of such 30-day period;
(iii) any estate, inheritance, gift, sales, stamp, transfer, excise, value added or personal property or similar Taxes;
(iv) any Taxes that are payable otherwise than by collection, deduction or withholding from payments with respect to any Note:the Notes or the Note Guarantees;
(av) surrendered any Taxes that would not have been so imposed, assessed, levied or collected but for the failure by the Holder or the beneficial owner thereof for payment of principal more than 30 days after any payments under the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder Note or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
Guarantee (bi) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide any certification, identification, information, documents documentation, tax forms or other evidence concerning the nationality, residence, citizenship, maintenance of a trade or business or a permanent establishment for Tax purposes, or identity of such Holder or beneficial owner or its present or former connection with the Relevant Taxing Jurisdiction of or (ii) to satisfy any other reporting, information or procedural requirements relating to such Holder matters if, in each case, compliance is timely requested by the Issuer Trust or beneficial owner which is any Guarantor and required or imposed by a law, statute, treatyrule, regulation regulation, resolution, interpretation or administrative practice of the Relevant Taxing Jurisdiction as a precondition condition to relief, reduction or exemption from all or part of such tax, assessment or governmental chargeTaxes;
(cvi) held by any payment on a Note or on behalf of the Note Guarantees to a Holder or the beneficial owner who that is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchasea fiduciary, holding or disposition of any Notea partnership, or the receipt of payments made by or on behalf of the Company a limited liability company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or Person other than the sole beneficial owner of any such payment to the extent that a beneficiary or settlor with respect to such fiduciary, a partner of such partnership, a member of such limited liability company, or the beneficial owner of the payment would not have been entitled to any the Additional Amounts had such beneficiary or settlor the beneficiary, settlor, partner, member or beneficial owner been the Holder;Holder of the Note; or
(gvii) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A any combination of the French Code général des impôts;
Taxes and/or collections, withholdings or deductions described in (i) through (vi) above.
(c) The exceptions to the obligations to pay Additional Amounts stated in case Section 4.35(b)(v) hereof will not apply if the provision of Taxes which are payable otherwise information, documentation, tax forms or other evidence described in Section 4.35(b)(v) hereof will would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of any payments under the Note or the Note Guarantee (taking into account any relevant differences between U.S. and the Relevant Taxing Jurisdiction’s law, regulations or administrative practice) than by withholding comparable information or deduction from a payment made other reporting requirements imposed under or U.S. tax law, regulations and administrative practice (such as IRS Forms W-8 and W-9).
(d) The exceptions to the obligations to pay Additional Amounts stated in Section 4.35(b)(v) hereof will not apply if, with respect to the Notes;
(j) when such withholding Taxes imposed by Mexico or deduction is required to be made by reason any political subdivision or taxing authority thereof, Article 166, Section II, subsection a), of the Holder Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substantially similar successor of such Article, whether included in any law, rule, resolution or regulation) is in effect, unless (a) the provision of the information, documentation, tax forms or other evidence described in Section 4.35(b)(v) hereof is expressly required by statute, law, rule, resolution, regulation, or official administrative practice to apply Article 166, Section II, subsection a), of the Mexican Income Tax Law (or a substantially similar successor of such Article, whether included in any law, rule, resolution or regulation); (b) the Issuer Trust or any Guarantor, as the case may be, cannot obtain the information, documentation, tax forms or other evidence necessary to comply with the applicable laws, rules, resolutions and regulations on its own through reasonable diligence and without requiring it from Holders or from the beneficial owner of the Note concurrently being a shareholder of payments; and (c) the Company Issuer Trust or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net as the case may be, otherwise would meet the requirements for application of any deduction or withholding imposed or required pursuant to an agreement described in Article 166, Section 1471(b) II, subsection a), of the U.S. Internal Revenue Code Mexican Income Tax Law (or a substantially similar successor of 1986such Article, as amended whether included in any law, rule, resolution or regulation).
(e) Notwithstanding anything to the “Code”)contrary in this Section 4.35, the Issuer Trust and the Guarantors may withhold or otherwise imposed deduct any amount pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version of such Sections), any regulations thereunder or promulgated thereunder, any official interpretations thereof) , any similar law or regulations adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States and another jurisdiction facilitating with respect to the implementation thereof (foregoing or any fiscal agreements entered into pursuant to Section 1471(b)(1) of the Code.
(f) The Issuer Trust or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any applicable Guarantor, will be required as the case may be, shall use reasonable efforts to pay provide the Indenture Trustee with the official acknowledgment or receipt of the applicable Relevant Taxing Jurisdiction (or, if such acknowledgment or receipt is not available, other reasonable documentation) evidencing any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to in respect of which the Trustee, copies Issuer Trust or such Guarantor has paid any Additional Amounts. Copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been documentation shall be made available by the Company or any Guarantor. The Indenture Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on or the payment date. Whenever Paying Agents, as applicable, upon request therefor.
(g) The Issuer Trust will pay any stamp, issue, excise, property, registration, documentary or other similar Taxes and duties, including interest and penalties, imposed by a Relevant Taxing Jurisdiction in respect of the creation, issue, delivery, registration and offering of the Notes, the execution of the Notes, this Indenture there is mentionedor any other related document or instrument, or the receipt of any payments with respect to the Notes (other than Taxes or similar levies resulting from the transfer or exchange of Notes). The Issuer Trust will also pay and indemnify the Indenture Trustee, the Offshore Collateral Agent and the Holders from and against all court Taxes or other Taxes and duties, including interest and penalties, paid by any of them in any contextjurisdiction in connection with any action permitted to be taken by the Indenture Trustee, the Offshore Collateral Agent and the Holders to enforce the obligations of the Issuer Trust under the Notes, this Indenture or any other Transaction Document.
