Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall be payable: (i) for or on account of: (A) any tax, duty, assessment or other governmental charge that would not have been imposed but for: (1) the existence of any present or former connection between the Holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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; (2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period; (3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or (4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere; (B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge; (C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any); (D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or (E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or (ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof. (b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 5 contracts
Sources: Indenture (Xinyuan Real Estate Co., Ltd.), Indenture (Xinyuan Real Estate Co., Ltd.), Indenture (Xinyuan Real Estate Co., Ltd.)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on on, the Notes or under the Subsidiary Guarantees and or the JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or (as defined under Section 5.01), an applicable Subsidiary Guarantor or an applicable JV Subsidiary Guarantor is organized or resident for tax purposes or any jurisdiction from or through which payment is made (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC ) (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or Person, the applicable Subsidiary Guarantor or the applicable JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or beneficial owner of such Note Note, Subsidiary Guarantee or Security Document, as the case may be, and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, as the case may be, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce would have reduced or eliminate eliminated any withholding or deduction as to which Additional Amounts would have otherwise been payable to such HolderHolder or beneficial owner; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principalthat is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive amending, premium (if any) and interest on the Notes supplementing or from payments under the Subsidiary Guarantees replacing such Directive or JV Subsidiary Guarantees (if any)any law implementing or complying with, or introduced in order to conform to, such Directive or Directives;
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction pursuant to implement the implementation of FATCA, or any other agreement with pursuant to the U.S. Internal Revenue Service under implementation of FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment payment, to the extent that such payment would be required to be included for tax purposes in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal ofprincipal, and any premium or interest onin respect of any Note, any Note or under any Subsidiary Guarantee or any JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(c) If the Company, any Subsidiary Guarantor or any JV Subsidiary Guarantor will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or the relevant Subsidiary Guarantees or JV Subsidiary Guarantees, the Company or such Subsidiary Guarantor or JV Subsidiary Guarantor shall deliver to the Trustee and the Agents, at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Company or such Subsidiary Guarantor or JV Subsidiary Guarantor, as applicable, shall notify the Trustee and the Agents promptly thereafter), an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount so payable. The Officers’ Certificate must also set forth any other information necessary to enable the Agents to pay Additional Amounts to the Holders on the relevant payment date.
Appears in 5 contracts
Sources: Indenture (Yin Jia Investments LTD), Indenture (Yin Jia Investments LTD), Indenture (Yin Jia Investments LTD)
Additional Amounts. (a) All payments in respect of principal this Guaranty will be made free and clear of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed (collectively, "TAXES") imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which Loral Space is then incorporated (or the Company, a Surviving Person jurisdiction of incorporation of any successor of Loral Space) or an applicable Subsidiary Guarantor any other jurisdiction in which Loral Space (or JV Subsidiary Guarantor such successor) is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC therein (each, as applicablehereinafter, a “Relevant Jurisdiction”"RELEVANT JURISDICTION"), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction in respect of such payment is so required, the CompanyLoral Space, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantorany successor, as the case may be, will shall pay such additional amounts (“Additional Amounts”"ADDITIONAL AMOUNTS") as will result in receipt by the each Holder of each a Note of such amounts gross amount as would have been received by such Holder or the beneficial owner with respect to such Note, as applicable, had no such withholding or deduction (including any withholding or deduction applicable to Additional Amounts payable) been required, except that no Additional Amounts shall will be payable:
(i) payable for or on account of:
(A1) any tax, duty, assessment or other governmental charge Taxes that would not have been imposed but for:
(1A) the existence of any present or former connection between the such Holder or such beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note Holder, if such Holder is an estate, trust, partnership or corporation) and the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, including such Holder (or beneficial owner such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary 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; or
(B) Section 881(c)(3)(A) of the Code (or any successor provision);
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property transfer or similar tax, assessment or other governmental charge;
(C3) any tax, assessment or other governmental charge Tax that is payable otherwise than imposed or withheld by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 reason of the Internal Revenue Code failure of 1986the Holder or beneficial owner of a Security to timely comply with a request of Loral Space, as amended addressed to the Holder (“FATCA”A) to provide reasonably required or requested information concerning the nationality, residence or identity of the Holder or such beneficial owner or (B) to make any reasonably required or requested declaration, filing or claim or satisfy any reasonably required or requested information or reporting requirement, which, in the case of (A) or (B), any current is required or future Treasury Regulations or rulings promulgated thereunderimposed by statute, any lawtreaty, regulation or other official guidance enacted in any administrative practice of the taxing jurisdiction implementing FATCAas a precondition to exemption from all or part of such Tax; provided, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAhowever, or any agreement with the U.S. that (i) providing information required by Internal Revenue Service under FATCAForms W-8, W-9, 1001 and 4224 and any successors thereto and (ii) the execution and delivery of such forms is deemed to be reasonably required or requested; or
(E4) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A1), (B), (C2) and (D3); or
nor shall Additional Amounts be paid with respect to payment of the principal of or any premium or interest on any such Note, to any Holder (iiincluding any fiduciary or partnership) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Holder thereofof the Note.
(b) Where required by applicable law, Loral Space or any Paying Agent, as the case may be, shall also (1) make such withholding or deduction in respect of any Taxes and (2) remit the full amount withheld or deducted to the relevant authority in accordance with applicable law. Loral Space shall furnish to each Holder of Notes, within 30 days after the date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts satisfactory to the Trustee evidencing such payment by Loral Space.
(c) Whenever there is mentioned in any context the payment of principal of, and of or any premium or interest on, or in respect of, a Note, or the net proceeds received from Loral Space on the sale or exchange of any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeNote, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture Section 4.15 to the extent that, in such context, Additional Amounts are, were were, or would be payable in respect thereofthereof pursuant to this Section 4.15.
(d) Loral Space 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 any jurisdiction from the execution, delivery, enforcement or registration of this Guaranty or any other document or instrument relating thereto, or the receipt of any payments with respect to the Notes, excluding such taxes, charges, or similar levies imposed by any jurisdiction outside of any jurisdiction in which Loral Space or the Paying Agent is located or incorporated (except those resulting from or required to be paid in connection with, the enforcement of Notes or any other such document or instrument following the occurrence of any Loral Space Event of Default with respect to the Notes), and shall indemnify the Holders for any such taxes paid by such Holders.
(e) The foregoing obligations shall survive any termination, defeasance or discharge of this Guaranty.
Appears in 5 contracts
Sources: Guaranty (Loral Space & Communications LTD), Guaranty (Loral Cyberstar Inc), Guaranty (Loral Space & Communications LTD)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on the Notes made by any Guarantor which is not formed or incorporated under the Subsidiary Guarantees and JV Subsidiary Guarantees laws of the United States or any State thereof (each a “non-US Guarantor”) under or with respect to such non-US Guarantor’s Guarantee will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of any Taxing Authority within the Netherlands, or within any other jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary such non-US Guarantor is organized or resident engaged in business for tax purposes, unless such non-US Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If any non-US Guarantor is required to withhold or deduct any amount for or on account of Taxes imposed by a Taxing Authority within the Netherlands, or within any other jurisdiction in which such non-US Guarantor is organized or engaged in business for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, of the PRC (each, as applicable, aforementioned being a “Relevant Taxing Jurisdiction”), from any payment made under or any jurisdiction through which payments are made, unless with respect to the Guarantee of such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary non-US Guarantor, as the case may be, such non-US Guarantor will pay such additional amounts (“Additional Amounts”) as will result in receipt by may be necessary so that the Holder of each Note of such amounts as would have been net amount received by such Holder had no each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount the holder would have received if such Taxes had not been requiredwithheld or deducted; provided, except however, that no Additional Amounts shall will be payablepayable with respect to:
(i1) for any Tax imposed by the United States or on account of:by any political subdivision or taxing authority thereof or therein;
(A2) any tax, duty, assessment or other governmental charge Taxes that would not have been imposed so imposed, deducted or withheld but for:
(1) for the existence of any present or former connection between the Holder or beneficial owner of such Note and a Security (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Security, if the Holder or beneficial owner is an estate, nominee, trust, partnership or corporation) and the relevant Taxing 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;
(2) other than the presentation mere receipt of such Note (in cases in which presentation is required) more than 30 days after payment or the later ownership or holding of the date on which the payment execution, delivery, registration or enforcement of the principal of, premium, if any, and interest on, such 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 date within such 30-day periodSecurity);
(3) any estate, inheritance, gift, sales excise, transfer or personal property tax or similar tax, assessment or governmental charge, subject to the failure last paragraph of this Section 11.03;
(4) any Taxes payable otherwise than by deduction or withholding from payments under or with respect to the Guarantee of such Security;
(5) any Taxes that would not have been so imposed, deducted or withheld if the Holder or beneficial owner to comply with a timely request of the CompanySecurity or beneficial owner of any payment on the Guarantee of such Security had (i) made a declaration of non-residence, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed other claim or filing for exemption, to which it is entitled or (ii) complied with any certification, identification, information, documentation or other reporting requirement concerning the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner of such Security or any Relevant payment on such Security (provided that (x) such declaration of non-residence or other claim or filing for exemption or such compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of the imposition, deduction or withholding of, such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or Filing for exemption or such compliance is required under the applicable law of the Taxing Jurisdiction, Holders at that time have been notified by such Guarantor or any other person through whom payment may be made that a declaration of non-residence or other claim or Filing for exemption or such compliance is required to be made);
(6) any Taxes that would not have been so imposed, deducted or withheld if the beneficiary of the payment had presented the Security for payment within 30 days after the date on which such payment or such Security became due and payable or the jurisdiction through date on which payments are madepayment thereof is duly provided for, if and whichever is later (except to the extent that due and timely compliance with such request is required under the tax laws Holder would have been entitled to Additional Amounts had the Security been presented on the last day of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any30-day period);
(D7) any tax, assessment, withholding payment under or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) respect to a Security to any Holder that is a fiduciary, fiduciary or partnership or any person other than the sole beneficial owner of any such payment or Security, to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, or a member of that such partnership or a the beneficial owner who of such payment, or Security would not have been entitled to such the Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the actual Holder thereofof such Security;
(8) any note where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to Council Directive 2003/48/EC of June 3, 2003 on taxation of savings income in the form of interest payments or any law implementing or complying with, or introduced in order to conform to, that Directive; or
(9) any combination of items (1) through (8) above.
(b) Whenever there is mentioned The foregoing provisions shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor Person to a non-US Guarantor.
(c) Each applicable non-US Guarantor will also make any applicable withholding or deduction and remit the full amount deducted or withheld to the relevant authority in any context accordance with applicable law. Each applicable non-US Guarantor will furnish to the Trustee, within 30 days after the date the payment of principal ofany Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts or, if such tax receipts are not reasonably available to such non-US Guarantor, such other documentation that provides reasonable evidence of such payment by such non-US Guarantor. Copies of such receipts or other documentation will be made available to the Holders or the paying agents, as applicable, upon request.
(d) At least 30 days prior to each date on which any payment under or with respect to any Security is due and payable, unless such obligation to pay Additional Amounts arises after the 30th day prior to such date, in which case it shall be promptly paid thereafter, if any premium non-US Guarantor will be obligated to pay Additional Amounts with respect to such payment, such non-US Guarantor will deliver to the Trustee and the paying agent an Officer’s 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 such Trustee and paying agent to pay such Additional Amounts to Holders of such Securities on the payment date. Each Officer’s Certificate shall be relied upon until receipt of a further Officer’s Certificate addressing such matters.
(e) Whenever in this Indenture there is mentioned, in any context, the payment of principal, premium, if any, interest or interest on, of any Note other amount payable under or under with respect to any Subsidiary Guarantee or JV Subsidiary GuaranteeSecurity, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-US Guarantors 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 any jurisdiction from the execution, delivery, enforcement or registration of their respective Guarantees of the Securities, this Indenture or any other document or instrument in relation thereto, excluding all such taxes, charges or similar levies imposed by any jurisdiction outside the United States in which any non-US Guarantor or any successor Person is organized or resident for tax purposes or any jurisdiction in which a paying agent is located, and the non-US Guarantors will agree to indemnify the Holders of the Notes for any such non-excluded taxes paid by such Holders.
Appears in 4 contracts
Sources: Indenture (Buhrmann Nederland B.V.), Indenture (Asap Software Express Inc), Indenture (Asap Software Express Inc)
Additional Amounts. (a) All payments made by the Company under or with respect to the Securities and by the Guarantor under or with respect to the Guarantee (the Issuer and the Guarantor being referred to for purposes of principal this section "Additional Amounts" individually as an "Obligor" and collectively as the "Obligors") will be made free and clear of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, for or on account of, any present or future taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges of whatever nature charge imposed or levied by or within on behalf of the Government of Canada or of any jurisdiction in which the Company, a Surviving Person province or an applicable Subsidiary Guarantor territory thereof or JV Subsidiary Guarantor is organized by any authority or resident for agency therein or thereof having power to tax purposes (or the jurisdiction of incorporation of any political subdivision or taxing authority thereof or thereinsuccessor of any Obligor) (hereunder "Taxes"), including, without limitation, unless the PRC (each, as applicable, a “Relevant Jurisdiction”), applicable Obligor or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantorsuccessor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant governmental authority or agency. If any Obligor or any successor, as the case may be, is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Securities or the Guarantee, such Obligor will pay such additional amounts (“"Additional Amounts”") as will result in receipt by may be necessary so that the Holder of each Note of such amounts as would have been net amount received by such each Holder had no (including Additional Amounts) after such withholding or deduction will not be less than the amount the Holder would have received if such Taxes had not been required, except withheld or deducted; provided that no Additional Amounts shall will be payable:
payable with respect to a payment made to a Holder (an "Excluded Holder") in respect of a beneficial owner (i) for with which the Company does not deal at arm's length (within the meaning of the Income Tax Act (Canada)) at the time of making such payment or on account of:
(Aii) which is subject to such Taxes by reason of its being connected with Canada or any taxprovince or territory thereof otherwise than by the mere acquisition, duty, assessment holding or other governmental charge that would not have been imposed but for:
(1) disposition of the existence of any present or former connection between the Holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note Securities or the receipt of payments thereunder thereunder. The Obligors will also (i) make such withholding or under a Subsidiary Guarantee deduction and (ii) remit the full amount deducted or JV Subsidiary Guaranteewithheld to the relevant government authority in accordance with applicable law. The Obligors will furnish to the Holders, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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;
(2) the presentation of such Note (in cases in which presentation is required) more than within 30 days after the later date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts evidencing such payment. The Obligors will, jointly and severally, 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 Securities or the Guarantee, (ii) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, and (iii) any Taxes imposed with respect to any reimbursement under (i) or (ii) so that the net amount received by such Holder after such reimbursement will not be less than the net amount the Holder would have received if Taxes on such reimbursement had not been imposed. At least 30 days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Company will be obligated to pay Additional Amounts with respect to such payment, the Company will deliver to the Trustee an Officers' Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information necessary to enable such Trustee to pay such Additional Amounts to Holders on the payment date. Whenever this Indenture mentions, in any context, the payment of the principal of, (and premium, if any), and redemption price, interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s other amount payable under or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeSecurity, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.. 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 any jurisdiction from the execution, delivery, enforcement or registration of the Securities or any other document or instrument in relation thereto, or the receipt of any payments with respect to the Securities, excluding such taxes, charges or similar levies imposed by any jurisdiction outside of Canada, the jurisdiction of incorporation of any successor of the Company or any jurisdiction in which a paying agent is located, and has agreed to indemnify the Holders for any such taxes paid by such Holders. The foregoing obligations shall survive any termination, defeasance or discharge of this Indenture and the payment of all amounts owing under or with respect to the Securities and the Guarantee. ARTICLE ELEVEN
Appears in 4 contracts
Sources: Senior Indenture (Brown Tom Inc /De), Subordinated Indenture (Brown Tom Inc /De), Subordinated Indenture (Brown Tom Inc /De)
Additional Amounts. (a) All payments of of, or in respect of, principal of, and premium (if any) and interest on (including PIK Interest) in respect of the Notes (including PIK Notes) or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an the applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC ) (each, as applicable, each a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note or the Subsidiary Guarantees, as the case may be, of such amounts as would have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(i1) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
: (1i) the existence of any present or former connection between the Holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary GuaranteeNote, including, without limitation, including such Holder or beneficial owner being or having been a national, domiciliary 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;
; (2ii) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-30 day period;
; (3iii) the failure of the Holder or beneficial owner Holder, despite being required by law, to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor Company addressed to the Holder or beneficial owner to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce would have reduced or eliminate eliminated any withholding or deduction taxes as to which Additional Amounts would have otherwise been payable to such Holder; or
or (4iv) the presentation of such Note (in cases in which where presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments that is imposed or levied on a payment to an individual and is required to be made pursuant to European Council Directive 2004/48/EC or any other Directive implementing the conclusions of principalthe ECOFIN Council meeting of November 26-27, premium (if any) and interest 2000 on the Notes taxation of savings income or from payments under the Subsidiary Guarantees any law implementing or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAcomplying with, or any agreement with the U.S. Internal Revenue Service under FATCAintroduced in order to conform to, such Directives; or
(ED) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (DC); or
(ii2) with respect to a any payment of the principal of, or any premium, if any, or interest on, such Note or any payment under any Subsidiary Guarantee to the Holder, if such Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, for tax purposes, of a beneficiary or settlor settlor, with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner partner, person or beneficial owner been the registered Holder thereof.
(b) Whenever in this Indenture or in the Notes there is mentioned mentioned, in any context context, the payment of principal ofprincipal, and any premium or interest oninterest, in respect of any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 4 contracts
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on that the Issuers make under or with respect to the Notes and that any Guarantor makes under or under the Subsidiary Guarantees and JV Subsidiary Guarantees with respect to 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 taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied by or within on behalf of Canada, the United States, or any other jurisdiction in which the Company, a Surviving Person either Issuer or an applicable Subsidiary Guarantor or JV Subsidiary any Guarantor is incorporated, organized or otherwise resident or engaged in or carrying on business for tax purposes (or from or through which either of the Issuers, any Guarantor or any of their paying agents makes any payment on the Notes or Guarantee, or by, in each case any political subdivision or taxing authority or agency thereof or therein), including, without limitation, the PRC therein (each, as applicable, a “Relevant Taxing Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is then required by law or by regulation or governmental policy having the force of law. In the event that If either Issuer or any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary any other applicable withholding agent is required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Guarantee, such Issuer or such Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by may be necessary to ensure that the Holder of each Note of such amounts as would have been net amount received by such each Holder had no or beneficial owner of the Notes after such withholding or deduction (including any withholding or deduction attributable to the Additional Amounts) will be not less than the amount the Holder or beneficial owners would have received if such Taxes had not been requiredrequired to be withheld or deducted.
(b) Neither the Issuers nor any Guarantor will, except that no however, pay Additional Amounts shall be payable:
(i) for in respect or on account of:
(A1) any tax, duty, assessment or other governmental charge Taxes that would not have been imposed or levied but for:
(1) the existence of any for a present or former connection (including, but not limited to, citizenship, nationality, residence, domicile, incorporation, or existence of a business, a permanent establishment, a dependent agent, a place of business or a place of management present or deemed present within such Relevant Taxing Jurisdiction) between the such Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitationpower over, such Holder or beneficial owner, if such Holder or beneficial owner being is an estate, trust, partnership, limited liability company or having been a nationalcorporation) and the Relevant Taxing Jurisdiction (other than any connection arising solely from the acquisition, domiciliary ownership or resident disposition of such Relevant Jurisdiction the Notes, the receipt of payments under or treated as a resident thereof with respect to the Notes or being any Guarantee, or having been physically present the exercise or engaged in a trade enforcement of rights under or business therein with respect to the Notes, this Indenture or having or having had a permanent establishment thereinany Guarantee);
(2) the presentation any Taxes that are imposed or withheld by reason of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely of Notes, following the Issuers’ written request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder (and made at a time that would enable the Holder or beneficial owner acting reasonably to provide information concerning such Holder’s comply with that request, and in all events at least 30 calendar days before the relevant date on which payment under or its beneficial owner’s nationality, residence, identity with respect to the Notes or connection any Guarantee is due and payable) to comply with any certification or identification requirements, whether required or imposed by statute, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the jurisdiction through which payments are madeRelevant Taxing Jurisdiction), if and but in each case only to the extent that due and timely compliance with the Holder or beneficial owner, as the case may be, is legally eligible to provide such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewherecertification;
(B3) any estate, inheritance, gift, salesales, transfer, personal property or similar tax, assessment or other governmental chargeTaxes;
(C4) any tax, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding or deduction from payments made under or with respect to the Notes;
(5) any Canadian Taxes paid or payable by reason of principal(i) the Holder, premium beneficial owner or other recipient of the amount not dealing at arm’s length with the Issuer or a Guarantor for the purposes of the Income Tax Act (if anyCanada), or (ii) and interest on the Notes Holder or from payments under beneficial owner being, or not dealing at arm’s length with, a “specified shareholder” of the Subsidiary Guarantees or JV Subsidiary Guarantees Issuer for the purposes of subsection 18(5) of the Income Tax Act (if anyCanada);
(D6) any tax, assessment, withholding Tax imposed on or deduction required with respect to any payment by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current Issuers or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between a Guarantor to the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that if such Holder is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of any such payment to the extent that Taxes would not have been imposed on such payment had the beneficiary, partner or other beneficial owner directly held the Note;
(7) any Tax that is imposed or levied by reason of the presentation (where presentation is required 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 or Holder thereof would be have been entitled to Additional Amounts had the Notes been presented for payment on any date during such 30 day period;
(8) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed or levied on a payment to an individual and is required to be included made pursuant to European Council Directive 2003/48/EC or any other European Council Directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income or any law implementing or complying with, or introduced in the income under the laws order to conform to, such European Council Directive;
(9) any Tax that is imposed or levied on or with respect to a Note presented for payment on behalf of a Relevant Jurisdiction Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the jurisdiction relevant Note to another paying agent in a member state of the European Union;
(10) any Taxes imposed pursuant to Sections 1471 through 1474 of the Code as of the Issue Date (and any amended or successor version that is substantially comparable) any regulations or other official guidance thereunder or agreements (including any intergovernmental agreements or any laws, rules or practices implementing such intergovernmental agreements) entered into in connection therewith; or
(11) any backup withholding pursuant to Section 3406 of the Code. In addition, Additional Amounts will not be payable with respect to any Taxes that are imposed in respect of any combination of the above items.
(c) The Issuers and each Guarantor, if they are applicable withholding agents (or are otherwise required to withhold amounts under applicable law), will (i) make such withholding or deduction required by applicable law and (ii) remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which payments are made, for tax purposes, of a beneficiary any payment under or settlor with respect to the fiduciaryNotes is due and payable, if the Issuers and any Guarantor 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 a member of with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Issuers will deliver to the Trustee an Officer’s Certificate stating that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had will be payable and the amounts so payable and will set forth such other information (other than the identities of Holders and beneficial owners) necessary to enable the Trustee or Paying Agent, as the case may be, to pay such Additional Amounts to Holders and beneficial owners on the relevant payment date. The Trustee will make such payments in the same manner as any other payments on the Notes. The Issuers will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing payment of such Additional Amounts.
(e) Upon request, the Issuers 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 or other evidence of the payment by the Issuers or such Guarantor, as the case may be, of any Taxes imposed or levied by a Relevant Taxing Jurisdiction.
(f) The Issuers and each Guarantor will pay any present or future stamp, issue, registration, court documentation, excise or property taxes or other similar taxes, charges and duties, including interest, additions to tax and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the receipt of any payment under or with respect to the Notes or any Guarantee, the execution, issue, delivery or registration of the Notes, any Guarantee or this Indenture or any other document or instrument referred to thereunder and any such taxes, charges, duties or similar levies imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes, such Guarantee or this Indenture or any such other document or instrument following the occurrence of any Event of Default with respect to the Notes. Neither the Issuers nor any Guarantor will, however, pay such amounts that beneficiary, settlor, partner are imposed on or result from a sale or other transfer or disposition by a Holder or beneficial owner been the Holder thereofof a Note.
(bg) Whenever there The preceding provisions will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor person to the Issuers or any Guarantor is mentioned organized, incorporated or otherwise resident or engaged in any context the payment of principal of, or carrying on business for tax purposes and any premium political subdivision or interest on, any Note taxing authority or under any Subsidiary Guarantee agency thereof or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereoftherein.
Appears in 4 contracts
Sources: Indenture (Restaurant Brands International Inc.), Indenture (Restaurant Brands International Limited Partnership), Indenture (Burger King Worldwide, Inc.)
Additional Amounts. (a) All payments (including any premium paid upon redemption of principal the Notes) by or on behalf of the Issuer or a successor in respect of the Notes or the Guarantors or a successor in respect of the Note Guaranties will be made free and clear of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, of any present or future taxes, duties, assessments assessments, or other governmental charges of whatever nature (“Taxes”) imposed or levied by or within on behalf of Brazil, the United States, or any authority therein or thereof or any other jurisdiction in which the CompanyIssuer or the Guarantors (in each case, a Surviving Person their successor) are organized, doing business or an applicable Subsidiary Guarantor from or JV Subsidiary Guarantor is organized or resident for tax purposes (through which payments are made in respect of the Notes, or any political subdivision or taxing authority thereof or therein), including, without limitation, therein (any of the PRC (each, as applicable, aforementioned being a “Relevant Taxing Jurisdiction”), unless the Issuer or any jurisdiction through which payments the Guarantors (or their respective successor) are madecompelled by law to deduct or withhold such taxes, unless duties, assessments, or governmental charges. In such event, the Issuer or the Guarantors (or their respective successor) will make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and pay such Additional Amounts as may be necessary to ensure that the net amounts received by registered Holders of Notes after such withholding or deduction is required by law shall equal the respective amounts of principal and interest (or by regulation or governmental policy having other amounts stated to be payable under the force Notes) which would have been received in respect of law. In the event that any Notes in the absence of such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by ). Notwithstanding the Holder of each Note of such amounts as would have been received by such Holder had foregoing, no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(i) to, or to a third party on behalf of, a Holder who is liable for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) such Taxes in respect of such Note by reason of the existence of any present or former connection between the such Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of such Note Holder, if such Holder is an estate, a trust, a partnership, or a corporation) and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guaranteerelevant Taxing Jurisdiction, including, without limitation, such Holder (or beneficial owner such fiduciary, settlor, beneficiary, member or shareholder) being or having been a national, domiciliary 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 or present therein or having having, or having had had, a permanent establishment therein, other than the mere holding of the Note or enforcement of rights under the Indenture and the receipt of payments with respect to the Note;
(2ii) in respect of Taxes that would not have been so withheld or deducted if the presentation of such Note notes had been surrendered or presented for payment (in cases in which presentation if surrender or presentment is required) not more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date except to the extent that payments under such Note would have been subject to withholdings and the Holder thereof of such Note would have been entitled to such Additional Amounts if it had presented Amounts, on surrender of such Note for payment on any date within the last day of such 30-day periodperiod of 30 days;
(3iii) the to, or to a third party on behalf of, a Holder who is liable for such Taxes by reason of such Holder’s failure of the Holder or beneficial owner to comply with a timely request of any certification, identification, documentation or other reporting requirement concerning the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant the relevant Taxing Jurisdiction or the jurisdiction through which payments are madeof such Holder, if and to the extent that due and timely (1) compliance with such request is required under by law or an applicable income treaty as a precondition to, exemption from, or reduction in the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
rate of, the Tax, and (42) the presentation of Issuer has given the Holders at least 30 days’ notice that Holders will be required to provide such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction certification, identification, documentation or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhereother requirement;
(Biv) in respect of any estate, inheritance, gift, salesales, transfer, excise or personal property or similar taxTax, assessment or other governmental chargethan as provided in Section 4.06(g) of the Indenture;
(Cv) in respect of any tax, assessment or other governmental charge that Tax which is payable otherwise other than by deduction or withholding or deduction from payments of principal, premium principal of (if anyincluding premium) and or interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCANote; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 3 contracts
Sources: Indenture (Azul Sa), Indenture (Azul Sa), Indenture (Azul Sa)
Additional Amounts. (a) All payments in respect of principal this Guaranty will be made free and clear of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed (collectively, "TAXES") imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which Loral Space is then incorporated (or the Company, a Surviving Person jurisdiction of incorporation of any successor of Loral Space) or an applicable Subsidiary Guarantor any other jurisdiction in which Loral Space (or JV Subsidiary Guarantor such successor) is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC therein (each, as applicablehereinafter, a “Relevant Jurisdiction”"RELEVANT JURISDICTION"), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction in respect of such payment is so required, the CompanyLoral Space, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantorany successor, as the case may be, will shall pay such additional amounts (“Additional Amounts”"ADDITIONAL AMOUNTS") as will result in receipt by the each Holder of each a Subordinated Note of such amounts gross amount as would have been received by such Holder or the beneficial owner with respect to such Subordinated Note, as applicable, had no such withholding or deduction (including any withholding or deduction applicable to Additional Amounts payable) been required, except that no Additional Amounts shall will be payable:
(i) payable for or on account of:
(A1) any tax, duty, assessment or other governmental charge Taxes that would not have been imposed but for:
(1A) the existence of any present or former connection between the such Holder or such beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note Holder, if such Holder is an estate, trust, partnership or corporation) and the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, including such Holder (or beneficial owner such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary 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; or
(B) Section 881(c)(3)(A) of the Code (or any successor provision);
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property transfer or similar tax, assessment or other governmental charge;
(C3) any tax, assessment or other governmental charge Tax that is payable otherwise than imposed or withheld by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 reason of the Internal Revenue Code failure of 1986the Holder or beneficial owner of a Security to timely comply with a request of Loral Space, as amended addressed to the Holder (“FATCA”A) to provide reasonably required or requested information concerning the nationality, residence or identity of the Holder or such beneficial owner or (B) to make any reasonably required or requested declaration, filing or claim or satisfy any reasonably required or requested information or reporting requirement, which, in the case of (A) or (B), any current is required or future Treasury Regulations or rulings promulgated thereunderimposed by statute, any lawtreaty, regulation or other official guidance enacted in any administrative practice of the taxing jurisdiction implementing FATCAas a precondition to exemption from all or part of such Tax; provided, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAhowever, or any agreement with the U.S. that (i) providing information required by Internal Revenue Service under FATCAForms W-8, W-9, 1001 and 4224 and any successors thereto and (ii) the execution and delivery of such forms is deemed to be reasonably required or requested; or
(E4) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A1), (B), (C2) and (D3); or
nor shall Additional Amounts be paid with respect to payment of the principal of or any premium or interest on any such Subordinated Note, to any Holder (iiincluding any fiduciary or partnership) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Holder thereofof the Subordinated Note.
(b) Where required by applicable law, Loral Space or any Paying Agent, as the case may be, shall also (1) make such withholding or deduction in respect of any Taxes and (2) remit the full amount withheld or deducted to the relevant authority in accordance with applicable law. Loral Space shall furnish to each Holder of Subordinated Notes, within 30 days after the date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts satisfactory to the Holders of the Subordinated Notes evidencing such payment by Loral Space.
(c) Whenever there is mentioned in any context the payment of principal of, and of or any premium or interest on, or in respect of, a Subordinated Note, or the net proceeds received from Loral Space on the sale or exchange of any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeSubordinated Note, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture Section 4.15 to the extent that, in such context, Additional Amounts are, were were, or would be payable in respect thereofthereof pursuant to this Section 4.15.
(d) Loral Space 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 any jurisdiction from the execution, delivery, enforcement or registration of this Guaranty or any other document or instrument relating thereto, or the receipt of any payments with respect to the Subordinated Notes, excluding such taxes, charges, or similar levies imposed by any jurisdiction outside of any jurisdiction in which Loral Space or the Paying Agent is located or incorporated (except those resulting from or required to be paid in connection with, the enforcement of Subordinated Notes or any other such document or instrument following the occurrence of any Loral Space Event of Default with respect to the Subordinated Notes), and shall indemnify the Holders for any such taxes paid by such Holders.
(e) The foregoing obligations shall survive any termination, defeasance or discharge of this Guaranty.
Appears in 3 contracts
Sources: Subordinated Guaranty (Loral Space & Communications LTD), Subordinated Guaranty (Loral Cyberstar Inc), Subordinated Guaranty (Loral Cyberstar Inc)
Additional Amounts. (a) All payments Amounts to be paid on any series of principal of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees Subordinated Debt Securities will be made without deduction or withholding or deduction for, or on account of, any and all present or and future income, stamp and other taxes, levies, imposts, duties, assessments charges or governmental charges of whatever nature imposed fees imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which on behalf of the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (United Kingdom or any political subdivision or taxing authority thereof or therein), including, without limitation, therein having the PRC power to tax (each, as applicable, a the “Relevant Taxing Jurisdiction”), or any jurisdiction through which payments are made, unless such deduction or withholding or deduction is required by law or by regulation or governmental policy having the force of law. In If at any time a Taxing Jurisdiction requires the event that any Company to make such withholding deduction or deduction is so requiredwithholding, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Company will pay such additional amounts with respect to the principal of, interest and any other payment on, the Subordinated Debt Securities (“Additional Amounts”) as will result that are necessary in receipt by order that the Holder net amounts paid to the Holders of each Note Subordinated Debt Securities of such the particular series, after the deduction or withholding, shall equal the amounts as which would have been received by such Holder payable on the Subordinated Debt Securities if the deduction or withholding had no such withholding or deduction not been required. However, except that no Additional Amounts shall be payablethis will not apply to any such tax, levy, impost, duty, charge or fee, which would not have been deducted or withheld but for the fact that:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or beneficial owner the Beneficial Owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are madeSubordinated Debt Security is a domiciliary, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary national or resident of such Relevant Jurisdiction of, or treated as a resident thereof engaging in business or being or having been physically present or engaged in a trade or business therein or having or having had maintaining a permanent establishment therein;or physically present in, the Taxing Jurisdiction or otherwise having some connection with the Taxing Jurisdiction other than the holding or ownership of a Subordinated Debt Security, or the collection of any payment of, or in respect of, principal of, or any interest or other payment on, any Subordinated Debt Security of the relevant series,
(2ii) except in the presentation case of such Note winding-up in the United Kingdom, the relevant Subordinated Debt Security is presented (in cases in which where presentation is required) for payment in the United Kingdom,
(iii) the relevant Subordinated Debt Security is presented (where presentation is required) for payment more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the Holder thereof would have been entitled to such the Additional Amounts if it had presented such Note on presenting the same for payment on any date within such 30-at the close of that 30 day period;,
(3iv) the failure Holder or the Beneficial Owner of the relevant Subordinated Debt Security or the Beneficial Owner of any payment of, or in respect of, principal of, or any interest or other payment on, the Subordinated Debt Security failed to comply with a request of the Company or its liquidator or other authorized person addressed to the Holder (x) to provide information concerning the nationality, residence or identity of the Holder or beneficial owner the Beneficial Owner or (y) to comply with make any declaration or other similar claim to satisfy any requirement, which in the case of (x) or (y), is required or imposed by a timely request statute, treaty, regulation or administrative practice of the CompanyTaxing Jurisdiction as a precondition to exemption from all or part of the tax, a Surviving Personlevy, any Subsidiary Guarantor impost, duty, charge or fee,
(v) the withholding or deduction is required to be made pursuant to European Council Directive 2003/48/EC on the taxation of savings income, or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning directive amending, supplementing or replacing such Holder’s directive or its beneficial owner’s nationalityany law implementing or complying with, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction introduced in order to reduce conform to, such directive or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; ordirectives,
(4vi) the presentation of such Note relevant Subordinated Debt Security is presented (in cases in which where presentation is required) for payment in the Relevant Jurisdiction by or the jurisdiction through which payments are made, unless such Note could not on behalf of a Holder who would have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by able to avoid such withholding or deduction from payments of principal, premium (if any) and interest on by presenting the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);relevant Subordinated Debt Security to another paying agent,
(Dvii) any tax, assessment, the deduction or withholding or deduction required is imposed by sections 1471 through reason of Sections 1471-1474 of the US Internal Revenue Code of 1986, as amended and the U.S. Treasury regulations thereunder or any agreement with the U.S. Internal Revenue Service in connection with these sections and regulations (“FATCA”), any current intergovernmental agreement between the United States and the United Kingdom or future Treasury Regulations any other jurisdiction with respect to FATCA, or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCAimplementing, or relating to, FATCA or any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAagreement, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(Eviii) any combination of taxessubclauses (i) through (vii) above, duties, assessments nor shall Additional Amounts be paid with respect to the principal of or any interest or other governmental charges referred payment on, the Subordinated Debt Securities to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a any Holder that who is a fiduciary, fiduciary or partnership or any person other than the sole beneficial owner Beneficial Owner of any such payment to the extent that such payment would be required by the laws of any Taxing Jurisdiction to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, purposes of a beneficiary or partner or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a beneficial owner Beneficial Owner who would not have been entitled to such Additional Amounts Amounts, had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
(b) Holder. Whenever in this Subordinated Indenture there is mentioned mentioned, in any context context, the payment of the principal of or any interest or other payments on, or in respect of, and any premium or interest on, Subordinated Debt Security of any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, series such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to the provisions of this Section and as if express mention of the payment of Additional Amounts (if applicable) were made in any provisions hereof where such express mention is not made. Upon request from the Trustee or a paying agent, the Company shall provide information reasonably necessary and readily available in order to enable to the Trustee or paying agent to determine whether any withholding obligations under FATCA apply. None of the Company, the Trustee or a paying agent shall have any liability in connection with the Company’s or Trustee’s or paying agent’s compliance with any such withholding obligation under applicable law.
Appears in 3 contracts
Sources: Fifth Supplemental Indenture (Lloyds Banking Group PLC), Second Supplemental Indenture (Lloyds Bank PLC), Fourth Supplemental Indenture (Lloyds Banking Group PLC)
Additional Amounts. (ai) All payments of principal of, and premium (if any) and interest on due to be made by the Notes or Insurance Company to the Owner under the Subsidiary Guarantees and JV Subsidiary Guarantees terms of this Contract will be made without any withholding or deduction for, for or on account ofof any Taxes unless the Insurance Company has specified in Schedule A that they have agreed to pay Additional Amounts or such withholding or deduction is required by law. Subject to Section 4.3, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless if such withholding or deduction is required by law and the Insurance Company has specified in Schedule A that they have agreed to pay Additional Amounts, the Insurance Company will pay such Additional Amounts as may be required so that the amount received by the Trust or by regulation or governmental policy having the force a Beneficial Note Owner under its Note(s), as applicable (net of law. In the event that any such withholding or deduction is so requiredunder this Contract or any Note(s)), will equal the Company, a Surviving Person amount that would have been paid under this Contract or the applicable Subsidiary Guarantor or JV Subsidiary Guarantorunder any such Note(s), as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder had no such deduction or withholding or deduction been required.