(ah) Unless otherwise stated, references in any context to the payment of principal (of, and premium, if any), (b) purchase prices in connection with a purchase of the Notesincluding Principal Premium, (c) or interest or (d) on, any other amount payable on or with respect to any of the Notes or the Subsidiary GuaranteesNote, such mention is will be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(i) The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The foregoing obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer Trust or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinGuarantor.
Appears in 1 contract
Additional Amounts. All payments made by If provided in or on behalf of pursuant to the Company or any Guarantor under or related Series Authorization with respect to Securities of any series and subject to any modification of the Notes or the Subsidiary Guarantees will following provisions as may be made free and clear specified therein, all payments of principal of and without withholding or deduction for or on account of any present or future taxpremium, duty, levy, impost, assessment or other governmental charge (including without limitation, penaltiesif any, interest and any other liability with amounts on, or in respect thereto) (“Taxes”) of, the Securities of such series shall be made without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized organized, tax resident or resident engaged in business for tax purposes (each, a “taxing jurisdiction”) or any political subdivision or taxing authority thereof or therein, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or ruling promulgated thereunder) of a taxing jurisdiction or any political subdivision or taxing authority thereof or therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including, without limitation, a holding by a court of competent jurisdiction or by a taxing authority in a taxing jurisdiction or any political subdivision thereof). If a withholding or deduction at source is required, the Company shall, subject to certain limitations and exceptions set forth below, pay to the Holder (for the benefit of the beneficial owner) of any such Security such Additional Amounts as may be necessary so that every net payment of principal, premium, if any, interest or any other amount made to such beneficial owner, after such withholding or deduction, shall not be less than the amount provided for in such Security and this Indenture to be then due and payable; provided, however, that except to the extent otherwise provided in or pursuant to such Series Authorization, the Company shall not be required to make payment of such Additional Amounts for or on account of:
(1) any tax, fee, duty, assessment or governmental charge of whatever nature which would not have been imposed but for the fact that such beneficial owner: (A) was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant taxing jurisdiction or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by otherwise had some connection with the relevant taxing authority. If jurisdiction other than by reason of the Company mere ownership of, or receipt of payment under, such Security; (B) presented such Security for payment in the relevant taxing jurisdiction or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary Guaranteespolitical subdivision thereof, the Company or any unless such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will Security could not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof presented for payment of principal elsewhere; or (C) presented such Security more than 30 thirty (30) days after the later of (1) the date on which the payment in respect of such payment Security first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due dateprovided for, the date on whichwhichever is later, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering if it had presented such Note Security for payment on any day during the applicable within such period of thirty (30-day period) days;
(b2) if any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(3) any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or, if different, or the beneficial owner (ayant-droit) of such Security to comply with any reasonable request by the Note with a request Company addressed to the Holder within 90 days of such Holder or beneficial owner request (A) to provide information, documents or other evidence information concerning the nationality, residence, residence or identity or connection with of the Relevant Taxing Jurisdiction of such Holder or such beneficial owner which or (B) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction relevant taxing jurisdiction or any political subdivision thereof as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e4) except in the case of the winding up of the Company any tax which is payable otherwise than by withholding or any Guarantor, any Note surrendered for payment in the Republic of Francededuction from payments made under or with respect to such Security;
(f5) any taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the Code as of the issue date of such Security (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a result non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code; or
(6) any combination of items (a1) through (5), (b), (c), (d) or (e) or ; nor shall Additional Amounts be paid with respect to any payment made by or on behalf of the Company principal of, or premium, if any, interest or any Guarantor other amounts on, any such Security to any Holder or in respect of any Note or Subsidiary Guarantee to any Holder beneficial owner who is a fiduciary or partnership or other than the sole beneficial owner of such payment Security to the extent that such payment would be required by the laws of the relevant taxing jurisdiction (or any political subdivision or relevant taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or partner or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to any such Additional Amounts had such beneficiary or settlor or beneficial owner it been the Holder;
(g) such withholding holder or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the sole beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment dateSecurity. Whenever in this Indenture there is mentioned, in any context, (a) the payment of the principal (and of or any premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on amounts on, or with in respect to of, any Security of the Notes any series or the Subsidiary Guaranteesnet proceeds received on the sale or exchange of any Security of any series, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section by the terms of such series established hereby or pursuant hereto to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding the payment of Additional Amounts in those provisions hereof where such express mention is not made. The Company Except as otherwise provided in or a Guarantorpursuant to this Indenture or the related Series Authorization of the applicable series, as at least 15 days prior to the case may be, will pay any present first Interest Payment Date with respect to such series of Securities (or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in if the United StatesSecurities of such series shall not bear interest prior to Maturity, the Republic of France or in any jurisdiction in first day on which a Paying Agent payment of principal is located from the initial issue made), and at least 15 days prior to each date of payment of principal or registration of the Notes or on the enforcement of interest if there has been any payments change with respect to the Notes, any Subsidiary Guaranteematters set forth in the below-mentioned Officers’ Certificate, the Indenture Company shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if other than the Trustee, an Officers’ Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and premium, if any, interest or any other documents related amounts on the Securities of such series shall be made to beneficial owners of Securities of such series appertaining thereto (limitedwithout withholding for or on account of any tax, in case of Taxes attributable to the receipt of payments theretofee, to any such Taxes imposed duty, assessment or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor other governmental charge described in this Section 4.19 will survive 10.4. If any terminationsuch withholding shall be required, defeasance or satisfaction and discharge then such Officers’ Certificate shall specify by taxing jurisdiction the amount, if any, required to be withheld on such payments to such beneficial owners of this Indenture or any transfer by a holder or beneficial owner of its notesSecurities, and will apply, mutatis mutandis, the Company agrees to any jurisdiction in which any successor Person pay to the Issuer Trustee or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on Paying Agent the Notes Additional Amounts required by this Section 10.4. The Company covenants to indemnify the Trustee and any department Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence, bad faith or willful misconduct on their part arising out of or in connection with actions taken or omitted by any political subdivision thereof or thereinof them in reliance on any Officers’ Certificate furnished pursuant to this Section 10.4.