(ii) Notwithstanding anything herein to the contrary, except that no the Insurance Company shall not be required to make any payment of any Additional Amounts shall be payable:
(iin accordance with Section 3.6(i) for or on account of:
(Aa) any tax, duty, assessment or other governmental charge that Taxes imposed which would not have been imposed but for:
for the existence of (1) the existence of any present or former connection between the Holder Trust or beneficial owner of such a Beneficial Note Owner and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary GuaranteeUnited States, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary citizen or resident of such Relevant Jurisdiction or treated as a resident thereof thereof, or being or having been physically present therein or engaged in a trade or business therein therein, or (2) the Trust's or such Beneficial Note Owner’s status as incorporated therein, or having or having had a permanent establishment therein, or being or having been a controlled foreign corporation, a personal holding company, a passive foreign investment company, a corporation that has accumulated earnings to avoid United States federal income tax or a private foundation or other tax-exempt organization, or being or having been an actual or constructive owner of 10% or more of the total combined voting power of all shares of the Insurance Company;
(2b) any Taxes imposed which would not have been imposed but for the presentation by the Trust of such this Contract or by a Beneficial Note Owner of any related Note(s) to the Trust (in cases in which where presentation is required) for payment on a date more than 30 days after the later of date on which such payment becomes due and payable or the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or is duly provided for, whichever occurs later, except to the extent that the Holder thereof Trust or the Beneficial Note Owner would have been entitled to such Additional Amounts if it had this Contract or the Note(s), as the case may be, been presented on the last day of such Note for payment on any date within such 30-day periodperiod of 30 days;
(3c) any Taxes which are imposed or withheld solely by reasons of the failure of the Holder Trust or beneficial owner a Beneficial Note Owner to comply with a timely request of certification, identification or information reporting requirements concerning the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction the United States of the Trust or the jurisdiction through which payments are madeBeneficial Note Owner, if and to the extent that due and timely compliance with such request is required under by statute, by regulation of the tax laws United States Treasury Department, by judicial or administrative interpretation of such jurisdiction in order to reduce statute or eliminate any withholding regulation or deduction as by an applicable income tax treaty to which Additional Amounts would have otherwise been payable the United States is a party as a precondition to exemption from such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhereTaxes;
(Bd) any estate, inheritance, gift, sale, transferestate, personal property property, sales or similar tax, assessment or other governmental chargetransfer Taxes;
(Ce) any tax, assessment or other governmental charge Taxes that is are payable otherwise than by withholding or deduction from payments in respect of principal, premium this Contract or the related Notes;
(if anyf) and any Taxes which are imposed by reason of the Trust or a Beneficial Note Owner being or having been a bank for United States federal income tax purposes whose receipt of interest on the Notes or from payments under is described in section 881(c)(3)(A) of the Subsidiary Guarantees or JV Subsidiary Guarantees (if any)Code;
(Dg) any Taxes imposed by reason of payments on this Contract or the related Notes being treated as contingent interest described in section 871(h)(4) of the Code;
(h) any Taxes that would not have been imposed but for an election by the Trust or a Beneficial Note Owner the effect of which is to make payment in respect of the Notes subject to United States federal income tax;
(i) any tax, assessmentduty, withholding levy, assessment or deduction required by sections 1471 through 1474 governmental charge of any taxing authority other than the Internal Revenue Code of 1986, as amended (“FATCA”)United States, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, political subdivision thereof or any agreement with authority or agency therein or thereof having the U.S. Internal Revenue Service under FATCApower to tax; or
(Ej) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses items (Aa), (Bb), (Cc), (d), (e), (f), (g), (h) and (D); or
(iii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereofabove.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 3 contracts
Sources: Funding Agreement (Ing Usa Annuity & Life Insurance Co), Funding Agreement (ING USA Global Funding Trust 1), Funding Agreement (Ing Usa Annuity & Life Insurance Co)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on Payments made by the Notes Issuer or under the Subsidiary Guarantees and JV Subsidiary Guarantees Guarantor pursuant to the Securities or the Securities Guarantee will be made without withholding or deduction for, for taxes unless required by law. In the event of (i) any change that becomes effective after the date hereof in the laws of the U.K. or on account of, any present Bermuda or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or thereintherein or any change in the interpretation or administration thereof or (ii) 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"), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through effect of which payments are made, unless such is to require the withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person Issuer or the applicable Subsidiary Guarantor pursuant to the Securities or JV Subsidiary Guarantorthe 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 pay, to the extent it may then lawfully do so, such additional amounts (“"Additional Amounts”") as will result may be necessary in receipt by order that every net payment of the Holder principal of each Note of such amounts as would have been received by such Holder had no such and interest on the Securities, after deduction for withholding or deduction been required, except that no Additional Amounts shall be payable:
(i) for or on account of:
(A) of any future tax, duty, assessment or other governmental charge will not be less than the amount provided for in the Securities to be then due and payable; provided, however, that the foregoing obligation to pay Additional Amounts shall not apply in respect of:
(a) any tax, withholding, assessment or other governmental charge which would not have been imposed but for:
for (1i) the existence of any present or former connection between the Holder such holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note holder, if such holder is an estate, trust, partnership or corporation) and the Relevant Jurisdiction U.K. or the jurisdiction through which payments are made, other than merely holding such Note Bermuda or the receipt of payments thereunder any political subdivision or under a Subsidiary Guarantee or JV Subsidiary Guarantee, taxing authority thereof including, without limitation, such Holder holder (or beneficial owner such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary 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;
therein or (2ii) the presentation of such Note a Security or a Securities Guarantee (in cases in which where presentation is required) for payment on a date more than 30 days after the later of date on which such payment became due and payable or the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or is duly provided for, whichever occurs later, except for Additional Amounts with respect to the extent Taxes that the Holder thereof would have been entitled to such Additional Amounts if it imposed had the holder presented such Note the Security for payment on any date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(Bb) any estate, inheritance, gift, sale, transfer, transfer or personal property or similar tax, assessment or other governmental charge;
(Cc) any tax, assessment or other governmental charge that is payable otherwise than withheld by withholding reason of the failure to timely comply by the holder or deduction from payments the beneficial owner of principal, premium the Security with a request in writing of the Issuer or the Guarantor (if any) and interest on which request shall be furnished to the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if anyTrustee);
(Di) 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 requirement, which, in the case of (i) or (ii), 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 (c) 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 (i) or the declaration or other claim described in subclause (ii) 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
(d) any tax, assessmentwithholding, withholding assessment or deduction required by sections 1471 through 1474 other governmental charge resulting from a Listing Failure with respect to any Security issued in the form of a Definitive Security pursuant to the terms of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States Deposit Agreement and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCAthis Indenture; or
(Ee) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses items (Aa), (Bb), (Cc) and (D)d) above; or
(ii) nor shall Additional Amounts be paid with respect to a Holder that any payment of the principal of, or any interest on, any Security or Securities Guarantee to any holder who is a fiduciary, partnership or person other than not the sole beneficial owner of any payment such Security or Securities Guarantee or is a fiduciary or partnership, but only to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are madebeneficial owner, for tax purposes, of a beneficiary or a settlor with respect to the fiduciary, a fiduciary or a member of that the partnership or a beneficial owner who would not have been entitled to the payment of the Additional Amount had the beneficial owner, beneficiary, settlor or member of such partnership received directly its beneficial or distributive share of the payment. At least 30 days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Issuer or the Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer or the Guarantor will deliver to the Trustee an Officer's Certificate stating the fact that such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been will be payable and the Holder thereof.
(b) amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date. Whenever in this Indenture there is mentioned mentioned, in any context context, the payment of principal of(and premium, and if any), Redemption Price, interest or any premium other amount payable under or interest on, with respect to any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeSecurity, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 3 contracts
Sources: Indenture (RSL Communications LTD), Indenture (RSL Communications LTD), Indenture (RSL Communications LTD)
Additional Amounts. (a) All payments made by or on behalf of principal the Company or any Guarantor (each such person who pays or credits such amounts, a “Payor”) under or with respect to the Notes or any Note Guarantee will be made free and clear of, and premium (if any) and interest on the Notes without deduction or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, any and all present or future income, stamp and other taxes, levies, imposts, duties, assessments charges, fees, deductions or governmental charges of whatever nature imposed withholdings (hereinafter referred to as “taxes”) now or levied hereafter imposed, levied, collected, withheld or assessed by or within on behalf of any jurisdiction in which the Companysuch Payor is organized, a Surviving Person resident or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident carrying on business for tax purposes (or from or through which payments are made by or on behalf of such Payor or any political subdivision or taxing authority thereof or therein), including, without limitation, of the PRC foregoing that has the power to tax (each, as applicable, a “Relevant Taxing Jurisdiction”), unless the deduction or any jurisdiction through which payments are made, unless such withholding or deduction is required by applicable law or by regulation the interpretation or administration thereof by the relevant governmental policy having authority.
(b) At any time a relevant Taxing Jurisdiction requires deductions or withholdings of taxes from any payment made under or in respect of the force of law. In the event that any such withholding or deduction is so requiredNotes, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Payor will pay such additional amounts (“Additional Amounts”) as will result in receipt may be necessary so that the net amounts received by each Holder (including Additional Amounts), after such deduction or withholding (including withholding or deduction attributable to Additional Amounts payable hereunder), shall not be less than the amount the Holder of each Note of such amounts as would have been received by such Holder had no such deduction or withholding or deduction been required.
(c) However, except that notwithstanding the foregoing, no Additional Amounts shall will be payable:
payable to a Holder of a Note by any Payor with respect to: (i) for or on account of:
(A) any tax, duty, assessment or other governmental charge taxes that would not have been imposed but for:
(1) for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of such Note the relevant Holder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust, partnership or corporation) and the Relevant any Taxing Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, (including, without limitation, such by virtue of the Holder or beneficial owner being or having been a national, domiciliary citizen or resident of such Relevant Jurisdiction of, formed pursuant to the laws of, incorporated in or treated as carrying on a resident thereof or being or business, having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
or having a place of business in such jurisdiction), other than solely by reason of the Holder or beneficial owner purchasing, holding or disposing of the Notes; (2ii) taxes imposed on, or deducted or withheld from, payments in respect of the presentation Notes if such payments could have been made without such imposition, deduction or withholding of such Note taxes had such Notes been presented for payment (in cases in which where presentation is required) more than within 30 days after the later of the relevant date on which the payment of the principal of, premium, if any, and interest on, such 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 on presenting a Note for payment on any date within the last day of such 30-day period;
); for this purpose, the “relevant date” in relation to any payments on any Note means (3a) the due date for payment thereof, or (b) if the full amount of the monies payable on such date have not been received by the Trustee on or prior to such due date, the date on which the full amount of such monies having been so received, provided that notice to that effect is duly given to Holders of the Notes in accordance with this Indenture; (iii) taxes imposed or withheld by reason of the failure by the Holder or beneficial owner of such Note to provide certification, information, documents or other evidence concerning the nationality, residence or identity of the Holder or beneficial owner or to comply make any declaration or similar claim or satisfy any other reporting requirement relating to such matters, within 30 days after a specific written request therefor from a Payor, which is required by law, regulation or administrative practice or applicable treaty as a precondition to exemption from or reduction in the rate of deduction or withholding of all or part of such taxes; (iv) withholding tax under Part XIII of the Income Tax Act (Canada) (the “Tax Act”) that is imposed as a consequence of a Holder or beneficial owner of a Note not dealing at arm’s length (within the meaning of the Tax Act) with a timely request Payor at the time of such payment; (v) any withholding tax under Part XIII of the Tax Act that is imposed as a consequence of a Holder or beneficial owner of a Note being, at any time, a “specified non-resident shareholder” (within the meaning of subsection 18(5) of the Tax Act) of the Company or, at any time, not dealing at arm’s length (within the meaning of the Tax Act) with a “specified shareholder” (within the meaning of subsection 18(5) of the Tax Act) of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(Bvi) any estate, inheritance, gift, salesales, transferexcise, use, personal property property, transfer or similar tax, assessment or other governmental charge;
; (Cvii) any tax, assessment tax or penalty arising from the Holder’s failure to properly comply with the Holder’s obligations imposed under Part XVIII of the Tax Act or the similar provisions of legislation of any other governmental charge jurisdiction that is payable otherwise than by withholding or deduction from payments has entered into an agreement with the United States of principal, premium (if any) and interest on America to provide for the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections implementation of reporting in that jurisdiction in compliance with Sections 1471 through 1474 of the Internal Revenue Code Code; or (viii) taxes arising from any combination of 1986the foregoing clauses (i) through (vii).
(d) The Payors will (1) make such withholding or deduction and (2) remit the full amount deducted or withheld to the relevant government authority in accordance with applicable law. The Payors will furnish to the Trustee, within 30 days after the date the payment of any taxes is due pursuant to applicable law, certified copies of tax receipts evidencing that such payment has been made or other evidence of such payment satisfactory to the Trustee.
(e) The Payors, jointly and severally, will indemnify and hold harmless each Holder and beneficial owner of Notes and upon written request reimburse each such Holder and beneficial owner for the amount of (x) any taxes so levied or imposed and paid by such Holder or beneficial owner (including, for greater certainty, taxes imposed and paid pursuant to subsection 215(4) of the Tax Act and section 803 of the Income Tax Regulations (Canada) or any successor provision) as amended a result of payments made under or with respect to the Notes, (“FATCA”)y) any liability (including penalties, interest, additions to tax and reasonable expenses) arising therefrom or with respect thereto, excluding any such liability which arises as a result of the Holder’s or beneficial owner’s failure to pay amounts on a timely basis, and (z) any taxes levied or imposed and paid by such Holder or beneficial owner with respect to any reimbursement under clause (x) or (y) above; provided, however, that the indemnification or reimbursement obligations provided for in this Section 2.13(e) shall not extend to taxes for which the applicable Holder would not have been eligible to receive payment of Additional Amounts hereunder by virtue of clauses (i) through (viii) of Section 2.13(c) if the Payor had been required to withhold from such payments or to the extent such Holder received Additional Amounts with respect to such payments.
(f) In addition, any amounts to be paid by a Payor on the Notes will be paid net of any deduction or withholding imposed or required pursuant to Sections 1471 through 1474 of the Code, any current or future Treasury Regulations regulations or rulings promulgated thereunderofficial interpretations thereof, any lawagreement entered into pursuant to Section 1471(b) of the Code, regulation or other official guidance enacted in any jurisdiction implementing FATCAfiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement entered into in connection with the U.S. Internal Revenue Service under FATCA; orimplementation of such Sections of the Code (“FATCA Withholding”). Neither any Guarantor nor the Company will be required to pay Additional Amounts on account of any FATCA Withholding.
(Eg) Each Holder entitled to any combination of taxesAdditional Amounts shall cooperate, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent described in clause (iii) of Section 2.13(c) above, with the Company and the Trustee in providing any information or documentation that such payment would be is required to be included by applicable law or by the taxing authority of the relevant Taxing Jurisdiction and that is reasonably requested in writing by the income under the laws of a Relevant Jurisdiction Company or the jurisdiction through Trustee to confirm the identity and/or tax status of such Holder and any affected beneficial owner and to assist the Company or Trustee in determining the applicable withholding tax rate and the amount of Additional Amounts payable in respect thereof.
(h) At least 30 calendar days prior to each date on which payments are made, for tax purposes, of a beneficiary any payment under or settlor with respect to the fiduciaryNotes or any Note Guarantee is due and payable, or if a member of Payor will be obligated to pay Additional Amounts with respect to such payment, the Company will deliver to the Trustee an Officer’s Certificate stating that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiarywill be payable and the amounts so payable, settlor, partner and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date net of any taxes required to be withheld or beneficial owner been the Holder thereofdeducted.
(bi) In addition, the Payor will pay any stamp, issue, registration, court, documentation, excise or other similar taxes, charges and duties, including any interest, penalties and any similar liabilities with respect thereto, imposed by any Taxing Jurisdiction at any time in respect of the execution, issuance, registration or delivery of the Notes, any Note Guarantee, this Indenture or any other document or instrument referred to hereunder or thereunder and any such taxes, charges or duties imposed by a Taxing Jurisdiction on any payments made pursuant to the Notes or as a result of, or in connection with, the enforcement of the Notes, any Note Guarantee and/or any other such document or instrument.
(j) The obligations under this Section 2.13 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Payor and to any jurisdiction in which such successor is organized or is otherwise resident or carrying on business for tax purposes or any jurisdiction from or through which payment is made by such successor or its respective agents.
(k) Whenever there is mentioned this Indenture refers to, in any context context, the payment of principal ofprincipal, and premium, if any, interest or any premium other amount payable under or interest on, with respect to any Note or under any Subsidiary Guarantee or JV Subsidiary Note Guarantee, such mention reference shall be deemed to include the payment of Additional Amounts provided for or indemnification payments as described in this Indenture Section 2.13, to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 3 contracts
Sources: Indenture (Concordia International Corp.), Indenture (Concordia Investment Holdings (Jersey) LTD), Indenture (Concordia International Corp.)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on made by the Notes Entities to the Noteholders or under Securities Holders pursuant to the Subsidiary Guarantees and JV Subsidiary Guarantees Transaction Documents will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments or governmental charges of whatever nature Taxes imposed or levied by or within any jurisdiction in which on behalf of the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (United States or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC therein (each, as applicable, a “Relevant JurisdictionUS Taxes”), or any jurisdiction through which payments are made, unless such withholding or deduction the Entity is required to withhold or deduct any amount for or on account of US Taxes by law or by regulation the interpretation or governmental policy having the force administration thereof. If any Entity is required to withhold or deduct any amount for or on account of law. In the event that US Taxes from any payment made hereunder, such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Entity will pay such additional amounts (“Additional Amounts”) as will result in receipt may be necessary so that the net amount received by the Securities Holder of each Note of such amounts as would have been received by such Holder had no (including Additional Amounts) after such withholding or deduction will not be less than the amount the Securities Holder would have received if such US Taxes had not been requiredwithheld or deducted; provided, except however, that no such Additional Amounts shall will be payablepayable with respect to a payment made hereunder with respect to any US Taxes which would not have been imposed, payable or due:
(i) but for the fact that the Securities Holder is or on account was a domiciliary, national or resident of:
(A) any tax, dutyor engages or engaged in business, assessment maintains or other governmental charge that would not have been imposed but for:
(1) maintained a permanent establishment or is or was physically present in the existence of any United States, or otherwise has some present or former connection between with the Holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, United States other than merely the mere holding such Note or enforcement of the Transaction Documents or the receipt of payments thereunder principal or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Jurisdiction or treated as a resident thereof or being or having been physically present or engaged interest in a trade or business therein or having or having had a permanent establishment thereinrespect thereof;
(2ii) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 but for payment on any date within such 30-day period;
(3) the failure of the Securities Holder or beneficial owner to comply with a timely request of by the CompanyEntity to satisfy any certification, a Surviving Personidentification or other reporting requirements which the Securities Holder is legally entitled to satisfy, any Subsidiary Guarantor whether imposed by statute, treaty, regulation, administrative practice or any JV Subsidiary Guarantor addressed to otherwise, concerning the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity residence or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and United States of the Securities Holder.
(b) The obligation of the Entities to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which pay Additional Amounts would have otherwise been payable in respect of US Taxes shall not apply with respect to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(Bi) any estate, inheritance, gift, salesales, transfer, personal property or any similar tax, assessment Tax or other governmental charge;
(Cii) any tax, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Transaction Documents.
(c) The Entities, as applicable, will:
(i) make any required withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any)deduction;
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership remit the full amount deducted or person other than the sole beneficial owner of any payment withheld to the extent that such payment would be required to be included relevant authority (the “Taxing Authority”) in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor accordance with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.applicable law;
(biii) Whenever there is mentioned in any context obtain certified copies of tax receipts evidencing the payment of principal of, and any premium Taxes so deducted or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, withheld from each Taxing Authority imposing such mention shall be deemed to include payment taxes; and
(iv) promptly send such certified copies of Additional Amounts provided for in this Indenture tax receipts to the extent that, Securities Holder. The Entities will attach to each certified copy a certificate stating that the amount of withholding tax evidenced by the certified copy was paid in such context, Additional Amounts are, were or would be payable connection with payments in respect thereofof the Transaction Documents.
Appears in 3 contracts
Sources: Securities Amendment and Purchase Agreement (HC Innovations, Inc.), Securities Amendment and Purchase Agreement (HC Innovations, Inc.), Securities Amendment and Purchase Agreement (HC Innovations, Inc.)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on The amounts to be paid by the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will Bank hereunder shall be made paid in United States dollars without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments duties or governmental charges imposed under the laws of whatever nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (Canada or any political subdivision thereof unless the Bank is compelled by law or taxing authority the administration thereof to deduct or therein)withhold such taxes, including, without limitationduties or charges. In such an event, the PRC (each, Bank shall pay such additional amounts as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless may be necessary in order that the net amounts received after such withholding or deduction is required by law or by regulation or governmental policy having shall equal the force of law. In the event amount that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder had if no such withholding or deduction had been requiredmade; provided, except however, that no Additional Amounts such additional amounts shall be payable:
paid on account of any taxes, duties or charges (i) for that are imposed due to a present or on account of:
former connection of an Underwriter with Canada or any political subdivision thereof other than the mere entering into of this Agreement or receipt of payments hereunder or (Aii) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of an Underwriter to provide any form, certificate, document, or other information that would have reduced or eliminated such taxes, duties or other charges except where providing such form, certificate, document, or other information would subject such Underwriter to any material unreimbursed cost or expense or would materially prejudice the Holder legal or beneficial owner to comply with a timely request commercial position of such Underwriter. In addition, if any such taxes, duties or governmental charges (other than any such taxes, duties or governmental charges excluded from indemnification by reason of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to proviso in the preceding clauses (A), (B), (Csentence) and (D); or
(ii) ought to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to withheld by the Bank and were not withheld, then the Bank will indemnify the Underwriters against liability for such Additional Amounts had that beneficiarytaxes, settlorduties or governmental charges, partner together with any interest or beneficial owner been the Holder thereofpenalties thereon.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 3 contracts
Sources: Underwriting Agreement (Toronto Dominion Bank), Underwriting Agreement (Toronto Dominion Bank), Underwriting Agreement (Toronto Dominion Bank)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, If any present or future taxes, duties, assessments or other governmental charges of whatever nature are imposed or levied by or within any jurisdiction in which the Companyjurisdiction, a Surviving Person or an applicable Subsidiary other than the United States, where the Guarantor or JV Subsidiary Guarantor a successor (a “Payor”) is organized or otherwise considered to be a resident for tax purposes (purposes, any jurisdiction, other than the United States, from or through which the Payor makes a payment on the Securities of any Series, or, in each case, any political subdivision organization or taxing governmental authority thereof or therein), including, without limitationtherein having the power to tax (the “Relevant Tax Jurisdiction”) in respect of any payments under the Securities of such Series, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force Payor shall pay to each Holder of law. In the event that any such withholding or deduction is so requiredSecurity, to the Companyextent it may lawfully do so, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result may be necessary in receipt by order that the Holder of each Note of such net amounts as would have been received by paid to such Holder had no will be not less than the amount specified in such withholding or deduction been requiredSecurity to which such holder is entitled; provided, except that no however, the Payor shall not be required to make any payment of Additional Amounts shall be payable:
(i) for or on account of:
(Aa) any tax, duty, assessment or other governmental charge that which would not have been imposed but for:
for (1i) the existence of any present or former connection between the such Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note Holder, if such Holder is an estate, trust, partnership, limited liability company or corporation) and the Relevant Tax Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder (or beneficial owner such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary 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;
therein or (2ii) the presentation of such Note a Security (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which where presentation is required) for payment in on a date more than 30 days after (x) the Relevant Jurisdiction date on which such payment became due and payable or (y) the jurisdiction through date on which payments are madepayment thereof is duly provided for, unless such Note could not have been presented for payment elsewherewhichever occurs later;
(Bb) any estate, inheritance, gift, salesales, transfer, personal property or similar tax, assessment or other governmental charge;
(Cc) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of (or in respect of) principal of, premium, if any, or any interest on, the Securities of such Series;
(d) any tax, assessment or other governmental charge that is payable otherwise than imposed or withheld by withholding reason of the failure by the Holder or deduction from payments the beneficial owner of principalthe Securities of such Series to comply with a request of the Payor addressed to the Holder to provide information, premium (if any) and interest on documents or other evidence concerning the Notes nationality, residence or from payments under identity of the Subsidiary Guarantees Holder or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction such beneficial owner which is required by sections 1471 through 1474 of the Internal Revenue Code of 1986a statute, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any lawtreaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCAgovernmental charge; or
(Ee) any combination of taxesthe above; nor will Additional Amounts be paid with respect to any payment of the principal of, dutiesor any premium or interest on, assessments or other governmental charges referred any Securities of such Series to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a any Holder that who is a fiduciary, fiduciary or partnership or person limited liability company or other than the sole beneficial owner of any such payment to the extent that such payment would be required by the laws of the Relevant Tax Jurisdiction to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, purposes of a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of that partnership such partnership, limited liability company or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Holder of such Securities. The Payor shall provide the Trustee with the official acknowledgment of the relevant tax authority (or, if such acknowledgment is not available, a certified copy thereof.