Appears in 1 contract
Sources: Senior Indenture (Essent Group Ltd.)
Additional Amounts. (a) All payments made by or on behalf of the Company or any Guarantor under the Subsidiary Guarantors on or with respect to the Notes or the Subsidiary Guarantees will pursuant to this Indenture shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and Taxes imposed by any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Canadian Taxing Jurisdiction”)Authority, unless the Company required by law or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authorityCanadian Taxing Authority. If the Company or any Subsidiary Guarantor (or any Paying Agentother payor) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant any Canadian Taxing Jurisdiction Authority from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, it shall:
(1) make such withholding or deduction;
(2) remit the full amount deducted or withheld to the relevant government authority in accordance with applicable law;
(3) pay the additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder each holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder the holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b4) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment furnish to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishHolders, within 60 30 days after the date the payment of any Taxes is due pursuant to applicable lawdue, to the Trustee, certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or such Subsidiary Guarantor;
(5) indemnify and hold harmless each Holder (other than an Excluded Holder, as defined in paragraph (b) below) for the amount of (a) any Guarantor. The Trustee will make Taxes paid by each such evidence available Holder as a result of payments made on or with respect to the Holders upon request. At Notes, (b) any liability (including penalties, interest and expenses) arising from or with respect to such payments and (c) any Taxes imposed with respect to any reimbursement under the foregoing clauses (a) or (b), but excluding any such Taxes that are in the nature of Taxes on net income, taxes on capital, franchise taxes, net worth taxes and similar taxes; and
(6) at least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Subsidiary Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior payment, deliver to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date.
(b) Notwithstanding the provisions of paragraph (a) above, no Additional Amounts shall be payable to a Person (an “Excluded Holder”) in respect of a payment made to such Person under or with respect to a Note:
(1) if such Person is subject to such Taxes by reason of its being connected with Canada or any province or territory thereof otherwise than by the mere acquisition, holding or disposition of Notes or the receipt of payments thereunder;
(2) if such Person waives its right to receive Additional Amounts;
(3) if the Company of such Subsidiary Guarantor does not deal at arm’s length, within the meaning of the Income Tax Act (Canada), with such Person at the time of such payment; or
(4) if the Company of such Subsidiary Guarantor does not deal at arm’s length, within the meaning of the Income Tax Act (Canada), with another Person to whom the Company or such Subsidiary Guarantor has an obligation to pay an amount in respect of the Notes. Whenever in this Indenture there is mentionedAny reference, in any contextcontext in this Indenture, (a) to the payment of principal (and principal, premium, if any), (b) purchase prices in connection with a purchase redemption price, Change of the NotesControl Amount, (c) interest offer price and interest, or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesNote, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above)payable. The obligations of the Company or any Guarantor described in under this Section 4.19 4.20 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer Company or any Guarantor Subsidiary Guarantor, as applicable, is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department organized or any political subdivision or taxing authority or agency thereof or therein. It is understood for purposes of this Section 4.20 that the determination of the amount of Additional Amounts shall be made at the beneficial owner level.
Appears in 1 contract
Sources: Indenture (Videotron Ltee)
Additional Amounts.
(1) All payments made by or on behalf of the Company or any Guarantor under the Subsidiary Guarantors on or with respect to the Notes or the Subsidiary Guarantees will pursuant to this Indenture shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and Taxes imposed by any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Canadian Taxing Jurisdiction”)Authority, unless the Company required by law or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authorityCanadian Taxing Authority. If the Company or any Subsidiary Guarantor (or any Paying Agentother payor) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant any Canadian Taxing Jurisdiction Authority from any payment made under or with respect to the Notes or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, it shall:
(i) make such withholding or deduction;
(ii) remit the full amount deducted or withheld to the relevant government authority in accordance with applicable law;
(iii) pay the additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such each Holder (including the Additional Amounts) after such withholding or deduction (including any deduction or withholding for Additional Amounts) will not be less than the amount such the Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:;
(aiv) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given furnish to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishHolders, within 60 30 days after the date the payment of any Taxes is due pursuant to applicable lawdue, to the Trustee, certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or such Subsidiary Guarantor;
(v) indemnify and hold harmless each Holder (other than an Excluded Holder, as defined in paragraph (2) below) for the amount of (a) any Guarantor. The Trustee will make Taxes paid by each such evidence available Holder as a result of payments made on or with respect to the Holders upon request. At Notes, (b) any liability (including penalties, interest and expenses) arising from or with respect to such payments and (c) any Taxes imposed with respect to any reimbursement under the foregoing clauses (a) or (b), but excluding any such Taxes that are in the nature of Taxes on net income, taxes on capital, franchise taxes, net worth taxes and similar taxes; and
(vi) at least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Subsidiary Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior payment, deliver to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever
(2) Notwithstanding the provisions of paragraph (1) above, no Additional Amounts shall be payable to a Person (an “Excluded Holder”) in this Indenture there respect of a payment made to such Person under or with respect to a Note:
(i) if such Person is mentionedsubject to such Taxes by reason of its being connected with Canada or any province or territory thereof otherwise than by the mere acquisition, holding or disposition of Notes or the receipt of payments thereunder;
(ii) if such Person waives its right to receive Additional Amounts;
(iii) if the Company or such Subsidiary Guarantor does not deal at arm’s length, within the meaning of the Income Tax Act (Canada) (the “Tax Act”), with such Person at the time of such payment;
(iv) if the Company or such Subsidiary Guarantor does not deal at arm’s length, within the meaning of the Tax Act, with another Person to whom the Company or such Subsidiary Guarantor has an obligation to pay an amount in respect of the Note; or
(v) to the extent that the Taxes giving rise to such Additional Amounts would not have been imposed but for such person being, or not dealing at arm’s length (within the meaning of the Tax Act) with, a “specified shareholder” of the Company for purposes of the thin capitalization rules in the Tax Act. Any reference, in any contextcontext in this Indenture, (a) to the payment of principal (and principal, premium, if any), (b) purchase prices in connection with a purchase redemption price, Change of the NotesControl Payment, (c) offer price and interest or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesNote, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereofpayable. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in under this Section 4.19 4.20 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer Company or any Guarantor Subsidiary Guarantor, as applicable, is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department organized or any political subdivision or taxing authority or agency thereof or therein.. It is understood for purposes of this Section 4.20 that the determination of the amount of Additional Amounts shall be made at the beneficial owner level.
Appears in 1 contract
Sources: Indenture (Videotron Ltee)
Additional Amounts. All payments made by or on behalf of the Company or any Guarantor Corporation under or with respect to the Notes or the Subsidiary Guarantees Securities will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of the Government of Canada or of any jurisdiction in which the Company province or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision territory thereof or by any authority or agency therein or any jurisdiction by or through which payment is made thereof having power to tax (each, a hereinafter “Relevant Taxing JurisdictionTaxes”), unless the Company or any Guarantor (or any Paying Agent) Corporation is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction by law or by the interpretation or administration thereof by the relevant taxing authoritythereof. If the Company or any Guarantor (or any Paying Agent) Corporation is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Subsidiary GuaranteesSecurities, the Company or any such Guarantor Corporation will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such each Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such the Holder would have received if such Taxes had not been withheld or deducted, ; provided that no Additional Amounts will be payable with respect to any Note:
a payment made to a Holder (asuch Holder, an “Excluded Holder”) surrendered by (i) with which the Holder or Corporation does not deal at arm’s length (within the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf meaning of the relevant Holder Income Tax Act (Canada)) at the time of making such payment, or the beneficial owner on or prior (ii) which is subject to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld Taxes by reason of the failure to comply its being connected with Canada or any province or any territory thereof otherwise than by the Holder or, if different, the beneficial owner (ayant-droit) mere holding of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, Securities or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
thereunder. The Corporation will also (i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company Corporation will furnishfurnish to the Holder of the Securities, within 60 30 days after the date the payment of any Taxes taxes is due pursuant to applicable law, to the Trustee, certified copies of tax receipts evidencing such payment by the Corporation. The Corporation will indemnify and hold harmless each Holder (other than an Excluded Holder) and upon written request reimburse each such Holder for the amount of (i) any Taxes so levied or imposed and paid by such Holder as a result of payments made under or with respect to the extent received from the relevant tax authorities in the usual course Securities, (ii) any liability (including penalties, interest and expenses) arising therefrom or as generally providedwith respect thereto, and (iii) evidencing that any Taxes imposed with respect to any reimbursement under (i) or (ii), but excluding any such payment has been made by the Company or any Guarantor. The Trustee will make Taxes on such evidence available to the Holders upon requestHolder’s net income. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees Securities is due and payable, if the Company or any Guarantor becomes Corporation will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date)payment, the Company Corporation will deliver to each Paying Agent the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever Wherever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary Guaranteesa Security, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration obligations of the Notes Corporation under this Section 1011 shall survive the termination of this Indenture and the payment of all amounts under or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinSecurities.
Appears in 1 contract
Sources: Indenture (Agrium Inc)
Additional Amounts. (a) All payments made by or on behalf of the Company or any the Guarantor under on or with respect to the Notes or the Subsidiary Guarantees will this Indenture shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and Taxes imposed by any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Canadian Taxing Jurisdiction”)Authority, unless the Company required by law or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authorityCanadian Taxing Authority. If the Company or any the Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or this Indenture, it shall:
(i) make or cause to be made such withholding or deduction;
(ii) remit or cause to be remitted the Subsidiary Guarantees, full amount deducted or withheld to the Company or any such Guarantor will relevant Canadian Taxing Authority in accordance with applicable law;
(iii) pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such each Holder or the Trustee (including the Additional Amounts) after such withholding or deduction (including any withholding or deduction from Additional Amounts) will not be less than the amount such the Holder or the Trustee would have received if such Taxes withholding or deduction had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:required;
(aiv) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given furnish to the Holders except to and the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnishTrustee, within 60 30 days after the date the payment of any Taxes is due pursuant to applicable lawdue, to the Trustee, certified copies of tax receipts evidencing such payment by the Issuer or a Guarantor, as applicable;
(v) indemnify and hold harmless each Holder (other than an Excluded Holder, as defined in paragraph (b) below) and the Trustee for the amount of (i) any Taxes paid by each such Holder as a result of payments made on or with respect to the extent received Notes or the Indenture, (ii) any liability (including penalties, interest and expenses) arising from or with respect to such payments and (iii) any Taxes imposed with respect to any reimbursement under the relevant tax authorities foregoing clauses (i) or (ii), but excluding any such Taxes that are in the usual course or as generally providednature of taxes on net income, taxes on capital, franchise taxes, net worth taxes and similar taxes; and
(vi) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At at least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any the Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior payment, deliver to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent Trustee an Officers’ Officer’s Certificate stating the fact that such Additional Amounts will be payable, and the amount amounts so payable and will set forth such other information as necessary to enable such Paying Agent the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever For greater certainty, the obligation to indemnify under (v) above will extend to Taxes (other than Taxes that are excluded under (v) above) paid by a Holder (other than a Holder referred to in this Indenture there (i) in paragraph (b) below) in respect of which the Company or the Guarantor is mentionednot obliged to withhold as a result of the Holder’s status as an authorized foreign bank or a registered non-resident insurer (each as defined in the Income Tax Act (Canada)) (or other entity exempt from withholding on a basis comparable to authorized foreign banks and registered non-resident insurers) where such Holder must itself pay Taxes imposed by a Canadian Taxing Authority in lieu of withholding taxes.