(b) Whenever there is mentioned in any context evidencing the payment of the withholding taxes by the Payor. Copies of such documentation shall be made available to the holders of the Securities of such Series or the paying agent, as applicable, upon request therefor. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of, and of or any premium or interest on, or in respect of, any Note Security of any Series or under the net proceeds received on the sale or exchange of any Subsidiary Guarantee or JV Subsidiary GuaranteeSecurity of any Series, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture by the terms of such Series established hereby or pursuant hereto to the 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 Additional Amounts in those provisions hereof where such express mention is not made. Except as otherwise provided in or pursuant to this Indenture or the Securities of the applicable Series, at least 10 days prior to the first Interest Payment Date with respect to such Series of Securities (or if the Securities of such Series shall not bear interest prior to Maturity, the first day on which a payment of principal is made), and at least 10 days prior to each date of payment of principal or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the 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, or interest on, if any, and Additional Amounts, if any, with respect to the Securities of such Series shall be made to Holders of Securities of such Series who are United States Aliens without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of such Series. 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 Company agrees to pay to the Trustee or such Paying Agent the Additional Amounts required by the terms of such Securities. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith 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 pursuant to this Section 3.4.
Appears in 3 contracts
Sources: Senior Indenture (Max USA Holdings Ltd.), Subordinated Indenture (Max USA Holdings Ltd.), Indenture (Max Re Capital LTD)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on that the Notes Issuer makes under or with respect to this Note or that the Guarantors make under or with respect to the Subsidiary Guarantees and JV Subsidiary Guarantees will shall be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or within on behalf of any jurisdiction in which the Company, a Surviving Person Issuer or an applicable Subsidiary Guarantor or JV Subsidiary any Guarantor is organized incorporated or otherwise resident for tax purposes (or from or through which any of the foregoing makes any payment on this Note or by or within any political subdivision or taxing governmental authority thereof of or therein), including, without limitation, in any of the PRC foregoing having power to tax (each, as applicable, a “Relevant Taxing Jurisdiction”), unless the Issuer or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If the Issuer or a Guarantor (or any Agent on its behalf) is required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to this Note or any Guarantee, the Issuer or the Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as will result in receipt by may be necessary to ensure that the Holder of each Note of such amounts as would have been net amount received by such each Holder had no after such withholding or deduction (including any withholding or deduction in respect of any Additional Amounts) will not be less than the amount the Holder would have received if such Taxes had not been requiredwithheld or deducted.
(b) Neither the Issuer nor any Guarantor shall, except that no however, pay Additional Amounts shall be payable:
(i) for in respect or on account of:
(Ai) any taxTaxes, duty, assessment or other governmental charge that which would not have been imposed by the Relevant Taxing Jurisdiction in which such Taxes are imposed but for:
(1) the existence of any present or former connection between for the Holder or beneficial owner of such this Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a nationalcitizen, domiciliary resident or resident of such Relevant Jurisdiction or treated as a resident national thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereintherein or having any other present or former connection with such Relevant Taxing Jurisdiction (other than the mere receipt, ownership, holding or disposition of this Note, or by reason of the receipt of any payments in respect of any Note or any Guarantee, or the exercise or enforcement of rights under any Notes or any Guarantee);
(2ii) any Taxes that are imposed or withheld by reason of the failure of the Holder or beneficial owner of this Note, following the Issuer’s written request, to comply with any certification, identification, information or other reporting requirements (to the extent such Holder or beneficial owner is legally eligible to do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner, as appropriate, is not resident in the Relevant Taxing Jurisdiction);
(iii) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to this Note or any Guarantee;
(v) any Tax imposed on or with respect to any payment by the Issuer or the Guarantor to the Holder if such Holder is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment to the extent that Taxes would not have been imposed on such payment had such Holder been the sole beneficial owner of such Note;
(vi) any Tax that is imposed on or with respect to a Note 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 Notes to another paying agent in a member state of the European Union;
(vii) any Taxes that were imposed as a result of the presentation of such a Note for payment (in cases in which where presentation is required) more than 30 days after the later of the date on which the relevant payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant is first made available to the terms thereof or was made or duly provided for, Holder (except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had the Note been presented such Note for payment on any date within the last day of such 30-day period);
(3viii) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as in respect of any Taxes where such withholding or deduction is imposed on a payment to which Additional Amounts would have otherwise been payable an individual and is required to be made pursuant to the European Council Directive 2003/48/EC, European Council Directive 2014/14/EU or any other Directive implementing the conclusions of the ECOFIN Council meetings of November 26 and 27, 2000 on the taxation of savings income or any subsequent Council meeting amending or supplementing those conclusions or any law implementing or complying with, or introduced in order to conform to, any such HolderDirective; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(Bix) any estatecombination of any of the above. In addition, inheritance, gift, sale, transfer, personal property any amounts to be paid on this Note will be paid net of any deduction or similar tax, assessment withholding imposed or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “FATCACode”), any current or future Treasury Regulations regulations or rulings promulgated thereunderofficial interpretations thereof, any lawagreement entered into pursuant to Section 1471(b) of the Code, regulation or other official guidance enacted in any jurisdiction implementing FATCAfiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement entered into in connection with the U.S. Internal Revenue Service under FATCA; or
(E) any combination implementation of taxessuch Sections of the Code, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would no Additional Amounts will be required to be included in paid on account of any such deduction or withholding. Such Additional Amounts also will not be payable where, had the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who of the Note been the Holder, it would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts by reason of clauses (i) to (ix) inclusive above.
(c) The Issuer and the Guarantors shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to this Note or any Guarantee is due and payable, if the Issuer or a Guarantor 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 this Note or any Guarantee is due and payable, in which case it will be promptly thereafter), the Issuer shall deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Trustee and the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuer shall promptly publish a notice in accordance with Section 12.01 of the Indenture stating that such Additional Amounts will be payable and describing its obligations to pay such amounts. In addition, the Issuer and the Guarantors, shall pay any present or future stamp, issue, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including, without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of this Note or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments with respect to, or enforcement of, this Note or any Guarantee. Upon written request, the Issuer or a Guarantor will furnish to the Trustee and the Paying Agent or a Holder as soon as possible following such request copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.01 of the Indenture, in such form as provided for in this Indenture the normal course by the taxing authority imposing such Taxes and as may be reasonably available to the Issuer or the Guarantors. If, notwithstanding the efforts of the Issuer or Guarantor to obtain such receipts, the same are not obtainable, the Issuer or such Guarantor will provide the Trustee, the Paying Agent or such Holder with other evidence reasonably satisfactory to the Trustee, the Paying Agent or holder of such payments by the Issuer or Guarantor. If reasonably requested by the Trustee, the Issuer and (to the extent thatnecessary) any Guarantors provide to the Trustee such information as may be in the possession of the Issuer and the Guarantors (and not otherwise in the possession of the Trustee) to enable the Trustee to determine the amount of any withholding Taxes attributable to any particular Holder(s); provided, however, that in no event shall the Issuer or any Guarantor be required to disclose any information that it reasonably deems to be confidential.
(e) Whenever the Indenture or this Notes refers to, in such any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to this or any other Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts areAmounts, were if applicable.
(f) The preceding provisions will survive any termination, defeasance or would be payable discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction in respect thereofwhich any successor Person to the Issuer or any Guarantor is incorporated or otherwise resident for tax purposes or any jurisdiction from or through which such person makes any payment on this or any other Note (or any Guarantee) and any political subdivision or taxing authority or agency thereof or therein.
Appears in 3 contracts
Sources: Indenture (T F Bell Holdings LTD), Indenture (Portishead Insurance Management LTD), Indenture (Townfrost LTD)
Additional Amounts. (a) All payments of principal dividends, the Mandatory Redemption Price, the Optional Redemption Price, the Fundamental Change Repurchase Price, the Preference Amount and other amounts on the Series A Convertible Preference Shares, including, but not limited to, cash in lieu of fractional Ordinary Shares, and all deliveries of Ordinary Shares made on conversion of the Series A Convertible Preference Shares shall be made free and clear of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or other governmental charges of whatever nature imposed (“Taxes”) imposed, levied, collected, withheld or levied assessed by or within the Cayman Islands, People’s Republic of China or any other jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor Company is organized or resident for tax purposes or from which any payment on the Series A Convertible Preference Shares is made (or any political subdivision or taxing authority Taxing Authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will Company shall pay such additional amounts on the Series A Convertible Preference Shares (all such additional amounts being referred to herein as “Additional Amounts”) as will result in receipt by the Holder of each Note Series A Convertible Preference Share of such amounts as would have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(i) payable for or on account of:
(Ai) any tax, duty, assessment or other governmental charge Taxes that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or beneficial owner of such Note Series A Convertible Preference Share and the Relevant Jurisdiction Cayman Islands, People’s Republic of China or any other jurisdiction in which the jurisdiction through which payments are madeCompany is organized or resident for tax purposes, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary GuaranteeSeries A Convertible Preference Share, including, without limitation, including such Holder or beneficial owner being or having been a national, domiciliary 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;; or
(2) the presentation of such Note Series A Convertible Preference Share (in cases in which if presentation is required) more than 30 calendar days after the later of the date on which the payment of dividends, the principal ofOptional Redemption Price, premiumthe Mandatory Redemption Price, if anythe Fundamental Change Repurchase Price, the Preference Amount and interest on, other amounts on such Note Series A Convertible Preference Share became due and payable pursuant to the terms thereof or the date that such payment 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 Series A Convertible Preference Share for payment on any date within such 30-30 calendar day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(Bii) any estate, inheritance, gift, sale, transfer, stamp, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(Eiii) any combination of taxes, duties, assessments or other governmental charges Taxes referred to in the preceding clauses subsections (A), ) and (B), (C) and (D); or.
(iib) to a The Company shall not pay Additional Amounts if the registered Holder that is a fiduciary, partnership or person Person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction beneficiary, partner or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor settler with respect to the such fiduciary, partnership or a member Person, or the beneficial owner of that partnership or a beneficial owner who payment, would not have been entitled to such the Additional Amounts if it had that beneficiary, settlor, partner or beneficial owner been the Holder thereofregistered Holder.
(bc) Whenever there is mentioned in any context context, (i) the payment of principal ofdividends, the Optional Redemption Price, the Mandatory Redemption Price, the Fundamental Change Repurchase Price, the Preference Amount and other amounts on any premium Series A Convertible Preference Share, or interest on, (ii) the delivery of Ordinary Shares or cash payments (if any) on conversion of any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeSeries A Convertible Preference Share, such mention shall be deemed to include the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in with respect thereofthereto.
(d) The Company’s ability to pay Additional Amounts is subject to the terms of the Senior Facilities.
Appears in 3 contracts
Sources: Convertible Preference Share Purchase Agreement, Convertible Preference Share Purchase Agreement (Alibaba Group Holding LTD), Convertible Preference Share Purchase Agreement (Alibaba Group Holding LTD)
Additional Amounts. (a) All payments of principal ofThe Company hereby further agrees, subject to the limitations and premium (exceptions set forth below, that if any) and interest on the Notes any deduction or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, for any present or future taxes, duties, assessments or other governmental charges of whatever nature the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Company is incorporated or resident for tax purposes 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 Company under any series of Securities, then the Company will pay to the Holder of a Security of such series as supplemental interest such additional amounts (“Additional Amounts”) as may be necessary in order that the net amounts paid to such Holder 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 amounts specified in such Security to which such Holder is entitled; provided, however, that the Company shall not be required to make any payment of Additional Amounts (i) for or on account of any such tax, assessment or governmental charge imposed or levied by or within any the jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor Company is organized incorporated or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC ) or (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(iii) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
for (1x) the existence of any present or former connection between the such Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note Holder, if such Holder is an estate, trust, partnership or corporation) and the Relevant Jurisdiction taxing jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note any political subdivision or the receipt of payments thereunder territory or under a Subsidiary Guarantee possession thereof or JV 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 national, domiciliary 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;
therein or (2y) the presentation of such Note a Security (in cases in which where presentation is required) for payment on a date more than 30 days after the later of date on which such payment became due and payable or the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or is 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewherewhichever occurs later;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal(or in respect of) principal of, or any premium (if any) and or interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any)on, a Security;
(D) any tax, assessment, withholding assessment or deduction required other governmental charge that is imposed or withheld by sections 1471 through 1474 reason of the Internal Revenue Code failure to comply by the Holder or the beneficial owner of 1986a Security with a request of the Company addressed to the Holder (x) to provide information, as amended documents and other evidence concerning the nationality, residence or identity of the Holder or such beneficial owner or (“FATCA”y) to make and deliver any declaration or other similar claim (other than a claim for refund of a tax, assessment or other governmental charge withheld by the Company) or satisfy any information or reporting requirement, which, in the case of (x) or (y), any current is required or future Treasury Regulations or rulings promulgated thereunderimposed by a statute, any lawtreaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCAgovernmental charge; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses items (A), (B), (C) and (D); or
(ii) nor shall Additional Amounts be paid with respect to a any payment of the principal of, or any premium or interest on, any series of Security to any Holder that who is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of any such payment to the extent that such payment would be required by the laws of the jurisdictions in which the Company is incorporated or resident for tax purposes (or any political subdivision or taxing authority thereof or therein) to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, purposes of a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
(b) of such series. Whenever in this Indenture there is mentioned mentioned, in any context context, the payment of the principal of, and any premium or interest premium, if any, or interest, if any, on, any Note Security of any series or under payment of any Subsidiary Guarantee related coupon or JV Subsidiary Guaranteethe net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture Section to the extent that, in such context, 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. At least ten days prior to the first Interest Payment Date for any series of Securities, and at least ten days prior to each date of payment of principal and any premium or interest, if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company 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 series of Securities shall be made to Holders of such series without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of that series. 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 the Securities of that series and the Company will pay to the Trustee or such Paying Agent or Paying Agents the Additional Amounts required by this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith 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 pursuant to this Section.
Appears in 3 contracts
Sources: Indenture (Sea Containers LTD /Ny/), Indenture (Sea Containers LTD /Ny/), Indenture (Sea Containers LTD /Ny/)
Additional Amounts. (a) All payments of principal interest by the Corporation in respect of the Initial Debentures will be made free and clear of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, for or on account ofof any taxes or similar imposts ("Taxes") imposed, any present levied, collected, withheld or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied assessed by or within on behalf of the Government of Canada or of any jurisdiction in which the Company, a Surviving Person province or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority territory thereof or thereinby any authority or agency therein having power to tax ("Taxing Jurisdiction"), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is so required by law or by regulation the interpretation or administration thereof by the relevant governmental policy having the force of lawauthority or agency. In the event that If any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Corporation will pay as additional interest such additional amounts (“"Additional Amounts”") as will result in receipt by the Holder holders of each Note Initial Debentures of such amounts as would have been received by such Holder them had no such withholding or deduction been required, except that no Additional Amounts shall will be payablepayable with respect to a payment made to a holder of Initial Debentures for or in respect of:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge Taxes that would not have been imposed but for:
(1A) the existence holder or Beneficial Holder of any Initial Debentures being a resident, domicile or national of, or engaged in business or maintaining an establishment or other presence in, or otherwise having some present or former connection between with, the Taxing Jurisdiction (including, without limitation, by virtue of the holder or Beneficial Holder carrying on a business or beneficial owner having a place of business in such Note and the Relevant Jurisdiction or the jurisdiction through which payments are madejurisdiction), other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident ownership 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such HolderInitial Debenture; or
(4B) the presentation holder or Beneficial Holder not dealing at arm's length, within the meaning of such Note the Tax Act, with the Corporation at the relevant time; or
(in cases in which presentation is requiredC) for all or any portion of the payment in being deemed to be a dividend paid to the Relevant Jurisdiction holder or Beneficial Holder pursuant to proposed subsection 214(16) of the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhereTax Act or any amended or successor provision substantially similar thereto;
(Bii) any estate, inheritance, gift, salesales, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCATaxes; or
(Eiii) any combination Taxes, deduction or withholding imposed by reason of taxesthe failure of the holder or Beneficial Holder of a Initial Debenture to comply with certification, duties, assessments information or other governmental charges referred reporting requirements if such compliance is required or imposed by a statute, treaty or regulation or is in accordance with administrative practice of the relevant Taxing Jurisdiction as a precondition to exemption from or reduction in the preceding clauses (A)all or part of such Taxes, (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership deduction or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereofwithholding.
(b) If any such withholding or deduction is so required, the Corporation will (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(c) Whenever in this Indenture there is mentioned mentioned, in any context context, the payment of principal of, and amounts based upon interest payable under or with respect to any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeInitial Debenture, such mention shall will be deemed to include mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(d) If the Corporation fails to make any payment required by this Section 2.15, the Trustee shall in no circumstances be required to make any such payment.
Appears in 3 contracts
Sources: Convertible Debenture Indenture (Crailar Technologies Inc), Convertible Debenture Indenture (Crailar Technologies Inc), Convertible Debenture Indenture (Crailar Technologies Inc)
Additional Amounts. (a) All payments of principal of, and premium (if any) (including, for the avoidance of doubt, any Cash Sweep Premium) and interest on on, the Notes or under the Subsidiary Guarantees and JV Parent Guarantee or the Subsidiary Guarantees will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person (as defined under Section 5.01), the Parent Guarantor or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes or any jurisdiction from or through which payment is made (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC ) (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person Person, the Parent Guarantor or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts payable under the Notes, the Parent Guarantee or the Subsidiary Guarantees as would have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under the Parent Guarantee or a Subsidiary Guarantee or JV Subsidiary Guaranteethe enforcement of rights thereunder, as the case may be, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premiumpremium (including, for the avoidance of doubt, any Cash Sweep Premium), if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, except (i) 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 date within such 30-day periodperiod or (ii) if the Note had to be presented for payment in Mongolia during such 30-day period and could not have been presented for payment elsewhere;
(3) the failure of the Holder or beneficial owner to comply with a timely reasonable request of the Company, a Surviving Person, any Subsidiary the Parent Guarantor or any JV Subsidiary Guarantor addressed to the Holder at least 60 days prior to the first payment with respect to which it is applicable, to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, if and to the extent that due and timely compliance with such request is required under the tax laws of would have reduced (and in such jurisdiction in order case Additional Amounts will be payable only with respect to reduce such reduced amount) or eliminate eliminated any withholding or deduction as to which Additional Amounts would have otherwise been payable to the Holder, provided further that (i) while the Notes are held in global form, this clause (3) shall apply only if the clearing system has reasonable procedures in place to provide notices to, and collect information from, holders of interests in the global Notes and to allocate payments of additional amounts thereto and (ii) no holder of an interest in the Notes that is a pass-through entity, or a beneficial owner that holds an interest in the Notes through such Holderpass-through entity, shall have any obligation to establish eligibility for a reduced withholding tax rate under any income tax treaty to the extent it is not reasonably practicable for such holder or beneficial owner to do so; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, unless such Note (i) could not have been presented for payment elsewhere;, or (ii) could have been presented for payment only in Mongolia; or
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;; or
(C) any tax, duty, assessment or other governmental charge that which is payable otherwise other than by deduction or withholding or deduction from payments of principal, principal of or interest or any premium (if any) and interest on the Notes or from payments under the Parent Guarantee or the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);Guarantees; or
(D) any tax, assessment, withholding or deduction required by sections taxes imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986Code, as amended or current or future U.S. Treasury Regulations or rulings promulgated thereunder (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, any law, regulation or other official guidance enacted or published in any jurisdiction implementing FATCA or an intergovernmental agreement with respect thereto, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A(A), (B(B), (C) and (D(C); , or (D), or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment payment, to the extent that such payment would be required to be included for tax purposes in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner member or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal ofprincipal, and any premium or interest onin respect of any Note, any Note or under any Subsidiary the Parent Guarantee or JV any Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(c) If the Company, the Parent Guarantor or any Subsidiary Guarantor will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes, the Parent Guarantee or the relevant Subsidiary Guarantees, the Company, the Parent Guarantor or such Subsidiary Guarantor shall deliver to the Trustee, at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Company, the Parent Guarantor or such Subsidiary Guarantor, as applicable, shall notify the Trustee promptly thereafter), an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount so payable. The Officers’ Certificate must also set forth any other information necessary to enable the Trustee to pay Additional Amounts to the Holders on the relevant payment date.
Appears in 3 contracts
Sources: Indenture (Energy Resources Rail LLC), Indenture (Enrestechnology LLC), Indenture (Enrestechnology LLC)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on that the Issuer makes under or with respect to the Notes or that the Guarantors make under or with respect to the Subsidiary Guarantees and JV Subsidiary Guarantees will shall be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or within on behalf of any jurisdiction in which the Company, a Surviving Person Issuer or an applicable Subsidiary Guarantor or JV Subsidiary any Guarantor is organized incorporated or otherwise resident for tax purposes (or from or through which any of the foregoing makes any payment on the Notes or by or within any political subdivision or taxing governmental authority thereof of or therein), including, without limitation, in any of the PRC foregoing having power to tax (each, as applicable, a “Relevant Taxing Jurisdiction”), unless the Issuer or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If the Issuer or a Guarantor (or any Agent on its behalf) is required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Guarantee, the Issuer or the Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as will result in receipt by may be necessary to ensure that the Holder of each Note of such amounts as would have been net amount received by such each Holder had no after such withholding or deduction (including any withholding or deduction in respect of any Additional Amounts) will not be less than the amount the Holder would have received if such Taxes had not been requiredwithheld or deducted.
(b) Neither the Issuer nor any Guarantor shall, except that no however, pay Additional Amounts shall be payable:
(i) for in respect or on account of:
(Ai) any taxTaxes, duty, assessment or other governmental charge that which would not have been imposed by the Relevant Taxing Jurisdiction in which such Taxes are imposed but for:
(1) the existence of any present or former connection between for the Holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner Notes being or having been a nationalcitizen, domiciliary resident or resident of such Relevant Jurisdiction or treated as a resident national thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereintherein or having any other present or former connection with such Relevant Taxing Jurisdiction (other than the mere receipt, ownership, holding or disposition of the Notes, or by reason of the receipt of any payments in respect of any Note or any Guarantee, or the exercise or enforcement of rights under any Notes or any Guarantee);
(2ii) any Taxes that are imposed or withheld by reason of the failure of the Holder or beneficial owner of the Notes, following the Issuer’s written request, to comply with any certification, identification, information or other reporting requirements (to the extent such Holder or beneficial owner is legally eligible to do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner, as appropriate, is not resident in the Relevant Taxing Jurisdiction);
(iii) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes or any Guarantee;
(v) any Tax imposed on or with respect to any payment by the Issuer or a Guarantor to a Holder if such Holder is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment to the extent that Taxes would not have been imposed on such payment had such Holder been the sole beneficial owner of such Note;
(vi) any Tax that is imposed on or with respect to a Note 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 Notes to another Paying Agent in a member state of the European Union;
(vii) any Taxes that were imposed as a result of the presentation of such a Note for payment (in cases in which where presentation is required) more than 30 days after the later of the date on which the relevant payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant is first made available to the terms thereof or was made or duly provided for, Holder (except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had the Note been presented such Note for payment on any date within the last day of such 30-day period);
(3viii) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as in respect of any Taxes where such withholding or deduction is imposed on a payment to which Additional Amounts would have otherwise been payable an individual and is required to be made pursuant to the European Council Directive 2003/48/EC, European Council Directive 2014/14/EU or any other Directive implementing the conclusions of the ECOFIN Council meetings of November 26 and 27, 2000 on the taxation of savings income or any subsequent Council meeting amending or supplementing those conclusions or any law implementing or complying with, or introduced in order to conform to, any such HolderDirective; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(Bix) any estatecombination of any of the above. In addition, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest amounts to be paid on the Notes will be paid net of any deduction or from payments under the Subsidiary Guarantees withholding imposed or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “FATCACode”), any current or future Treasury Regulations regulations or rulings promulgated thereunderofficial interpretations thereof, any lawagreement entered into pursuant to Section 1471(b) of the Code, regulation or other official guidance enacted in any jurisdiction implementing FATCAfiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement entered into in connection with the U.S. Internal Revenue Service under FATCA; or
(E) any combination implementation of taxessuch Sections of the Code, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would no Additional Amounts will be required to be included in paid on account of any such deduction or withholding. Such Additional Amounts also will not be payable where, had the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who of the Note been the Holder, it would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts by reason of clauses (i) to (ix) inclusive above.
(c) The Issuer and the Guarantors shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or a Guarantee is due and payable, if the Issuer or any Guarantor 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 any Guarantee is due and payable, in which case it will be promptly thereafter), the Issuer shall deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Trustee and the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuer shall promptly publish a notice in accordance with Section 12.01 stating that such Additional Amounts will be payable and describing its obligations to pay such amounts. In addition, the Issuer and the Guarantors, shall pay any present or future stamp, issue, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including, without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of the Notes or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments with respect to, or enforcement of, the Notes or any Guarantee. Upon written request, the Issuer or a Guarantor will furnish to the Trustee and the Paying Agent or a Holder as soon as possible following such request copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.01, in such form as provided for in this Indenture the normal course by the taxing authority imposing such Taxes and as may be reasonably available to the Issuer or the Guarantors. If, notwithstanding the efforts of the Issuer or Guarantor to obtain such receipts, the same are not obtainable, the Issuer or such Guarantor will provide the Trustee, the Paying Agent or such Holder with other evidence reasonably satisfactory to the Trustee, the Paying Agent or holder of such payments by the Issuer or Guarantor. If reasonably requested by the Trustee, the Issuer and (to the extent thatnecessary) any Guarantors will provide to the Trustee such information as may be in the possession of the Issuer and the Guarantors (and not otherwise in the possession of the Trustee) to enable the Trustee to determine the amount of any withholding Taxes attributable to any particular Holder(s); provided, however, that in no event shall the Issuer or any Guarantor be required to disclose any information that it reasonably deems to be confidential.
(e) Whenever this Indenture or the Notes refers to, in such any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts areAmounts, were if applicable.
(f) This Section 4.12 will survive any termination, defeasance or would be payable discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in respect thereofwhich any successor Person to the Issuer or any Guarantor is incorporated or otherwise resident for tax purposes or any jurisdiction from or through which such person makes any payment on the Notes (or any Guarantee) and any political subdivision or taxing authority or agency thereof or therein.
Appears in 3 contracts
Sources: Indenture (T F Bell Holdings LTD), Indenture (Portishead Insurance Management LTD), Indenture (Townfrost LTD)
Additional Amounts. (a) All payments Amounts to be paid on any series of principal of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees Senior Debt Securities will be made without deduction or withholding or deduction for, or on account of, any and all present or and future income, stamp and other taxes, levies, imposts, duties, assessments charges or governmental charges of whatever nature imposed fees imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which on behalf of the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (United Kingdom or any political subdivision or taxing authority thereof or therein), including, without limitation, therein having the PRC power to tax (each, as applicable, a the “Relevant Taxing Jurisdiction”), or any jurisdiction through which payments are made, unless such deduction or withholding or deduction is required by law or by regulation or governmental policy having the force of law. In If at any time a Taxing Jurisdiction requires the event that any Company to make such withholding deduction or deduction is so requiredwithholding, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Company will pay such additional amounts with respect to interest only on, the Senior Debt Securities (“Additional Amounts”) as will result that are necessary in receipt by order that the Holder net amounts of each Note interest paid to the Holders of such Senior Debt Securities of the particular series, after the deduction or withholding, shall equal the amounts as of interest only which would have been received by such Holder payable on the Senior Debt Securities if the deduction or withholding had no such withholding or deduction not been required. However, except that no Additional Amounts shall be payablethis will not apply to any such tax, levy, impost, duty, charge or fee, which would not have been deducted or withheld but for the fact that:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or the beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are maderelevant Senior Debt Security is a domiciliary, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary national or resident of such Relevant Jurisdiction of, or treated as a resident thereof engaging in business or being or having been physically present or engaged in a trade or business therein or having or having had maintaining a permanent establishment therein;or is physically present in, the Taxing Jurisdiction or otherwise has some connection with the Taxing Jurisdiction other than the holding or ownership of the relevant Senior Debt Security, or the collection of any payment of (or in respect of) principal of, or any interest, or other payment on, any Senior Debt Security of the relevant series,
(2ii) except in the presentation case of such Note winding-up in the United Kingdom, the relevant Senior Debt Security is presented (in cases in which where presentation is required) for payment in the United Kingdom,
(iii) the relevant Senior Debt Security is presented (where presentation is required) for payment more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the Holder thereof would have been entitled to such the Additional Amounts if it had presented such Note on presenting the same for payment on any date within such 30-at the close of that 30 day period;,
(3iv) the failure Holder or the beneficial owner of the relevant Senior Debt Security or the beneficial owner of any payment of (or in respect of) principal of or any interest or other payment on, the relevant Senior Debt Security failed to comply with a request of the Company or its liquidator or other authorized person addressed to the Holder (x) to provide information concerning the nationality, residence or identity of the Holder or the beneficial owner or (y) to comply with make any declaration or other similar claim to satisfy any requirement, which in the case of (x) or (y), is required or imposed by a timely request statute, treaty, regulation or administrative practice of the CompanyTaxing Jurisdiction as a precondition to exemption from all or part of the tax, a Surviving Personlevy, impost, duty, charge or fee,
(v) the deduction or withholding is imposed by reason of any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to agreement with the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or U.S. Internal Revenue Service in connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through Sections 1471-1474 of the U.S. Internal Revenue Code of 1986, as amended and the U.S. Treasury regulations thereunder (“FATCA”), any current intergovernmental agreement between the United States and the United Kingdom or future Treasury Regulations any other jurisdiction with respect to FATCA, or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCAimplementing, or relating to, FATCA or any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAagreement, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(Evi) any combination of taxessubclauses (i) through (v) above, duties, assessments or other governmental charges referred nor shall Additional Amounts be paid with respect to in any interest only on the preceding clauses (A), (B), (C) and (D); or
(ii) Senior Debt Securities to a any Holder that who is a fiduciary, fiduciary or partnership or any person other than the sole beneficial owner of any such payment to the extent that such payment would be required by the laws of any Taxing Jurisdiction to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, purposes of a beneficiary or partner or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a beneficial owner who would not have been entitled to such Additional Amounts Amounts, had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
(b) Holder. Whenever in this Senior Debt Securities Indenture there is mentioned mentioned, in any context context, the payment of principal of, and any premium or interest on, in respect of, any Note or under Senior Debt Security of any Subsidiary Guarantee or JV Subsidiary Guarantee, series such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to the provisions of this Section and as if express mention of the payment of Additional Amounts (if applicable) were made in any provisions hereof where such express mention is not made. Upon request from the Trustee or a paying agent, the Company shall provide information reasonably necessary and readily available in order to enable to the Trustee or paying agent to determine whether any withholding obligations under FATCA apply. Neither the Company, the Trustee or a paying agent shall have any liability in connection with the Company’s or Trustee’s or paying agent’s compliance with any such withholding obligation under applicable law.
Appears in 3 contracts
Sources: Twentieth Supplemental Indenture (Lloyds Banking Group PLC), Eighteenth Supplemental Indenture (Lloyds Banking Group PLC), Seventeenth Supplemental Indenture (Lloyds Banking Group PLC)
Additional Amounts. (aIf the Note Certificate(s) All payments provide for the payment of principal of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitationAdditional Amounts, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will Trust agrees to pay such additional amounts (“Additional Amounts”) as will result in receipt by to the Holder of each any such Note of such amounts as would have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(i) for or on account of:
(A) as provided in the Note Certificate(s). Whenever in the Indenture there is mentioned, in any taxcontext, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and or interest or premium on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under the net proceeds received on the sale or exchange of any Subsidiary Guarantee or JV Subsidiary GuaranteeNote, such mention reference shall be deemed to include reference to the payment of Additional Amounts provided for in this by the terms established by the Indenture or pursuant to the Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Note Certificate(s) provide for the payment of Additional Amounts, the Note Certificate will provide that the Trust will pay, or cause to be paid, Additional Amounts to a Holder of Notes to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Notes by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Notes, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Notes were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of one or more of the Notes, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Notes;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of the Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of Notes to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of Notes, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Notes;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Notes being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Note, the effect of which is to make payment in respect of the Notes subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
Appears in 2 contracts
Sources: Standard Indenture Terms (Allstate Life Insurance Co), Indenture Agreement (Allstate Life Insurance Co)
Additional Amounts. (a) All payments and deliveries made by, or on behalf of, the Company or any of the Guarantors (each a “Payor”) under or with respect to the Notes, including, but not limited to, payments of principal of(including, if applicable, the Fundamental Change Repurchase Price and the Redemption Price, and premium for the avoidance of doubt, inclusive of capitalized PIK Interest), payments of interest (if anyincluding capitalizing PIK Interest) and interest on the Notes deliveries of Common Stock or under the Subsidiary Guarantees and JV Subsidiary Guarantees will other Reference Property and/or payments of cash, in each case, upon conversion, shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or a taxing authority within any jurisdiction (other than the United States of America or any state or other political subdivision thereof) in which the CompanyPayor is, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is for tax purposes, organized or resident for tax purposes or doing business or through which payment is made or deemed made (or or, in each case, any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC ) (each, as applicable, a “Relevant Taxing Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will Payor shall pay such additional amounts (the “Additional Amounts”) as will result in receipt may be necessary to ensure that the net amount received by the Holder of each Note of beneficial owner after such withholding or deduction (and after deducting or withholding any taxes on the Additional Amounts) shall equal the amounts as that would have been received by such Holder beneficial owner had no such withholding or deduction been required, except ; provided that no Additional Amounts shall be payable:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are madeTaxing Jurisdiction, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guaranteethereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing 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;
(2) the presentation of such Note by the Holder (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premiumof (including the Fundamental Change Repurchase Price and the Redemption Price, if anyapplicable, and for the avoidance of doubt, inclusive of capitalized PIK Interest) and interest (including capitalizing PIK Interest) on, such Note or the delivery of Common Stock and other Reference Property and/or payments of cash, in each case, upon conversion of such 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 date within such 30-day period;; or
(3) the failure of the Holder or beneficial owner to comply with a timely request of from the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder Payor to provide information certification, information, documents or other evidence concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any Relevant Jurisdiction declaration or the jurisdiction through which payments are madesatisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required under by statute, treaty, regulation or administrative practice of the tax laws of such jurisdiction Relevant Taxing Jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction Holder or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewherebeneficial owner;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on under or with respect to the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any)Notes;
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAFATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA; or;
(E) any combination of taxestax, dutiesduty, assessments assessment or other governmental charges charge required to be withheld or deducted by any Paying Agent from any payment, if such payment could have been made without such withholding or deduction by at least one other Paying Agent; or
(F) any combination of taxes referred to in the preceding clauses (A), (B), (C), (D) and (DE); , or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price and the Redemption Price, if applicable, and for the avoidance of doubt, inclusive of capitalized PIK Interest) and interest (including capitalizing PIK Interest) on, such Note or the delivery of Common Stock or other Reference Property and/or payments of cash, in each case, upon conversion of such Note to a Holder, if the Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any that payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a partner or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner partner, member or beneficial owner been the Holder thereof.
(b) Whenever there In the event that (i) the taxing authority of a Relevant Taxing Jurisdiction determines that amounts should have been withheld or deducted in respect of any payments or deliveries under or with respect to the Notes in excess of any amounts that were actually withheld or deducted by the Payor, and (ii) the Payor would have been required to pay Additional Amounts if such amounts had been withheld or deducted, then the Payor shall indemnify each beneficial owner of the Notes, on an after-tax basis, for any and all losses incurred as a result of its failure to make such withholdings and deductions and to pay Additional Amounts; provided that (i) only direct losses (and no consequential losses or damages) shall be recoverable pursuant to this Section 4.09(b), (ii) no indemnification shall be required pursuant to this Section 4.09(b) unless and until such beneficial owner has exhausted all reasonable remedies available to it to reduce or eliminate the amount of such losses, and (iii) as a condition of such indemnification such beneficial owner shall reasonably assist the Payor in any attempt the Payor may make to seek to secure a reduction or refund of any such amounts, which reduction or refund shall be for the account of the Payor to the extent of any indemnification previously provided to such beneficial owner.
(c) If the Payor is mentioned required to make any deduction or withholding from any payments with respect to the Notes, the Payor will deliver to the Trustee official tax receipts evidencing the remittance to the relevant tax authorities of the amounts so withheld or deducted or other evidence reasonably satisfactory to the Trustee.
(d) Any reference in this Indenture or the Notes in any context to the delivery of Common Stock or other Reference Property and/or payments of cash, in each case, upon conversion of any Note or the payment of principal ofof (including the Fundamental Change Repurchase Price and the Redemption Price, if applicable) and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guaranteeother amount payable with respect to such Note, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to this Section 4.09.
(e) The obligations under this Section 4.09 shall survive any termination, defeasance or discharge of the Indenture, any transfer by a holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which the Payor is, for tax purposes, organized or resident or doing business or through which payment is made or deemed made (or, in each case, any political subdivision or taxing authority thereof or therein).
Appears in 2 contracts
Sources: Indenture (Karyopharm Therapeutics Inc.), Indenture (Karyopharm Therapeutics Inc.)
Additional Amounts. (a) All payments of of, or in respect of, principal of, and premium (if any) and interest on on, the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within on behalf of the Republic of Singapore, including any political subdivision or taxing authority thereof, or any other jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary any Guarantor is organized or resident for tax purposes (or from or through which payment is made, other than the United States or any political subdivision State or taxing authority thereof or therein), (including, without limitationin each case, any political subdivision thereof) (the PRC (each, as applicable, a “Relevant Jurisdiction”), ) or any jurisdiction through which payments are madeauthority thereof or therein having power to tax unless these taxes, unless such withholding or deduction is required by law or by regulation duties, assessments or governmental policy having the force of lawcharges are required to be withheld or deducted. In the event that any such withholding or deduction is so requiredevent, the Company, a Surviving Person Issuers (or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be), will jointly and severally, agree to pay such additional amount as will result (after deduction of such taxes, duties, assessments or governmental charges and any additional taxes, duties, assessments or governmental charges of the Relevant Jurisdiction) in the payment to each Holder of a Note of the amounts that would have been payable in respect of such Notes or under the Guarantees had no withholding or deduction been required (such amounts, “Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder had no such withholding or deduction been required), except that no Additional Amounts shall be payable:
(i) payable for or on account of:
(A1) any tax, duty, assessment or other governmental charge that would not have been imposed but forfor the fact that such Holder:
(1a) is or has been a domiciliary, national or resident of, engages or has been engaged in business, maintains or has maintained a permanent establishment, or is or has been physically present in Singapore or the existence of any present other jurisdiction, or former otherwise has or has had some connection between the Holder or beneficial owner of such Note and with the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding the mere ownership of, or receipt of payment under, such Note or under the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, Guarantees (including, without limitation, such the Holder or beneficial owner being or having been a national, domiciliary or resident of such in the 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;for tax purposes); or
(2b) the presentation of presented such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment in respect of the principal of, premium, if any, and interest on, such Note first became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, 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 date day within such 30-day periodperiod of 30 days;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B2) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C3) any tax, duty, assessment or other governmental charge which is payable otherwise than by deduction or withholding from payment of interest, principal or premium on the Notes or under the Guarantees;
(4) any tax, duty, assessment or other governmental charge that is payable otherwise than imposed or withheld by withholding reason of the failure to duly and timely comply by the Holder or deduction from payments the beneficial owner of principala Note with a request by the Company addressed to the Holder (A) to provide information concerning the nationality, premium residence, identity or connection with the Relevant Jurisdiction of the Holder or such beneficial owner or connection with the Relevant Jurisdiction or (if anyB) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); oris required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, duty, assessment or other governmental charge;
(ii5) any payment of the principal of or premium or interest on any Note to a any Holder that who is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of any the payment to the extent that such payment would be required to be included in that, if the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who had held the Note directly, such beneficial owner would not have been entitled to such the Additional Amounts;
(6) except in the case of a winding up of the Company, any tax, duty, assessment or other governmental charge which would not have been imposed but for the presentation of a Note for payment (where presentation is required) in the Relevant Jurisdiction (unless by reason of the Company’s actions, presentment could not have been made elsewhere); or
(7) any combination of the items listed above. Such Additional Amounts will also not be payable where, had that beneficiary, settlor, partner or the beneficial owner of the Note been the Holder thereof.
Holder, it would not have been entitled to payment of Additional Amounts by reason of clauses (b1) Whenever there is mentioned in through (7) above. If any context taxes are required to be deducted or withheld from payments on the Notes or under the Guarantees, the Company shall promptly provide a receipt of the payment of such taxes (or if such receipt is not available, any other evidence of payment reasonably acceptable to the Trustee). Any reference herein to the payment of the principal of, and any premium or interest on, on any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofunder this Indenture.