(b) Notwithstanding the provisions of paragraph (a) above, no Additional Amounts shall be payable to a Holder in respect of the beneficial owner of a Security (an “Excluded Holder”):
(i) with which the Company or the Guarantor, as the case may be, does not deal at arm’s-length, within the meaning of the Income Tax Act (Canada), at the time of making such payment;
(ii) which is subject to such Taxes by reason of its being connected with Canada or any province or territory thereof, including by virtue of carrying on a business in Canada, otherwise than by the mere acquisition, holding or disposition of Notes or the receipt of payments thereunder or enforcement of rights thereunder; or
(iii) if such Holder waives its right to receive Additional Amounts. Any reference, in any contextcontext in this Indenture, (a) to the payment of principal (and principal, premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) redemption price and interest or (d) any other amount payable on under or with respect to any of the Notes or the Subsidiary GuaranteesNotes, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above)payable. The obligations of the Company or any Guarantor described in under this Section 4.19 4.18 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer Company or any Guarantor the Guarantor, as applicable, is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (World Color Press Inc.)
Additional Amounts. All payments (a) Payments made by or on behalf of the Company either Co-Issuer or any Guarantor under or with respect to the Notes or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impostinterest, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company Government of Canada or any Guarantor (including any successor entities) is then organized province or resident for tax purposes or any political subdivision territory thereof or by any authority or agency therein or any jurisdiction by or through which payment is made thereof having power to tax (each, a “Relevant Taxing JurisdictionTaxes”), unless the Company such Co-Issuer or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction Canadian law or by the interpretation or administration thereof by thereof. If, after the relevant taxing authority. If the Company Issue Date, either Co-Issuer or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes Notes, such Co-Issuer or the Subsidiary Guarantees, the Company or any such Guarantor will pay to each Holder holder of the Notes that are outstanding Outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, ; provided that no Additional Amounts will be payable with respect to any Notea payment made to a Holder (an “Excluded Holder”) in respect of a beneficial holder:
(a1) surrendered with which such Co-Issuer or Guarantor does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) at the time of making such payment;
(2) which is subject to such Taxes by reason of its being connected with Canada or any province or territory thereof otherwise than by the Holder mere holding of the Notes or the beneficial owner thereof receipt of payments thereunder;
(3) which presents any Note for payment of principal more than 30 60 days after the later of (1x) the date on which such payment first became due and (2y) if the date on which the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, Trustee and notice to that effect shall have has been given to the Holders of Notes by the Trustee, except to the extent that the such Holder or the beneficial owner of Notes would have been entitled to such Additional Amounts on surrendering presenting such Note for payment on any the last day during of the applicable 3060-day period;
(b4) if any taxwhich, assessment or other governmental charge is imposed or withheld despite being required by reason of the failure law, failed to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a timely request addressed to of such Holder Co-Issuer or beneficial owner Guarantor to provide information, documents or other evidence information concerning the such holder’s nationality, residence, entitlement to treaty benefits, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company Canada or any Guarantor in respect thereof political subdivision or any Subsidiary Guaranteeauthority thereof, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar tax, assessment or other governmental charge;
(e) except in the case of the winding up of the Company or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment if and to the extent that a beneficiary due and timely compliance with such request would have reduced or settlor or beneficial owner would not have been entitled eliminated any Taxes as to any which Additional Amounts had would have otherwise been payable to such beneficiary or settlor or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantorbut for this clause; or
(k5) Any any combination of items the above clauses in this proviso.
(ab) through Such Co-Issuer or Guarantor will also:
(j1) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any make such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and ; and
(2) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company .
(c) Such Co-Issuer or Guarantor will furnish, within 60 30 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, Holders of Notes that are Outstanding on the date of the required payment copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company such Co-Issuer or any Guarantor. The Trustee Such Co-Issuer or Guarantor will make indemnify and hold harmless each Holder of Notes that are Outstanding on the date of the required payment (other than an Excluded Holder) and upon written request reimburse each such evidence available to holder for the Holders upon request. At least 30 days prior to each date on which amount of:
(1) any payment Taxes so levied or imposed and paid by such holder as a result of payments made under or with respect to the Notes or the Subsidiary Guarantees is due Notes,
(2) any liability (including penalties, interest and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under expense) arising therefrom or with respect to the Notes or the Subsidiary Guarantees is due and payablethereto, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, and
(a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d3) any other amount payable on or Taxes imposed with respect to any of the Notes reimbursement under clause (1) or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k2) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture (Dollarama CORP)
Additional Amounts. All payments made by If, as a result of any change in or on behalf amendment to the laws (or any regulations or rulings promulgated thereunder) of the Company United States or of any Guarantor under political subdivision or with respect to taxing authority thereof or therein affecting tax after the Notes settlement date, NT III or the Subsidiary Guarantees will Guarantor would be made free and clear required to deduct or withhold from any payment on a Note of and without withholding or deduction amounts for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes United States or any political subdivision or taxing authority thereof or therein therein, NT III or any jurisdiction by or through which payment is made (eachthe Guarantor, a “Relevant Taxing Jurisdiction”)as the case maybe, unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect will, subject to the Notes or the Subsidiary Guaranteeslimitations and exceptions set out below, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required paymenta Holder, who is a United States Alien, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that every net payment of interest with respect to such Note after deduction or withholding for or on account of any such tax, assessment or other governmental charge imposed upon such Holder, or by reason of the net amount received making of such payment, by such Holder (including the Additional Amounts) after such withholding United States or deduction any political subdivision or taxing authority thereof or therein, will not be less than the amount provided for in such Holder would have received if such Taxes had not been withheld or deductedNote. For greater certainty, provided that no Additional Amounts will Amount shall be payable by the Issuer or the Guarantor in respect of taxes imposed by any jurisdiction other than the United States or any political subdivision or tax authority thereof or therein affecting tax. However, NT III or the Guarantor, in the case of payments under the Guarantee, will not be required to make any payment of Additional Amounts to any such holder for or on account of: Guarantor, as the case maybe, will, subject to the limitations and exceptions set out below, pay to a Holder, who is a United States Alien, such additional amounts (the “Additional Amounts”) as may be necessary so that every net payment of interest with respect to any Note:
(a) surrendered by the Holder such Note after deduction or the beneficial owner thereof withholding for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf account of the relevant Holder or the beneficial owner on or prior to any such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day period;