Appears in 2 contracts
Sources: Indenture (Avago Technologies Manufacturing (Singapore) Pte. Ltd.), Indenture (Avago Technologies LTD)
Additional Amounts. (a) All payments Unless otherwise specified in any Board Resolution or Officers’ Certificate, as applicable, establishing the terms of principal ofSecurities of a series in accordance with Section 2.07, all amounts of principal, and premium (interest, if any) and interest , on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees any series of Securities will be made paid by the Issuer without deducting or withholding or deduction for, or on account of, any and all present or and future taxes, levies, duties, assessments assessments, imposts or other governmental charges of whatever nature imposed whatsoever imposed, assessed, levied or levied collected by or within any jurisdiction in which for the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (account of the United Kingdom or any political subdivision or taxing authority thereof or therein)therein or if deduction or withholding of any such taxes, includinglevies, without limitationimposts or other governmental charges shall at any time be required by applicable law or regulation of the United Kingdom or any such subdivision or authority, the PRC Issuer will (eachsubject to what follows) pay such additional amounts in respect of principal, interest, if any, and sinking fund payments as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required may be necessary in order that the net amounts received by law or by regulation or governmental policy having the force Holders of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person Securities or the applicable Subsidiary Guarantor or JV Subsidiary GuarantorTrustee under this Indenture, as the case may be, will pay pursuant to the Securities, after such additional deduction or withholding, shall equal the respective amounts (“Additional Amounts”) of principal, interest, if any, and sinking fund payments, as will result specified in receipt by the Holder of each Note of Securities, to which such amounts as Holders or the Trustee would have be entitled had such deduction or withholding not been received by such Holder had no such withholding so imposed, assessed, levied or deduction been requiredcollected; provided, except however, that no Additional Amounts the foregoing shall be payable:
not apply to (i) for any present or on account of:
(A) any future tax, dutylevy, assessment impost or other governmental charge that which would not have been imposed so imposed, assessed, levied or collected but for:
(1) for the existence of any present or former connection between fact that the Holder of the relevant Security (or beneficial owner a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitationpower over, such Holder, if such Holder is an estate, trust, partnership or beneficial owner being corporation) is or has been a domiciliary, national or resident of, or engaging or having been engaged in a national, domiciliary trade or resident of such Relevant Jurisdiction business or treated as maintaining or having maintained a resident thereof permanent establishment or being or having been physically present in, the United Kingdom or engaged in a trade any political subdivision or business taxing authority thereof or therein or otherwise having or having had some connection with the United Kingdom or any political subdivision or taxing authority thereof or therein other than the holding or ownership of a permanent establishment therein;
Security, or the collection of principal of, and interest, if any, on, or the enforcement of, a Security, (2ii) any present or future tax, levy, impost or other governmental charge which would not have been so imposed, assessed, levied or collected but for the presentation of such Note (in cases in which fact that, where presentation is required) , the relevant Security was presented more than 30 days after the later of the date on which the such payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
whichever is later, (3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(Biii) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment levy, impost or other governmental charge;
, (Civ) any present or future tax, assessment levy, impost or other governmental charge that which is payable otherwise than by deduction or withholding or deduction from payments on or in respect of principalthe relevant Security, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(Dv) any present or future tax, assessmentlevy, withholding impost or deduction other governmental charge which would not have been so imposed, assessed, levied, collected or withheld but for the failure to comply with any request addressed to the Holder for certification, identification or other information reporting concerning the nationality, residence, identity or connection with the United Kingdom or any political subdivision or taxing authority thereof or therein of the Holder or beneficial owner of the relevant Security, if compliance is required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current treaty or future Treasury Regulations or rulings promulgated thereunder, any lawby statute, regulation or administrative practice of the United Kingdom or any such political subdivision or taxing authority thereof or therein as a condition to relief or exemption from such tax, levy, impost or other official guidance enacted governmental charge (which such Holder or beneficial owner is legally entitled to provide), (vi) any present or future tax, levy, impost or other governmental charge which a Holder would have been able to avoid by authorizing the paying agent to report information in accordance with the procedure laid down by the relevant tax authority or by producing, in the form requested by the relevant tax authority, a declaration, claim, certificate, document or other evidence establishing exemption therefrom which has been requested of such Holder and which it is legally entitled to provide (vii) any jurisdiction implementing FATCApresent or future tax, any intergovernmental agreement between levy, impost or other governmental charge imposed by the United States and any other jurisdiction to implement FATCA, of America or any agreement with the U.S. Internal Revenue Service under FATCA; or
political subdivision or taxing authority thereof or therein, (Eviii) any combination of taxespresent or future tax, dutieslevy, assessments impost or other governmental charges referred to charge imposed, assessed, levied or collected in the preceding clauses (A), (B), (C) and (D); or
(ii) respect of a payment under or with respect to a Security to any Holder of the relevant Security that is a fiduciary, partnership or a person other than the sole beneficial owner of any such payment or Security to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to the additional amounts or would not have been subject to such Additional Amounts tax, levy, impost or charge, had that beneficiary, settlor, partner member or beneficial owner been the actual Holder thereof.
of such Security; or (bix) Whenever there any combination of items (i) through (viii) above. At least 30 days prior to each date on which any payment under or with respect to any debt securities is mentioned due and payable (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 debt securities is due and payable, in any context which case it will be promptly thereafter), if we will be obligated to pay additional amounts with respect to such payment, we will deliver to the Trustee an Officers’ Certificate stating that such additional amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the trustee to pay such additional amounts to the holders of such debt securities on the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofdate.
Appears in 2 contracts
Sources: Indenture (Smith & Nephew PLC), Indenture (Smith & Nephew PLC)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, If any present or future taxes, duties, assessments or other governmental charges of whatever nature are imposed or levied by or within any jurisdiction in which the Companyjurisdiction, a Surviving Person or an applicable Subsidiary other than the United States, where the Guarantor or JV Subsidiary a successor to the Company or the Guarantor (a “Payor”) is organized or otherwise considered to be a resident for tax purposes (purposes, any jurisdiction, other than the United States, from or through which the Payor makes a payment on the Securities of any Series, or, in each case, any political subdivision organization or taxing governmental authority thereof or therein), including, without limitationtherein having the power to tax (the “Relevant Tax Jurisdiction”) in respect of any payments under the Securities of such Series, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force Payor shall pay to each Holder of law. In the event that any such withholding or deduction Security, to the extent it may lawfully do so, such Additional Amounts as may be necessary in order that the net amounts paid to such Holder will be not less than the amount specified in such Security to which such Holder is so requiredentitled; provided, however, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder Payor shall not be required to make any payment of each Note of such amounts as would have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(i) for or on account of:
(Aa) any tax, duty, assessment or other governmental charge that which would not have been imposed but for:
for (1i) the existence of any present or former connection between the such Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note Holder, if such Holder is an estate, trust, partnership, limited liability company or corporation) and the Relevant Tax Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder (or beneficial owner such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary 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;
therein or (2ii) the presentation of such Note a Security (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which where presentation is required) for payment in on a date more than 30 days after (x) the Relevant Jurisdiction date on which such payment became due and payable or (y) the jurisdiction through date on which payments are madepayment thereof is duly provided for, unless such Note could not have been presented for payment elsewherewhichever occurs later;
(Bb) any estate, inheritance, gift, salesales, transfer, personal property or similar tax, assessment or other governmental charge;
(Cc) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of (or in respect of) principal of, premium, if any, or any interest on, the Securities of such Series;
(d) any tax, assessment or other governmental charge that is payable otherwise than imposed or withheld by withholding reason of the failure by the Holder or deduction from payments the beneficial owner of principalthe Securities of such Series to comply with a request of the Payor addressed to the Holder to provide information, premium (if any) and interest on documents or other evidence concerning the Notes nationality, residence or from payments under identity of the Subsidiary Guarantees Holder or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction such beneficial owner which is required by sections 1471 through 1474 of the Internal Revenue Code of 1986a statute, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any lawtreaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCAgovernmental charge; or
(Ee) any combination of taxesthe above; nor will Additional Amounts be paid with respect to any payment of the principal of, dutiesor any premium or interest on, assessments or other governmental charges referred any Securities of such Series to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a any Holder that who is a fiduciary, fiduciary or partnership or person limited liability company or other than the sole beneficial owner of any such payment to the extent that such payment would be required by the laws of the Relevant Tax Jurisdiction to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, purposes of a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or limited liability company or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Holder of such Securities. The Payor shall provide the Trustee with the official acknowledgment of the relevant tax authority (or, if such acknowledgment is not available, a certified copy thereof.
(b) Whenever there is mentioned in any context evidencing the payment of the withholding taxes by the Payor. Copies of such documentation shall be made available to the Holders of the Securities of such Series or the Paying Agent, as applicable, upon written request therefor. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of, and of or any premium or interest on, or in respect of, any Note Security of any Series or under the net proceeds received on the sale or exchange of any Subsidiary Guarantee or JV Subsidiary GuaranteeSecurity of any Series, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture by the terms of such Series established hereby or pursuant hereto to the 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 Additional Amounts in those provisions hereof where such express mention is not made. Except as otherwise provided in or pursuant to this Indenture or the Securities of the applicable Series, at least 10 days prior to the first Interest Payment Date with respect to such Series of Securities (or if the Securities of such Series shall not bear interest prior to Maturity, the first day on which a payment of principal is made), and at least 10 days prior to each date of payment of principal or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company shall furnish to the Trustee and the 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, or interest on, if any, and Additional Amounts, if any, with respect to the Securities of such Series shall be made to Holders of Securities of such Series without withholding for or on account of any tax, assessment or other governmental charge. 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, that the Company will pay all such amounts required to be withheld to the relevant governmental authority and the Company agrees to pay to the Trustee or such Paying Agent the Additional Amounts required by the terms of such Securities. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold each of them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith 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 pursuant to this Section 3.4.
Appears in 2 contracts
Sources: Senior Indenture (Markel Corp), Senior Indenture (ALTERRA CAPITAL HOLDINGS LTD)
Additional Amounts. (a) All payments amounts of principal ofprincipal, premium, if any, and premium (interest, if any) and interest , on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees any series of Subordinated Debt Securities will be made paid by the Company without deduction or withholding or deduction for, or on account of, any and all present or and future income, stamp and other taxes, levies, imposts, duties, assessments charges, fees, deductions or governmental charges of whatever nature imposed withholdings now or levied hereafter imposed, levied, collected, withheld or assessed by or within any jurisdiction in which on behalf of the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (United Kingdom or any political subdivision or taxing any authority thereof or therein), including, without limitation, therein having the PRC power to tax (each, as applicable, a the “Relevant U.K. Taxing Jurisdiction”), or any jurisdiction through which payments are made, unless such deduction or withholding or deduction is required by law or by regulation or governmental policy having the force of law. In Unless otherwise specified in any Board Resolution, or an Officer’s Certificate, establishing the event that terms of Subordinated Debt Securities of a series in accordance with Section 3.01, if deduction or withholding of any such withholding taxes, levies, imposts, duties, charges, fees, deductions or deduction is so requiredwithholdings shall at any time be required by the U.K. Taxing Jurisdiction, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Company will pay such additional amounts with respect to interest and any redemption premium, on any series of Subordinated Debt Securities (“Additional Amounts”) as will result may be necessary in receipt by order that the Holder net amounts paid to the Holders of each Note Subordinated Debt Securities of the particular series, after such deduction or withholding, shall equal the amounts of such amounts as payments which would have been received by payable in respect of such Holder Subordinated Debt Securities had no such deduction or withholding or deduction been required; provided, except however, that no Additional Amounts shall be payablethe foregoing will not apply to any such tax, levy, impost, duty, charge, fee, deduction or withholding that would not have been payable or due but for the fact that:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or the beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are madeSubordinated Debt Security is a domiciliary, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary national or resident of such Relevant Jurisdiction of, or treated as a resident thereof engaging in business or being or having been physically present or engaged in a trade or business therein or having or having had maintaining a permanent establishment therein;or physically present in, the U.K. Taxing Jurisdiction or otherwise has some connection with the U.K. Taxing Jurisdiction other than the mere holding or ownership of a Subordinated Debt Security, or the collection of the payment on any Subordinated Debt Security of the relevant series,
(2ii) except in the presentation case of such Note a winding-up of the Company in the United Kingdom, the relevant Subordinated Debt Security is presented (in cases in which where presentation is required) for payment in the United Kingdom,
(iii) the relevant Subordinated Debt Security is presented (where presentation is required) for payment more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had presented such Note Amount on presenting (where presentation is required) the Subordinated Debt Security for payment on any date within at the close of such 30-30 day period;,
(3iv) the failure Holder or the beneficial owner of the relevant Subordinated Debt Security or the payment on such Subordinated Debt Security failed to comply with a request by the Company or its liquidator or other authorized person addressed to the Holder (x) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (y) to comply with make any declaration or other similar claim to satisfy any requirement, which in the case of (x) or (y), is required or imposed by a timely request statute, treaty, regulation or administrative practice of the Company, U.K. Taxing Jurisdiction as a Surviving Person, any Subsidiary Guarantor precondition to exemption or relief from all or part of such deduction or withholding,
(v) the withholding or deduction is required to be made pursuant to European Council Directive 2003/48/EC on the taxation of savings income or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning Directive amending, supplementing or replacing such Holder’s Directive, or its beneficial owner’s nationalityany law implementing or complying with, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction introduced in order to reduce conform to, such Directive or eliminate any Directives,
(vi) the withholding or deduction as is required to which Additional Amounts would have otherwise been payable be made pursuant to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (“FATCA”)amended, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCATreasury entered into with respect thereto, any U.S. Treasury regulation issued thereunder or any other official interpretations or guidance issued with respect thereto; any intergovernmental agreement entered into with respect thereto, or any law, regulation, or other official interpretation or guidance promulgated pursuant to such an intergovernmental agreement,
(vii) the relevant Subordinated Debt Security is presented (where presentation is required) for payment by or on behalf of a Holder who would have been able to avoid such withholding or deduction by presenting (where presentation is required) the relevant Subordinated Debt Security to another paying agent in a Member State of the European Union, or
(Eviii) any combination of taxessubclauses (i) through (vii) above, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) nor shall Additional Amounts be paid with respect to a payment on the Subordinated Debt Securities to any Holder that who is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of any such payment to the extent that such payment would be required by the laws of the U.K. Taxing Jurisdiction to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, purposes of a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a beneficial owner who would not have been entitled to such Additional Amounts Amounts, had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
(b) Holder. Whenever in this Subordinated Debt Securities Indenture there is mentioned mentioned, in the context of any context Subordinated Debt Security, the payment of principal the principal, premium, if any, or interest, if any, on, or in respect of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeSubordinated Debt Security, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to the provisions of this Section and as if express mention of the payment of Additional Amounts (if applicable) were made in any provisions hereof where such express mention is not made.
Appears in 2 contracts
Sources: Seventh Supplemental Indenture (NatWest Group PLC), Seventh Supplemental Indenture (NatWest Group PLC)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on made by the Issuers under or with respect to the Notes or under any of the Subsidiary Guarantees and JV Subsidiary Guarantees Guarantors on its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxesTaxes unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, dutiesor on account of, assessments or governmental charges of whatever nature any Taxes imposed or levied by or within on behalf of any jurisdiction in which the CompanyIssuers or any Guarantor (including any successor entity), a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized then 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 “Tax Jurisdiction”), will at any time be required to be made from or Taxes imposed directly on any Holder or beneficial owner of the Notes on any payments made by the Issuers under or with respect to the Notes or any of the Guarantors with respect to any Guarantee, including payments of principal, redemption price, purchase price, interest or premium, the Issuers or the relevant Guarantor, as applicable, will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by each Holder (including Additional Amounts) after such withholding or deduction will equal the respective amounts which would have been received in respect of such payments in the absence of such withholding, deduction or imposition; provided, however, that no Additional Amounts will be payable with respect to:
(1) any Tax imposed by the United States or by any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall be payable:;
(i) for or on account of:
(A2) any tax, duty, assessment or other governmental charge that Taxes which would not have been imposed but for:
(1) the existence of for any present or former connection between the Holder or the beneficial owner of the Notes, such Note as being a citizen or resident or national of, incorporated in or carrying on a business, and the Relevant relevant Taxing Jurisdiction or the jurisdiction through in which payments such Taxes are made, imposed (other than merely by the mere holding of such Note note or enforcement of rights thereunder or the receipt of payments thereunder in respect thereof) or under any other connection arising as a Subsidiary Guarantee result of the holding of the Notes;
(3) any Taxes that are imposed or JV Subsidiary Guaranteewithheld as a result of the failure of the Holder or beneficial owner of the Notes to comply with any written request, includingmade to that Holder or beneficial owner in writing at least 30 days before any such withholding or deduction would be payable, without limitationby the Issuers or any of the Guarantors or any other Person through whom payment may be made to provide timely or accurate information concerning the nationality, residence or identity of such Holder or beneficial owner being or having been to make any valid or timely declaration or similar claim or satisfy any certification information or other reporting requirement, which is required or imposed by a nationalstatute, domiciliary treaty, regulation or resident administrative practice of the relevant Tax Jurisdiction as a precondition to exemption from all or part 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 thereinTaxes;
(24) any Note presented for payment (where a Note is in the presentation form of such a definitive Note (in cases in which and presentation is required) more than 30 days after the later of the date on which the relevant payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant is first made available for payment to the terms thereof or was made or duly provided for, Holder (except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had the note been presented on the last day of such Note for payment on any date within such 30-30 day period);
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B5) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment tax or other governmental chargeassessment;
(C6) any taxTaxes withheld, assessment deducted or imposed on a payment to an individual and which are required to be made pursuant to European Council Directive 2003/48/EC or any other governmental charge that is payable otherwise than by withholding or deduction from payments directive implementing the conclusions of principal, premium (if any) the ECOFIN Council meeting of 26 and interest 27 November 2000 on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 taxation of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, savings income or any agreement law implementing or complying with the U.S. Internal Revenue Service under FATCAor introduced in order to conform to, such Directive; or
(E7) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses items (A), 1) through (B), (C6) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereofabove.
(b) Whenever there The Issuers and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, transfer, court or documentary taxes, or any other excise or property taxes, charges or similar levies or Taxes which are levied by any jurisdiction in which the Issuers or any Guarantor (including any successor entity) is mentioned then incorporated, engaged in business or resident for tax purposes or any context political subdivision thereof or therein on the execution, delivery, registration or enforcement 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 to the Notes or the Guarantees.
(c) If either Issuer or any Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Guarantee, the relevant Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date which is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the relevant Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officers’ Certificate must also set forth any other information reasonably necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date. The relevant Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts.
(d) The relevant 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. The relevant 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. The relevant Issuer or the relevant Guarantor will furnish to the Holders, within 60 days after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the relevant Issuer or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments by such entity.
(e) Whenever in this Indenture there is mentioned, in any context, the payment of amounts based upon the principal ofamount of the Notes or of principal, and interest or of any premium other amount payable under, or interest onwith respect to, any Note or under any Subsidiary Guarantee or JV Subsidiary Guaranteeof the Notes, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Sources: Indenture (MagnaChip Semiconductor LTD (United Kingdom)), Indenture (MagnaChip Semiconductor LTD (United Kingdom))
Additional Amounts. (a) All payments of principal ofprincipal, premium, if any, and premium (if any) and interest made by or on behalf of the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will Company in respect of any Security shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (collectively, “Taxes”) imposed or levied by or within Bermuda, the British Virgin Islands, Cayman Islands, Hong Kong, the PRC or any jurisdiction in which where the Company, Company or the Paying Agent is otherwise considered by a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or taxing authority to be a resident for tax purposes (or in each case, including any political subdivision or taxing any authority therein or thereof or therein), including, without limitation, having power to tax) (the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction of such Taxes is required by law or by regulation or governmental policy having the force of law. In If the event that any Company is required to make such withholding or deduction is so requireddeduction, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will Company shall pay such additional amounts (“Additional Amounts”) as will result in receipt by the each Holder of each Note Securities of such amounts as would have been received by such Holder had no such withholding or deduction of such Taxes been required, except that no such Additional Amounts shall be payable:
(i) for or on account of:
(A) in respect of any tax, duty, assessment or other governmental charge such Taxes that would not have been imposed imposed, deducted or withheld but for:
(1) for the existence of any connection (whether present or former connection former) between the Holder or beneficial owner of such Note a Security and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note Security or the receipt of payments thereunder receiving principal, premium, if any, or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, interest in respect thereof (including such Holder or beneficial owner being or having been a national, domiciliary 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);
(2ii) the presentation in respect of such Note any Security presented for payment (in cases in which where presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided forrelevant date, except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had presented such Note on presenting the same for payment on any date within the last day of such 30-day period. For this purpose, the “relevant date” in relation to any Security means the later of (a) the due date for such payment or (b) the date such payment was made or duly provided for;
(3iii) the in respect of any Taxes that would not have been imposed, deducted or withheld but for a failure of the Holder or beneficial owner of a Security to comply with a timely request of by the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor Company addressed to the Holder or beneficial owner to provide information concerning such Holder▇▇▇▇▇▇’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or;
(4iv) the presentation in respect of such Note any Taxes imposed as a result of a Security being presented for payment (in cases in which where presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, unless such Note Security could not have been presented for payment elsewhere;
(Bv) in respect of any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental chargeTaxes;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(iivi) to any Holder of a Holder Security that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof;
(vii) in respect of any such Taxes withheld or deducted from any payment under or with respect to any Security where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26—27, 2000 on the taxation of saving income or any law implementing or complying with, or introduced in order to conform to, any such directive;
(viii) with respect to any withholding or deduction that is imposed in connection with Sections 1471-1474 of the U.S. Internal Revenue Code and U.S. Treasury regulations thereunder (“FATCA”), any intergovernmental agreement between the United States and any other jurisdiction implementing or relating to FATCA or any non-U.S. law, regulation or guidance enacted or issued with respect thereto;
(ix) any such Taxes payable otherwise than by deduction or withholding from payments under or with respect to any Security; or
(x) any combination of Taxes referred to in the preceding clauses (i) through (ix) above.
(b) Whenever there In the event that any withholding or deduction for or on account of any Taxes is mentioned in any context the required and Additional Amounts are payable with respect thereto, at least 10 Business Days prior to each date of payment of principal of, premium, if any, or interest on the Securities, the Company shall furnish to the Trustee and the Paying Agent, if other than the Trustee, an Officers’ Certificate specifying the amount required to be withheld or deducted on such payments to such Holders, certifying that the Company shall pay such amounts required to be withheld to the appropriate governmental authority and certifying to the fact that the Additional Amounts will be payable and the amounts so payable to each Holder, and that the Company will pay to the Trustee or such Paying Agent the Additional Amounts required to be paid; provided that no such Officers’ Certificate will be required prior to any date of payment of principal of, premium, if any, or interest on such Securities if there has been no change with respect to the matters set forth in a prior Officers’ Certificate. The Trustee and each Paying Agent shall be entitled to rely on the fact that any Officers’ Certificate contemplated by this Section 6.05(b) has not been furnished as evidence of the fact that no withholding or deduction for or on account of any Taxes is required. The Company covenants to indemnify the Trustee and any premium Paying Agent for and to hold them harmless against any loss, liability or reasonably incurred expense without fraudulent activity, gross 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 such Officers’ Certificate furnished pursuant to this Section 6.05(b) or on the fact that any Officers’ Certificate contemplated by this Section 6.05(b) has not been furnished.
(c) Whenever in this Indenture there is mentioned, in any context, the payment of principal, premium, if any, or interest on, in respect of any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeSecurity, such mention shall be deemed to include the payment of Additional Amounts provided for in this Indenture Indenture, to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to this Indenture.
(d) Sections 6.05(a), (b) and (c) shall apply in the same manner with respect to the jurisdiction in which any successor Person to the Company is organized or resident for tax purposes or any authority therein or thereof having the power to tax (a “Successor Jurisdiction”), substituting such Successor Jurisdiction for the Relevant Jurisdiction.
(e) If the Company or its successor is required to make any deduction or withholding from any payments or deliveries with respect to the Notes, it shall deliver to the Trustee, the Paying Agent and the Holders official tax receipts evidencing the remittance to the relevant tax authorities of the amounts so withheld or deducted.
(f) The obligation of the Company to make payments of Additional Amounts under this Section 6.05 shall survive any termination, defeasance or discharge of this Indenture.
Appears in 2 contracts
Sources: Indenture (WiMi Hologram Cloud Inc.), Indenture (Fanhua Inc.)
Additional Amounts. (a) All payments of principal of, and premium (if any) or in respect of, principal of and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will Securities shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature any kind whatsoever imposed or levied by or within any jurisdiction in which on behalf of the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (United Kingdom or any political subdivision or taxing any Taxing authority thereof or therein), including, without limitation, the PRC therein (each, as applicable, a “Relevant JurisdictionU.K. Withholding Taxes”), unless such U.K. Withholding Taxes are required by the United Kingdom or any jurisdiction through which payments are made, unless such withholding subdivision or deduction is required by law authority to be withheld or by regulation or governmental policy having the force of lawdeducted. In the event that any such of (i) a Change in Tax Law or (ii) a failure by the Company to list or maintain a listing of the Securities on a “recognized stock exchange” (within the meaning of Section 841 of the United Kingdom Income and Corporation Taxes Act 1988) (a “Listing Failure”), the effect of which, in each case, is to require the withholding or deduction is so requiredby the Company or the Guarantors pursuant to the Securities or the Guarantees, respectively, of any amount for U.K. Withholding Taxes that would not have been required to be withheld or deducted absent such event, the Company, a Surviving Person Company or the applicable Subsidiary Guarantor or JV Subsidiary GuarantorGuarantors, as the case may be, will pay such additional amounts (“Additional Amounts”) as will on the Securities that result (after deduction or withholding of such U.K. Withholding Taxes, including any deduction or withholding of such U.K. Withholding Taxes with respect to such Additional Amounts) in receipt by the payment to each Holder of each Note of such a Security the amounts as that would have been received by payable in respect of such Holder Security had no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(i) so payable for or on account of:
(Aa) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
for (1) the existence of any present or former connection between the a Holder or the beneficial owner of a Security (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note Holder, if such Holder is an estate, trust, partnership or corporation) and the Relevant Jurisdiction United Kingdom or the jurisdiction through which payments are made, any political subdivision or taxing authority thereof or therein (other than merely holding such Note mere ownership of, or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guaranteepayment under, such Security) including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a nationalresident, domiciliary or resident of such Relevant Jurisdiction or treated as a resident thereof national of, or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment in, the United Kingdom or any political subdivision or any Taxing authority thereof or therein;
, (2) the presentation of a Security or a Guarantee for payment in the United Kingdom or any political subdivision or any Taxing authority thereof or therein, unless such Note Security or Guarantee could not have been presented elsewhere, or (in cases in which 3) the presentation is required) of a Security or a Guarantee for payment on a date more than 30 days after the later of the date on which the such payment in respect of the principal of, premium, if any, and interest on, such Note Security became due and payable pursuant to the terms thereof or was made or duly provided for, whichever occurs later, except to the extent that the Holder thereof of such Security or such Guarantee would have been entitled to such Additional Amounts if it had presented such Note Security or such Guarantee for payment on any date within such 30-day period;.
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(Bb) any estate, inheritance, gift, sale, transfer, personal property or similar tax, duty, assessment or governmental charge;
(c) any tax, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of a Security to comply, or the delay in complying, with a request in writing of the Company or a Guarantor (which request shall be furnished to the Trustee) (1) to provide information concerning the nationality, residence, place of establishment or identity of the Holder or such beneficial owner or (2) to make any declaration or other similar claim or satisfy any information or reporting requirement which, in the case of (1) or (2), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from or reduction of all or part of such tax, duty, assessment or other governmental charge;
(Cd) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding or deduction resulting from payments a Listing Failure with respect to any Security issued in the form of principal, premium (if any) and interest on a certificated Security pursuant to the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any)terms of this Indenture;
(De) any tax, assessmentduty, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation assessment or other official guidance enacted in governmental charge which is imposed on a payment to any jurisdiction implementing FATCAholder and is required to be made pursuant to any European Union Directive 2003/48 on the taxation of savings income proposed to come into effect from July 1, any intergovernmental agreement between 2005, at the United States and any other jurisdiction to implement FATCAearliest, or any agreement with the U.S. Internal Revenue Service under FATCAlaw complying with, or introduced in order to conform to, such Directive; or
(Ef) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses items (Aa), (Bb), (Cc), (d) and (D)e) above; or
(ii) nor shall Additional Amounts be paid with respect to a any payment of the principal of, or any interest on, any Security or Guarantee to any Holder that who is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of any payment such Security or Guarantee, to the extent that such payment would be required by the laws of the United Kingdom (or any political subdivision or relevant Taxing authority thereof or therein) to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, purposes of a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
(b) of the Security. At least 30 days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Company or a Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company or the Guarantor will deliver to the Trustee an Officer’s 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 Trustee to pay such Additional Amounts to Holders on the payment date. Whenever in this Indenture there is mentioned mentioned, in any context context, the payment of principal ofprincipal, and Redemption Price, interest or any premium other amount payable under or interest on, with respect to any Note Security or under the net proceeds received on the sale or exchange of any Subsidiary Guarantee or JV Subsidiary GuaranteeSecurity, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to this Indenture.
Appears in 2 contracts
Sources: Indenture (A I M Management Group Inc /De/), Indenture (A I M Management Group Inc /De/)
Additional Amounts. (a) All payments Payments made by or on behalf of principal the Company or any Guarantor, as applicable, on, or in respect of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Note Guarantees will be made free and clear of and without withholding or deduction for, or on account of, any present or future taxesincome, dutiesstamp or other tax, assessments duty, levy, impost, assessment or governmental other similar charges in the nature of whatever nature a tax, including related penalties and interest (collectively, “Taxes”), unless the Company, any Guarantor or the Paying Agent is required to withhold or deduct such amounts by law. If the Company, any Guarantor or the Paying Agent is required to withhold or deduct any amount for or on account of Taxes imposed or levied by or within on behalf of any jurisdiction (other than the United States) in which the Company, a Surviving Person Company or an applicable Subsidiary Guarantor or JV Subsidiary any Guarantor is organized organized, formed or incorporated or resident for tax purposes (or from or through which payments by or on behalf of the Company or any Guarantor are made, or any political subdivision or taxing territory thereof (or, in each case, any authority or agency therein or thereof or therein), including, without limitation, having the PRC power to tax) (each, as applicable, a “Relevant Taxing Jurisdiction”), from any payment made with respect to the Notes or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requireda Note Guarantee, the Company, a Surviving Person Company or the applicable Subsidiary such Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by may be necessary so that the Holder of each Note of such amounts as would have been net amount received by such each Holder had no and beneficial owner (including Additional Amounts) after such withholding or deduction (including any withholding or deduction from such Additional Amounts) will not be less than the amount the Holder or beneficial owner would have received in respect of such payment on the Notes or the Note Guarantee if such Taxes had not been required, except withheld or deducted; provided that no Additional Amounts shall will be payablepayable with respect to Taxes:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed or levied but for:
(1) for the existence of any present or former connection (other than the mere acquisition, ownership or holding of, or the receipt of payment or the exercise or enforcement of rights in respect of, the Notes or the Note Guarantees) between the Holder or beneficial owner of the Notes (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder or beneficial owner, if such Note Holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary GuaranteeTaxing Jurisdiction, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary citizen or resident of such Relevant Jurisdiction thereof or treated as a resident thereof or domiciled therein or a national 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;
(2ii) that are estate, inheritance, gift, sales, excise, transfer, personal property, wealth or similar Taxes;
(iii) payable other than by deduction or withholding from payments of principal and premium, if any, or interest on the Notes or the Note Guarantees;
(iv) that would not have been imposed but for the failure of the applicable recipient of such payment to comply with any reasonable certification, identification, information, documentation or other reporting requirement to the extent:
(a) such compliance is required by applicable law or official administrative practice or an applicable treaty as a precondition to exemption from, or reduction in the rate of deduction or withholding of, such Taxes (including, without limitation, a certification that the Holder or beneficial owner is not resident in a Taxing Jurisdiction); and
(b) at least 30 days before the first payment date with respect to which such Additional Amounts would otherwise have been payable, the Company or Guarantor has notified such recipient in writing that such recipient is required to comply with such requirement;
(v) that would not have been imposed but for the presentation of such Note a note (in cases in which where presentation is required) for payment on a date more than 30 days after the later of date on which such payment became due and payable or the date on which payment thereof was duly provided for, whichever occurred later;
(vi) that are imposed or withheld pursuant to Sections 1471 through 1474 of the Code, as of the Issue Date (or any amended or successor version of such sections that is not materially more onerous to comply with), any regulations promulgated thereunder or official interpretations thereof, any similar law, regulation, rule or practice adopted pursuant to or implementing an intergovernmental agreement between a 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; and
(vii) any combination of the foregoing items. All references in this Indenture or the Notes to the payment of the principal of, of or premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such that context, Additional Amounts are, were or would be payable in respect thereof. The obligations of the Company and any Guarantor to pay Additional Amounts if and when due will survive the termination of this Indenture and the payment of all other amounts in respect of the Notes and the Note Guarantees. The Company or Guarantor, as the case may be, will provide the Trustee with the official acknowledgment of the Taxing Jurisdiction (or, if such acknowledgment is not obtained by the Company or Guarantor despite it having used all reasonable efforts to do so, other reasonable documentation) evidencing any payment of any Taxes in respect of which the Company or Guarantor has paid any Additional Amounts. Copies of such documentation will be made available by the Company to the Holders or beneficial owners of the Notes or the Paying Agent, as applicable, upon written request therefor. The Company will pay any stamp, issue, excise, transfer, property, registration, court, documentary or other similar taxes and duties (other than, in each case, any such amounts imposed on or measured by net wealth of a Holder), including interest, penalties and other liabilities related thereto, imposed by a Taxing Jurisdiction in respect of the creation, issue, delivery, enforcement, registration and offering of the Notes, the initial sale of the Notes by the initial purchasers as contemplated in the Offering Memorandum, or the execution of the Notes, this Indenture or any other related document or instrument, in each case save for any such taxes or duties which arise or are increased as a result of any document being voluntarily registered or voluntarily presented in any court in any jurisdiction by a Holder, beneficial owner or initial purchaser of the Notes (provided that for these purposes any such registration or presentation which, in the reasonable determination of a Holder, beneficial owner or initial purchaser of the Notes (as relevant), is reasonably required to protect its legal or economic interests shall not be regarded as having been voluntarily registered or voluntarily presented), and the Company will indemnify the Holders and beneficial owners of the Notes from and against any such amounts paid by such Holders or beneficial owners. For the avoidance of doubt, the foregoing obligations will apply to any successor to the Company or any Guarantor.
Appears in 2 contracts
Sources: Indenture (Chord Energy Corp), Indenture (Chord Energy Corp)
Additional Amounts. (a) All payments of principal ofprincipal, premium, if any, and premium (if any) and interest made by or on behalf of the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will Company in respect of any Security shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (collectively, “Taxes”) imposed or levied by or within Bermuda, the British Virgin Islands, Cayman Islands, Hong Kong, the PRC or any jurisdiction in which where the Company, Company or the Paying Agent is otherwise considered by a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or taxing authority to be a resident for tax purposes (or in each case, including any political subdivision or taxing any authority therein or thereof or therein), including, without limitation, having power to tax) (the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction of such Taxes is required by law or by regulation or governmental policy having the force of law. In If the event that any Company is required to make such withholding or deduction is so requireddeduction, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will Company shall pay such additional amounts (“Additional Amounts”) as will result in receipt by the each Holder of each Note Securities of such amounts as would have been received by such Holder had no such withholding or deduction of such Taxes been required, except that no such Additional Amounts shall be payable:
(i) for or on account of:
(A) in respect of any tax, duty, assessment or other governmental charge such Taxes that would not have been imposed imposed, deducted or withheld but for:
(1) for the existence of any connection (whether present or former connection former) between the Holder or beneficial owner of such Note a Security and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note Security or the receipt of payments thereunder receiving principal, premium, if any, or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, interest in respect thereof (including such Holder or beneficial owner being or having been a national, domiciliary 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);
(2ii) the presentation in respect of such Note any Security presented for payment (in cases in which where presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided forrelevant date, except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had presented such Note on presenting the same for payment on any date within the last day of such 30-day period. For this purpose, the “relevant date” in relation to any Security means the later of (a) the due date for such payment or (b) the date such payment was made or duly provided for;
(3iii) the in respect of any Taxes that would not have been imposed, deducted or withheld but for a failure of the Holder or beneficial owner of a Security to comply with a timely request of by the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor Company addressed to the Holder or beneficial owner to provide information concerning such HolderH▇▇▇▇▇’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or;
(4iv) the presentation in respect of such Note any Taxes imposed as a result of a Security being presented for payment (in cases in which where presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, unless such Note Security could not have been presented for payment elsewhere;
(Bv) in respect of any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental chargeTaxes;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(iivi) to any Holder of a Holder Security that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof;
(vii) in respect of any such Taxes withheld or deducted from any payment under or with respect to any Security where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26—27, 2000 on the taxation of saving income or any law implementing or complying with, or introduced in order to conform to, any such directive;
(viii) with respect to any withholding or deduction that is imposed in connection with Sections 1471-1474 of the U.S. Internal Revenue Code and U.S. Treasury regulations thereunder (“FATCA”), any intergovernmental agreement between the United States and any other jurisdiction implementing or relating to FATCA or any non-U.S. law, regulation or guidance enacted or issued with respect thereto;
(ix) any such Taxes payable otherwise than by deduction or withholding from payments under or with respect to any Security; or
(x) any combination of Taxes referred to in the preceding clauses (i) through (ix) above.
(b) Whenever there In the event that any withholding or deduction for or on account of any Taxes is mentioned in any context the required and Additional Amounts are payable with respect thereto, at least 10 Business Days prior to each date of payment of principal of, premium, if any, or interest on the Securities, the Company shall furnish to the Trustee and the Paying Agent, if other than the Trustee, an Officers’ Certificate specifying the amount required to be withheld or deducted on such payments to such Holders, certifying that the Company shall pay such amounts required to be withheld to the appropriate governmental authority and certifying to the fact that the Additional Amounts will be payable and the amounts so payable to each Holder, and that the Company will pay to the Trustee or such Paying Agent the Additional Amounts required to be paid; provided that no such Officers’ Certificate will be required prior to any date of payment of principal of, premium, if any, or interest on such Securities if there has been no change with respect to the matters set forth in a prior Officers’ Certificate. The Trustee and each Paying Agent shall be entitled to rely on the fact that any Officers’ Certificate contemplated by this Section 6.05(b) has not been furnished as evidence of the fact that no withholding or deduction for or on account of any Taxes is required. The Company covenants to indemnify the Trustee and any premium Paying Agent for and to hold them harmless against any loss, liability or reasonably incurred expense without fraudulent activity, gross 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 such Officers’ Certificate furnished pursuant to this Section 6.05(b) or on the fact that any Officers’ Certificate contemplated by this Section 6.05(b) has not been furnished.
(c) Whenever in this Indenture there is mentioned, in any context, the payment of principal, premium, if any, or interest on, in respect of any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeSecurity, such mention shall be deemed to include the payment of Additional Amounts provided for in this Indenture Indenture, to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to this Indenture.
(d) Sections 6.05(a), (b) and (c) shall apply in the same manner with respect to the jurisdiction in which any successor Person to the Company is organized or resident for tax purposes or any authority therein or thereof having the power to tax (a “Successor Jurisdiction”), substituting such Successor Jurisdiction for the Relevant Jurisdiction.
(e) If the Company or its successor is required to make any deduction or withholding from any payments or deliveries with respect to the Notes, it shall deliver to the Trustee, the Paying Agent and the Holders official tax receipts evidencing the remittance to the relevant tax authorities of the amounts so withheld or deducted.
(f) The obligation of the Company to make payments of Additional Amounts under this Section 6.05 shall survive any termination, defeasance or discharge of this Indenture.
Appears in 2 contracts
Sources: Indenture (MicroCloud Hologram Inc.), Indenture (MicroCloud Hologram Inc.)
Additional Amounts. (a) All payments of principal ofmade by a Payor under, and premium (if any) and interest on or with respect to, the Notes or under the a Subsidiary Guarantees and JV Subsidiary Guarantees Guarantee will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxes, duties, levies, imposts, assessments or other governmental charges of whatever nature (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) unless the Payor is required to withhold or deduct such Taxes by law or by the official interpretation or administration thereof. If the Payor is required to withhold or deduct any amount for, or on account of, Taxes imposed or levied by or within any jurisdiction in which on behalf of (i) Bermuda, the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (Netherlands and Curaçao or any political subdivision or taxing governmental authority of any thereof or therein having the power to tax, (ii) any jurisdiction from or through which payment on the Notes or the Subsidiary Guarantee is made, or any political subdivision or governmental authority thereof or therein)therein having the power to tax, includingor (iii) any other jurisdiction in which a Payor is organized or otherwise considered to be a resident for tax purposes, without limitation, or any political subdivision or governmental authority thereof or therein having the PRC power to tax (each, as applicable, any of the aforementioned being a “Relevant Taxing Jurisdiction”), ) from any payment made under or with respect to the Notes or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredSubsidiary Guarantee, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Payor will pay such additional amounts (“Additional Amounts”) as will result in receipt by may be necessary so that the Holder of each Note of such amounts as would have been net amount received by such Holder had no each holder of Notes (including 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 requiredrequired to be withheld or deducted; provided, except however, that no the foregoing obligation to pay Additional Amounts shall be payabledoes not apply to:
(i) for or on account of:
(A1) any tax, duty, assessment or other governmental charge Taxes that would not have been so imposed but for:
(1) for the existence of any present or former connection between the Holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guaranteerelevant holder, including, without limitation, such Holder or beneficial owner relevant holder being or having been a national, domiciliary 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 thereintherein (or between a fiduciary, settler, 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 Relevant Taxing Jurisdiction other than a connection resulting from the mere ownership or holding of such Note or enforcement of rights thereunder or under the Subsidiary Guarantee or the receipt of payments in respect thereof;
(2) any Taxes that would not have been so imposed if the presentation holder had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such Note declaration of non-residence or other claim or filing for exemption is required by the applicable law of the Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the Relevant Taxing Jurisdiction, the relevant holder at that time has been notified (in cases accordance with the procedures set forth in which Section 13.02 of the Indenture) by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made);
(3) any Note presented for payment (where presentation is required) more than 30 days after the later of relevant payment is first made available for payment to the date on which holder (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);
(4) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premiumor interest, if any, and interest on, such Note became due and payable pursuant to on the terms thereof Notes or was made or duly provided for, except to under the extent that the Holder thereof would have been entitled to such Additional Amounts if it had presented such Note for payment on any date within such 30-day periodSubsidiary Guarantee;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B5) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C6) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) imposed on a payment to an individual and interest required to be made pursuant to the European Union Directive on the Notes or from payments under taxation of savings income (the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D“Directive”) any tax, assessment, withholding or deduction required which was adopted by sections 1471 through 1474 the ECOFIN Council of the Internal Revenue Code European Union (the Council of 1986EU finance and economic ministers) on June 3, as amended (“FATCA”), 2003 or any current law implementing or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAcomplying with, or any agreement with introduced in order to conform to, the U.S. Internal Revenue Service under FATCADirective; or
(E7) any combination Taxes which could have been avoided by the presentation (where presentation is required) of taxesthe relevant Note to another Paying Agent in a member state of the European Union. Such Additional Amounts will also not be payable where, duties, assessments or other governmental charges referred to in had the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in Note been the income under holder of the laws of a Relevant Jurisdiction or the jurisdiction through which payments are madeNote, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who it would not have been entitled to such payment of Additional Amounts had by reason of any of clauses (1) to (7) inclusive above. The Payor 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 Payor 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 copies to the holder(s) for whom such Taxes were deducted or withheld. The Payor will attach to each certified copy a certificate stating (x) that beneficiary, settlor, partner the amount of withholding Taxes evidenced by the certified copy was paid in connection with payments on the Notes and (y) the amount of such withholding Taxes paid per $1,000 principal amount of the Notes. Copies of such documentation will be available for inspection during ordinary business hours at the office of the Trustee by the holders of the Notes upon request. The foregoing obligations of this Section 4.11 will survive any termination or beneficial owner been discharge of this Indenture and will apply with appropriate changes to any jurisdiction in which any successor Person to a Payor is organized or any political subdivision or taxing authority or agency thereof or therein. Whenever in this Indenture or in the Holder thereof.