(b) if any tax, assessment or other governmental charge is imposed upon such Holder, or withheld by reason of the failure to comply making of such payment, by the Holder orUnited States or any political subdivision or taxing authority thereof or therein, if differentwill not be less than the amount provided for in such Note. For greater certainty, no Additional Amount shall be payable by the beneficial owner (ayant-droit) Issuer or the Guarantor in respect of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or taxes imposed by a statuteany jurisdiction other than the United States or any political subdivision or tax authority thereof or therein affecting tax. However, treatyNT III or the Guarantor, regulation in the case of payments under the Guarantee, will not be required to make any payment of Additional Amounts to any such holder for or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of on account of: ● any such tax, assessment or other governmental charge;
charge which would not have been so imposed but for the existence of any present or former connection between such holder (c) held by or on behalf of between a Holder fiduciary, settlor, beneficiary, member or the beneficial owner who is liable for Taxes in respect shareholder of such Note by reason of having some connection with holder, if such holder is an estate, a trust, a partnership or a corporation) and the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary GuaranteeUnited States, including, without limitation, such Holder holder (or beneficial owner such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or present therein, or having had a permanent establishment therein;
(d) on account of ; ● any estate, inheritance, gift, salesales, transfer, transfer or personal property tax or any similar tax, assessment or governmental charge; ● any tax, assessment or other similar governmental charge imposed by reason of such holder’s past or present status, such as a personal holding company or foreign personal holding company or controlled foreign corporation or passive foreign investment company with respect to the United States or as a corporation which accumulates earnings to avoid United States federal income tax or as a private foundation or other tax-exempt organization; ● any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments on or in respect of any Note; ● any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information or other reporting requirements concerning the nationality, residence or identity of the holder or beneficial owner of such Note if such compliance is required by statute or by regulation of the United States or of any political subdivision or taxing authority thereof or therein as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(e) except in ; ● any tax, assessment or other governmental charge imposed by reason of such holder’s past or present status as the case actual or constructive owner of 10 per cent or more of the winding up total combined voting power of all classes of stock entitled to vote of NT III, or the Guarantor, or as a direct or indirect subsidiary of NT III, or the Guarantor or as a bank receiving interest described in Section 881(c)(3)(A) of the Company U.S. Internal Revenue Code; or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result of ● any combination of (a), (b), (c), (d) or (e) or the foregoing items; nor shall Additional Amounts be paid with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any a Note or Subsidiary Guarantee to any Holder a United States Alien who is a fiduciary or partnership or other than the sole beneficial owner of such payment (taking into account the conduit financing rules of Treasury Regulation Section 1.881-3) to the extent that such payment would be required by the laws of the United States (or any political subdivision thereof) to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to any the Additional Amounts had such beneficiary or settlor beneficiary, settlor, member or beneficial owner been the Holder;
(g) such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A holder of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Subsidiary Guarantee, the Indenture or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinNote.
Appears in 1 contract
Sources: Agency Agreement (Kimco Realty Corp)
Additional Amounts. All payments made by or on behalf of (a) If the Company or any Guarantor under (or with respect any of their respective successors), as applicable, is required by law or by the interpretation or administration thereof by the relevant government authority or agency to the Notes withhold or the Subsidiary Guarantees will be made free and clear of and without withholding or deduction deduct any amount for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect liabilities related thereto) (“Taxes”) imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor Specified Tax Jurisdiction (including any successor entitiesregulations or rulings promulgated thereunder) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a hereinafter “Relevant Taxing JurisdictionTaxes”), unless the Company or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authority. If the Company or any Guarantor (or any Paying Agent) is so required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes Notes, any Note Guarantee or the Subsidiary Guaranteesany Mortgaged Vessel, as applicable, the Company or any such Guarantor will (or any of their respective successors), as applicable, shall pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such each Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such the Holder would have received if such Taxes had not been withheld or deducted; provided, provided however, that no Additional Amounts will shall be payable with respect to any Note:
payments made to a Holder (aan “Excluded Holder”) surrendered in respect of a beneficial owner (i) which is subject to such Taxes by reason of its being connected with the Specified Tax Jurisdiction otherwise than by the Holder mere holding of Notes or the beneficial owner thereof receipt of payments thereunder (or under the related guarantee), (ii) which presents any Note for payment of principal more than 30 60 days after the later of (1x) the date on which such payment first became due and (2y) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner Trustee on or prior to such due date, the date on which, which the full amount payable having been so received, notice to that effect received and the Trustee shall have been given notice to the Holders of its receipt of such full amount, except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering presenting such Note for payment on any the last day during of the applicable 3060-day period;
, (biii) if any taxwhich failed to duly and timely comply with a reasonable, assessment or other governmental charge is imposed or withheld by reason timely request of the failure to comply by the Holder or, if different, the beneficial owner (ayant-droit) of the Note with a request addressed to such Holder or beneficial owner Company to provide information, documents or other evidence concerning the Holder’s nationality, residence, entitlement to treaty benefits, identity or connection with the Relevant Taxing Specified Tax Jurisdiction of or any political subdivision or authority thereof, if and to the extent that due and timely compliance with such request would have reduced or eliminated any Taxes as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner which is required or imposed by a statutebut for this clause (iii), treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(div) on account of any estate, inheritance, gift, sale, transfer, personal property or other similar taxTax, assessment (v) which is a fiduciary, a partnership or other governmental charge;
(e) except in not the case beneficial owner of any payment on a Note, if and to the winding up extent that any beneficiary or settlor of the Company or any Guarantorsuch fiduciary, any Note surrendered for payment partner in the Republic of France;
(f) as a result of any combination of (a), (b), (c), (d) or (e) or with respect to any payment made by or on behalf of the Company or any Guarantor in respect of any Note or Subsidiary Guarantee to any Holder who is a fiduciary or such partnership or other than the sole beneficial owner of such payment to (as the extent that a beneficiary or settlor or beneficial owner case may be) would not have been entitled to any receive Additional Amounts had with respect to such beneficiary or settlor payment if such beneficiary, settlor, partner or beneficial owner had been the Holder;
(g) Holder of such withholding or deduction is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, Note or (yvi) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A any combination of the French Code général des impôts;
(i) in case of Taxes which are payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision foregoing numbered clauses of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any Guarantor, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholdingproviso. The Company or the Guarantors (or any Guarantor will also of their respective successors), as applicable, shall make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Applicable Law.
(b) In the event the Company will furnishelects not to redeem the Notes pursuant to Section 3.07(e), the Company or the Guarantors (or any of their respective successor), as applicable, shall furnish to the Trustee, within 60 30 days after the date the payment of any Taxes is due pursuant to applicable lawApplicable Law, to the Trustee, certified copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or the Guarantors (or any Guarantorof their respective successors), as applicable, in such form as provided in the normal course by the taxing authority imposing such Taxes and as is reasonably available to the Company or the Guarantors (or any of their respective successors), as applicable. The Trustee will shall make such evidence available to the Holders upon request. At least 30 days prior to The Company or the Guarantors (or any of their respective successors), as applicable, shall upon written request of each date on which Holder (other than an Excluded Holder), reimburse each such Holder for the amount of (i) any payment Taxes so levied or imposed and paid by such Holder as a result of payments made under or with respect to the Notes or Notes, the Subsidiary Note Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts Mortgaged Vessel, as applicable, and (ii) any Taxes imposed with respect to any such payment reimbursement under the immediately preceding clause (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment datei), but excluding any such Taxes on such Holder’s net income, so that the Company net amount received by such Holder after such reimbursement will deliver to each Paying Agent an Officers’ Certificate stating not be less than the fact that net amount the Holder would have received if Taxes (other than such Additional Amounts will be payable, and the amount so payable and will set forth Taxes on such other information as necessary to enable Holder’s net income) on such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. reimbursement had not been imposed.
(c) Whenever in this Indenture there is mentioned, in any context, (ai) the payment of principal (and premium, if any)principal, (bii) purchase prices in connection with a purchase of the Notes, (ciii) interest or (div) any other amount payable on or with respect to any of the Notes Notes, or any payment pursuant to the Subsidiary GuaranteesNote Guarantees or in respect of any Collateral, such mention is shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(d) The foregoing obligations shall survive any defeasance or discharge of this Indenture.
(e) The Company or a Guarantor, as the case may be, will Guarantors shall pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue execution, delivery, enforcement or registration of the Notes the Note Guarantees or on a Mortgage or any other document or instrument in relation thereto, or the enforcement receipt of any payments with respect to the Notes, the Note Guarantees, or a Mortgage excluding such taxes, charges or similar levies imposed by any Subsidiary Guaranteejurisdiction outside of the Specified Tax Jurisdiction, the Indenture or jurisdiction of incorporation of any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations successor of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction and discharge of this Indenture or any transfer by a holder or beneficial owner of its notes, and will apply, mutatis mutandis, to any jurisdiction in which a paying agent is located, and hereby indemnifies the Holders for any successor Person to the Issuer or any Guarantor is incorporated, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereintaxes paid by such Holders.
Appears in 1 contract
Additional Amounts. (a) All payments made to a Holder or beneficial owner of a Note by or on behalf of the Company or any Guarantor Issuer under or with respect to the Notes or the Subsidiary Guarantees by or on behalf of any Guarantor pursuant to its Guarantee, will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”) taxes imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor (including any successor entities) is then organized or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”)Authority, unless the Company required by law or any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes under the laws of the Relevant Taxing Jurisdiction or by the interpretation or administration thereof by the relevant taxing authoritythereof. If the Company Issuer or any a Guarantor (or any Paying Agent) is so required obligated to withhold or deduct any amount for or on account of Taxes taxes imposed or levied by or on behalf of a any Relevant Taxing Jurisdiction Authority from any payment made under to a Holder or beneficial owner of a Note with respect to the Notes or the Subsidiary GuaranteesNotes, the Company Issuer or any such Guarantor will will:
(i) make such withholding or deduction;
(ii) remit the full amount deducted or withheld to the Relevant Taxing Authority in accordance with the applicable law;
(iii) subject to the limitations below, pay to each Holder of the Notes that are outstanding on the date of the required paymentHolder, as additional interest, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in all other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such each Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes taxes had not been withheld or deducted;
(iv) furnish to the Trustee for the benefit of the Holders, provided that no within 60 days after the date payment of any taxes are due pursuant to applicable law, certified copies of an official receipt of the Relevant Taxing Authority for all amounts deducted or withheld pursuant to applicable law, or if such receipts are not reasonably obtainable, other evidence of payment by the Issuer or such Guarantor of those taxes; and
(v) at least 15 days prior to each date on which any Additional Amounts are payable (or, if the obligation to pay any Additional Amounts does not arise more than 20 days prior to the applicable payment date, reasonably promptly after such obligation arises), deliver to the Trustee an Officers’ Certificate setting forth the calculation of the Additional Amounts to be paid and such other information as the Trustee may request to enable the Trustee to pay such Additional Amounts to Holders on the payment date.
(b) Notwithstanding Section 2.5(a), neither the Issuer nor a Guarantor will be payable pay Additional Amounts with respect to a payment made to any Note:Holder or beneficial owner of a Note (an “Excluded Holder”):
(ai) surrendered with which the Issuer, such Guarantor or any transferee to whom a Note is assigned or otherwise transferred, does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) at the time of making such payment;
(ii) that is a “specified non-resident shareholder” of the Issuer or such Guarantor or a non-resident person who does not deal at arm’s length with a specified shareholder of the Issuer or such Guarantor, both for the purposes of subsection 18(5) of the Income Tax Act (Canada);
(iii) which is subject to such taxes by reason of the Holder or the beneficial owner thereof for payment of principal more being a resident, domicile or national of, or engaged in business or maintaining a permanent establishment or other physical presence in or otherwise having some present or former connection with the Relevant Taxing Authority otherwise than 30 days after by the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by mere acquisition, holding, disposition or on behalf enforcement of the relevant Holder Notes or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders except to the extent that the Holder or the beneficial owner would have been entitled to such Additional Amounts on surrendering such Note for payment on any day during the applicable 30-day periodreceipt of payments thereunder;
(biv) if for or on account of any tax, assessment taxes imposed or other governmental charge is imposed deducted or withheld by reason of the failure to comply by of the Holder or, if different, the or beneficial owner (ayant-droit) of the Note with Notes to complete, execute and deliver to the Issuer or a request addressed Guarantor, as the case may be, any form or document, to the extent applicable to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of and such Holder or beneficial owner is legally eligible to comply with, that may be required by law (including any applicable tax treaty) or by reason of administration of such law and which is required reasonably requested in writing to be delivered to the Issuer or imposed such Guarantor in order to enable the Issuer or such Guarantor to make payments on the Notes or pursuant to any Guarantee, as the case may be, without deduction or withholding for taxes, or with deduction or withholding of a lesser amount, which form or document shall be delivered within 60 days of a written request therefor by a statute, treaty, regulation the Issuer or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental chargeGuarantor;
(cv) held by for or on behalf of a Holder or the beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any Note, or the receipt of payments made by or on behalf of the Company or any Guarantor in respect thereof or any Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a citizen or resident thereof or being or having been present or engaged in a trade or business therein or having had a permanent establishment therein;
(d) on account of any estate, inheritance, gift, salesales, wealth or net worth, goods and services, harmonized sales, transfer, capital gains, excise, personal property or other similar tax, assessment or other governmental charge;
(evi) except in the case of the winding up of the Company for or any Guarantor, any Note surrendered for payment in the Republic of France;
(f) as a result on account of any combination of (a)tax, (b)duty, (c), (d) assessment or (e) other governmental charge that is payable otherwise than by withholding from payments under or with respect to any payment made by or on behalf the Notes (other than taxes payable pursuant to Regulation 803 of the Company Income Tax Act (Canada), or any Guarantor in respect similar successor provision);
(vii) where the payment could have been made without deduction or withholding if the beneficiary of any the payment had presented the Note for payment within 30 days after the date on which such payment or Subsidiary Guarantee to any such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later;
(viii) if the Holder who is a fiduciary or fiduciary, partnership or person other than the sole beneficial owner of such payment that payment, to the extent that such payment would be required to be included in income under the laws of the Relevant Taxing Authority for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to any such Additional Amounts had such beneficiary or settlor that beneficiary, settler, partner or beneficial owner been the HolderHolder thereof;
(gix) such withholding or deduction that is imposed or levied on a payment to a Luxembourg resident individual and is required to be made pursuant to the Luxembourg law of 23 December 2005;under FATCA; or
(h) when such withholding or deduction is required to be made by reason of that interest being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A any combination of the French Code général des impôts;
(i) through (ix).
(c) Any reference in case this Indenture to the payment of Taxes which are principal, Premium, if any, interest, purchase price, redemption price or any other amount payable otherwise than by withholding or deduction from a payment made under or with respect to the Notes;
(j) when such withholding or deduction is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(k) Any combination of items (a) through (j) above. Notwithstanding any other provision of this Indenture, all amounts to be paid on the Notes by or on behalf of the Company or by any GuarantorNote, will be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company nor any other person, including any Guarantor, will be required to pay any Additional Amounts in respect of FATCA Withholding. The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will furnish, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the extent received from the relevant tax authorities in the usual course or as generally provided) evidencing that such payment has been made by the Company or any Guarantor. The Trustee will make such evidence available to the Holders upon request. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or the Subsidiary Guarantees is due and payable, in which case it will be paid promptly thereafter and in any case before the relevant payment date), the Company will deliver to each Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amount so payable and will set forth such other information as necessary to enable such Paying Agent to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned, in any context, (a) the payment of principal (and premium, if any), (b) purchase prices in connection with a purchase of the Notes, (c) interest or (d) any other amount payable on or with respect to any of the Notes or the Subsidiary Guarantees, such mention is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent, extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Company Issuer’s and the Guarantors’ obligation to make payments of Additional Amounts will survive any termination of this Indenture or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement defeasance of any rights thereunder.
(d) The Issuer and each Guarantor will, jointly and severally, indemnify and hold harmless each Holder or beneficial owner of a Note (other than an Excluded Holder) and upon written request reimburse each such Holder or beneficial owner of a Note for the amount of (i) any taxes so levied or imposed by a Relevant Taxing Authority and paid by such Holder or beneficial owner of a Note as a result of payments made under or with respect to the Notes, and (ii) any Subsidiary Guarantee, the Indenture taxes levied or any other documents related thereto (limited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in by a Relevant Taxing Jurisdiction that are not excluded under clauses (a) through (k) above). The obligations of the Company or any Guarantor described in this Section 4.19 will survive any termination, defeasance or satisfaction Authority and discharge of this Indenture or any transfer paid by a holder such Holder or beneficial owner of its notes, and will apply, mutatis mutandis, a Note with respect to any jurisdiction in reimbursement under (i) above, but excluding any such taxes with respect to which any successor Person to the Issuer such Holder or beneficial owner of a Note is an Excluded Holder or any Guarantor is incorporated, engaged in business for tax purposes income or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Notes and any department or any political subdivision thereof or thereinprofits taxes imposed by a Relevant Taxing Authority.
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Sources: Trust Indenture (Sunoco LP)