(b) Whenever Notes there is mentioned mentioned, in any context context, the payment of principal ofor interest, and any premium or interest onif any, the repurchase price in connection with a Fundamental Change, any cash Conversion Settlement Consideration or any other amount payable under or with respect to any Note or under any and the Subsidiary Guarantee or JV Subsidiary GuaranteeGuarantees, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant hereto.
Appears in 2 contracts
Sources: Senior Convertible Notes Indenture (Central European Media Enterprises LTD), Indenture (CME Media Enterprises B.V.)
Additional Amounts. (a) All Any and all payments of principal ofmade by the Company to the Holders, and premium (if any) and interest on under or with respect to the Notes or under the Subsidiary Guarantees and JV 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 taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges of whatever nature charge (including any interest or penalties with respect thereto) imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (on behalf of Mexico or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC by any authority or agency therein or thereof having power to tax (each, as applicable, a hereinafter “Relevant JurisdictionMexican Withholding Taxes”), or any jurisdiction through which payments are made, unless such the withholding or deduction of such Mexican Withholding Taxes is required by law or by regulation or governmental policy having the force of lawadministration thereof. In the event that any such withholding Mexican Withholding Taxes are required to be so withheld or deduction is so requireddeducted, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Company will (i) pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note Holders of such amounts as would have been received by such Holder them had no such withholding or deduction been required, except that (ii) deduct or withhold such Mexican Withholding Taxes and (iii) remit the full amount so deducted or withheld to the relevant taxing or other authority. Any payment of Additional Amounts will be treated, for Mexican tax purposes, as additional interest. Notwithstanding the foregoing, no such Additional Amounts shall be payable:
(i) payable for or on account of:
(Aa) any tax, duty, assessment or other governmental charge that Mexican Withholding Taxes which would not have been imposed or levied on a Holder but for:
(1) for the existence of any present or former connection between the Holder or beneficial owner of such Note the Notes and the Relevant Jurisdiction Mexico or the jurisdiction through which payments are made, other than merely holding such Note any political subdivision or the receipt of payments thereunder territory or under a Subsidiary Guarantee possession thereof or JV Subsidiary Guaranteearea subject to its jurisdiction, including, without limitation, such Holder or beneficial owner (i) being or having been a national, domiciliary citizen or resident of such Relevant Jurisdiction thereof, (ii) maintaining or treated as a resident thereof having maintained an office, permanent establishment, fixed base or branch therein, or (iii) being or having been physically present or engaged in a trade or business therein therein, except for a connection solely arising from the mere ownership of, or having receipt of payment under, such Note or having had a permanent establishment thereinthe exercise or enforcement of rights under this Indenture;
(2b) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal ofexcept as otherwise provided, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, salesales, transfer, or personal property or similar tax, assessment or other governmental charge;
(Cc) any taxMexican Withholding Taxes that are imposed or levied by reason of the failure by the Holder or beneficial owner of such Note to comply with any certification, assessment identification, information, documentation, declaration or other governmental charge that reporting requirement which is payable otherwise than required or imposed by withholding a statute, treaty, regulation, general rule or deduction from payments of principaladministrative practice as a precondition to exemption from, premium (if any) and interest on or reduction in the Notes or from payments under rate of, the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessmentimposition, withholding or deduction required by sections 1471 through 1474 of any Mexican Withholding Taxes; provided that at least 60 days prior to (i) the first payment date with respect to which the Company shall apply this clause (c) and, (ii) in the event of a change in such certification, identification, information, documentation, declaration or other reporting requirement, the first payment date subsequent to such change, the Company shall have notified the Trustee, in writing, that the Holders or beneficial owners of the Internal Revenue Code Notes will be required to provide such certification, identification, information or documentation, declaration or other reporting;
(d) any Mexican Withholding Taxes that are imposed or levied by reason of 1986the failure by the Holder or beneficial owner of such Note to timely comply (subject to the conditions set forth below) with a written request by or on behalf of the Company to provide information, as amended documentation or other evidence concerning the nationality, residence, identity, or registration with the Ministry of Finance and Public Credit of the Holder or beneficial owner of such Note that is necessary from time to time to determine the appropriate rate of deduction or withholding of Mexican Withholding Taxes applicable to such Holder or beneficial owner; provided that at least 60 days prior to the first payment date with respect to which the Company shall apply this clause (“FATCA”d), the Company shall have notified the Trustee, in writing, that such Holders or beneficial owners of the Notes will be required to provide such information, documentation or other evidence;
(e) the presentation of such Note (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 to the extent that the Holder or the beneficial owner of such Note would have been entitled to Additional Amounts in respect of such Mexican Withholding Taxes on presenting such Note for payment on any current date during such 30-day period;
(f) any Mexican Withholding Taxes that are payable only by a method other than withholding or future Treasury Regulations deduction; or
(g) any combination of item (a), (b), (c), (d), (e), or rulings promulgated thereunder(f) above. Notwithstanding the foregoing, the limitations on the Company’s obligation to pay Additional Amounts set forth in clauses (c) and (d) above shall not apply if the provision of the certification, identification, information, documentation, declaration or other evidence described in such clauses (c) and (d) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note (taking into account any relevant differences between United States and Mexican law, regulation or administrative practice) than comparable information or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between applicable reporting requirements imposed or provided for under United States federal income tax law (including the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.States-Mexico
Appears in 2 contracts
Sources: Indenture (Kansas City Southern De Mexico, S.A. De C.V.), Indenture (Kansas City Southern)
Additional Amounts. (a) All payments and deliveries made by, or on behalf of, the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal of(including, if applicable, the Fundamental Change Repurchase Price), premium, if any, payments of interest, if any, and premium deliveries of ADSs or any other consideration due on conversion of a Note (if anytogether with payments of cash for any Fractional ADS or other consideration) and interest on upon conversion of the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will Notes, shall be made without withholding withholding, deduction or deduction reduction for any other collection at source for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied (including any penalties and interest related thereto) (“applicable taxes”) by or within any jurisdiction in which the CompanyCompany or any successor to the Company is, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is for tax purposes, incorporated, organized or resident for tax purposes or doing business (each, as applicable, a “Relevant Taxing Jurisdiction”) or through which payment is made or deemed made (together with each Relevant Taxing Jurisdiction, a “Relevant Jurisdiction,” and in each case, any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, ) unless such withholding withholding, deduction or deduction reduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding withholding, deduction or deduction reduction is so required, the Company, a Surviving Person Company or any successor to the applicable Subsidiary Guarantor Company shall pay or JV Subsidiary Guarantor, as the case may be, will pay deliver to each Holder such additional amounts of cash, ADSs or other consideration, as applicable (“Additional Amounts”) as will result in receipt may be necessary to ensure that the net amount received by the Holder beneficial owner of each Note of the Notes after such withholding, deduction or reduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts as that would have been received by such Holder beneficial owner had no such withholding withholding, deduction or deduction reduction been required, except ; provided that no Additional Amounts shall be payable:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge applicable taxes that would not have been imposed but for:
(1) the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, other than merely acquiring or holding such Note, receiving ADSs (together with the payment of cash for any Fractional ADS) or other consideration upon conversion of such Note or the receipt of payments thereunder or under a Subsidiary Guarantee the exercise or JV Subsidiary Guaranteeenforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premiumof (including the Fundamental Change Repurchase Price, if anyapplicable, and any premium payable hereunder) and interest on, such Note or the delivery of ADSs (together with payment of cash for any Fractional ADS) upon conversion of such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely written request from the Company or any successor of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder, to the extent such Holder or beneficial owner is legally entitled, to provide information certification, information, documents or other evidence concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any Relevant Jurisdiction declaration or the jurisdiction through which payments are madesatisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required under by statute, regulation or administrative practice of the tax laws of such jurisdiction Relevant Jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such HolderHolder or beneficial owner; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment applicable tax or other governmental chargeany excise or similar taxes imposed with respect to a transfer;
(C) any tax, assessment or other governmental charge applicable tax that is payable otherwise than by withholding withholding, deduction or deduction reduction for any other collection at source from payments of principal, premium (if any) and interest on or deliveries under or with respect to the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any)Notes;
(D) any tax, assessment, withholding applicable tax required to be withheld or deduction required by sections deducted under Sections 1471 through to 1474 of the Internal Revenue Code (or any amended or successor versions of 1986, as amended such Sections) (“FATCA”), any current regulations or future Treasury Regulations or rulings promulgated other official guidance thereunder, any intergovernmental agreement or agreement pursuant to Section 1471(b)(1) of the Code entered into in connection with FATCA, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any FATCA or an intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCAagreement; or
(E) any combination of taxes, duties, assessments or other governmental charges applicable taxes referred to in the preceding clauses (A), (B), (C) and or (D); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and any premium payable hereunder), and interest on, such Note or the delivery of ADSs (together with payment of cash for any Fractional ADS) upon conversion of such Note to a Holder, if the Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any that payment to the extent that such payment would be required to be included in the income under the laws of a the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a partner or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner partner, member or beneficial owner been the Holder thereof.
(b) Whenever there If the Company or its successor becomes obligated to pay Additional Amounts with respect to any payment or delivery under or with respect to the Notes, the Company or its successor shall deliver to the Trustee and the Paying Agent, if other than the Trustee, on a date that is mentioned at least 30 days prior to the date of that payment or delivery (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Company or its successor shall notify the Trustee and the Paying Agent promptly thereafter) an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officers’ Certificate must also set forth any other information reasonably necessary to enable the Paying Agent or the Conversion Agent, as the case may be, to pay Additional Amounts to Holders on the relevant payment date. The Trustee and the Paying Agent shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. The Company or its successor shall provide the Trustee and the Paying Agent with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts.
(c) The Company or its successor shall make all withholdings and deductions required by law and shall remit the full amount deducted or withheld to the relevant tax authority in accordance with applicable law. Upon request, the Company or its successor shall provide to the Trustee an official receipt or, if official receipts are not obtainable, an Officers’ Certificate evidencing the payment of any applicable taxes so deducted or withheld. Copies of those receipts or other documentation, as the case may be, shall be made available by the Trustee to the Holders of the Notes upon written request.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payment of cash for any Fractional ADS) or other consideration upon conversion of any Note or the payment of principal ofof (including the Fundamental Change Repurchase Price, if applicable) and any premium or interest oninterest, if any, on any Note or under any Subsidiary Guarantee or JV Subsidiary Guaranteeother amount payable with respect to such Note, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in with respect thereofto that amount pursuant to this Section 4.07.
(e) Notwithstanding any other provisions, the Company or its successor, the Trustee and the Paying Agent shall be entitled to make any withholding or deduction pursuant to FATCA.
(f) If the Company or its successor is required to make any deduction or withholding from any payments or deliveries with respect to the Notes, it will deliver to the Trustee official tax receipts evidencing the remittance to the relevant tax authorities of the amounts so withheld or deducted.
(g) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 2 contracts
Sources: Indenture (NIO Inc.), Indenture (NIO Inc.)
Additional Amounts. (a) All payments made under, or with respect to, the Senior Notes and the Guarantee of principal the Senior Notes will be made free and clear of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, for or on account of, any present or future taxesTaxes, dutiesunless the Issuer or any Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If the Issuer or any Guarantor is required to withhold or deduct any amount for, assessments or governmental charges of whatever nature on account of, Taxes imposed by the United Kingdom or levied by or within any other jurisdiction in which the Company, a Surviving Person Issuer or an applicable Subsidiary Guarantor or JV Subsidiary any Guarantor is organized or resident for tax Tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC any Taxing Authority therein (each, as applicable, a “Relevant Jurisdiction”"RELEVANT TAXING JURISDICTION"), from any payment made under or any jurisdiction through which payments are made, unless such withholding with respect to the Senior Notes or deduction is required by law or by regulation or governmental policy having the force Guarantee of law. In the event that any such withholding or deduction is so requiredSenior Notes, the Company, a Surviving Person Issuer or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“"ADDITIONAL AMOUNTS") as may be necessary so that the net amount received by each Holder (including Additional Amounts”) as after such withholding or deduction will result in receipt by equal the amount the Holder of each Note of such amounts as would have been received by such Holder had no such withholding or deduction been required; provided, except however, that no Additional Amounts shall will be payablepayable with respect to any Tax:
(i1) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but forimposed, payable or due:
(1a) but for the existence of any present or former connection between the Holder (or beneficial owner the Beneficial Owner of, or Person ultimately entitled to obtain an interest in, the Senior Notes or the Guarantee of such Note the Senior Notes) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a trade or business or maintaining a permanent establishment or fixed base in, or being physically present in, or having made an election, the effect of which is to subject the Holder to such Taxes in, in each case whether by himself or through an agent, of the Relevant Taxing Jurisdiction) other than the mere holding of the Senior Notes or the jurisdiction through which payments are made, other than merely holding such Note Guarantee of the Senior Notes or enforcement of rights thereunder or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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 thereinrespect thereof;
(2b) if the presentation of such Note the Senior Notes (in cases in which where presentation is required) more than for payment had occurred within 30 days after the later of the date on which the such payment of the principal of, premium, if any, and interest on, such Note became was due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later except to the extent that the Holder thereof of such Senior Notes would have been entitled to such Additional Amounts if it had presented on presenting such Note Senior Notes for payment on the last day of such period of 30 days; or
(2) on a payment to an individual where such withholding or deduction is required to be made pursuant to any date within European Union Directive on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with or introduced in order to conform to, such 30-day period;Directive; or
(3) if the failure Holder of the Holder or beneficial owner Senior Note would have been able to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning avoid such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as by presenting the Senior Note to which Additional Amounts would have otherwise been payable to such Holderanother Paying Agent in a money-center in a member state of the European Union; or
(4) where the presentation payment of such Note (in cases in which presentation Additional Amounts is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than prevented by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A1), (B2) or (3). With respect to paragraph (3) above, (C) and (D); or
(ii) the Issuer shall undertake to ensure that it maintains a Holder Paying Agent in a European Union member state that is a fiduciary, partnership will not be obliged to withhold or person other than deduct tax pursuant to the sole beneficial owner of European Union Directive. If the Issuer or any Guarantor will be obliged to pay Additional Amounts with respect to any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciarySenior Notes or its Guarantee of the Senior Notes, the Issuer or a member such Guarantor will deliver to the Trustee at least 30 days prior to the date of that partnership or a beneficial owner who would not have been entitled payment (unless the obligation to such pay Additional Amounts had arises after the 30th day prior to that beneficiarypayment date, settlor, partner in which case the Issuer or beneficial owner been such Guarantor shall notify the Holder thereof.
(bTrustee promptly thereafter) Whenever there is mentioned an Officers' Certificate stating the fact that Additional Amounts will be payable and the amount so payable. The Officers' Certificate shall also set forth any other information necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date. The Issuer or such Guarantor will make all required withholdings and deductions and will remit the full amount deducted or withheld to the relevant authority in any context accordance with applicable law. The Issuer and such Guarantor will use their respective reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority. The Issuer or the relevant Guarantor will furnish to the Trustee, within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing payment by the Issuer or such Guarantor, or if, notwithstanding the Issuer's and such Guarantor's efforts to obtain receipts, receipts are not obtained, other evidence of payments by the Issuer or such Guarantor. The Issuer or any Guarantor will pay any stamp duty reserve tax, stamp duty, court or documentary taxes, or any other excise or property taxes, charges or similar levies or Taxes which arise from the initial execution, delivery or registration of the Senior Notes and the enforcement of the Senior Notes following the occurrence of any Event of Default. Whenever in this Indenture or in any Senior Notes there is mentioned, in any context, the payment of amounts based upon the principal ofamount of such Senior Notes or of principal, and interest, premium, if any, or of any premium other amount payable under, or interest onwith respect to, any Note or under any Subsidiary Guarantee or JV Subsidiary Guaranteethe Senior Notes, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The obligations described under this Section 4.37 shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or Taxing Authority or agency thereof or therein.
Appears in 2 contracts
Sources: Indenture (Marconi Corp PLC), Indenture (Marconi Corp PLC)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on the Notes made by any Foreign Guarantor under or under the Subsidiary Guarantees and JV Subsidiary Guarantees will with respect to any Note Guarantee shall be made free and clear of and without withholding or deduction for, or on account of, any present or future taxestax, dutiesduty, assessments levy, assessment or other governmental charges of whatever nature imposed charge, including any related interest, penalties or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for additions to tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant JurisdictionTaxes”), or any jurisdiction through which payments are made, unless such withholding or deduction of such Taxes is then required by law or by regulation or governmental policy having the force of law. In the event that If any such deduction or withholding for, or deduction on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction in which any Foreign Guarantor is so requiredincorporated or organized, engaged in business for tax purposes or resident for tax purposes, or any political subdivision thereof or therein or (2) any jurisdiction from or through which payment is made by or on behalf of any Foreign Guarantor, or any political subdivision thereof or therein (each, a “Relevant Tax Jurisdiction”) will at any time be required to be made in respect of any payments made by any Foreign Guarantor under or with respect to any Guarantee, including payments of principal, redemption price, interest or premium, the Company, a Surviving Person or the applicable Subsidiary relevant Foreign Guarantor or JV Subsidiary Guarantor, as the case may be, will shall pay such additional amounts (the “Additional Amounts”) as will result may be necessary in receipt order that the net amounts received in respect of such payments by each beneficial owner after such withholding or deduction by the Holder of each Note of applicable withholding agent (including any such withholding or deduction from such Additional Amounts) will equal the respective amounts as that would have been received by in respect of such Holder had no payments in the absence of such withholding or deduction been requireddeduction; provided, except however, that no Additional Amounts shall will be payablepayable with respect to:
(i) for or on account of:
(A1) any taxTaxes, duty, assessment or other governmental charge that to the extent such Taxes would not have been imposed but for:
(1) for the existence of any actual or deemed present or former connection between the Holder or the beneficial owner of such Note the Notes and the Relevant Tax Jurisdiction or the (including being a resident of such jurisdiction through which payments are madefor Tax purposes), other than merely holding any connection arising solely from the ownership or disposition of such Note, the enforcement of such Note or any Note Guarantee or the receipt of any payments thereunder under or under with respect to such Note or a Subsidiary Guarantee or JV Subsidiary Note Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date any Tax imposed on which the or with respect to any payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with by a timely request of the Company, a Surviving Person, any Subsidiary Foreign Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning if such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of any such payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who Taxes would not have been imposed on such payment had the beneficiary, partner or other beneficial owner directly held the Note, provided that there is no material cost or commercial or legal restriction to transferring the notes to the beneficiary, partner or other beneficial owner;
(3) any Taxes, to the extent such Taxes were imposed as a result of the presentation (where presentation is required in order to receive payment) of a Note for payment more than 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 such Additional Amounts had the Note been presented on the last day of such 30 day period);
(4) any estate, inheritance, gift, sales, transfer or similar Taxes;
(5) any Taxes withheld, deducted or imposed on a payment to an individual that beneficiaryare required to be made pursuant to European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26 and 27, settlor2000 on the taxation of savings income, partner or any law implementing or complying with or introduced in order to conform to, such directive;
(6) any U.S. federal withholding taxes;
(7) any Taxes payable other than by deduction or withholding from payments under or with respect to a Note or any Note Guarantee of such Note;
(8) any Taxes, to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner been of Notes, to comply with any timely reasonable written request of any Foreign Guarantor addressed to the Holder thereofor beneficial owner to satisfy any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Tax Jurisdiction (including without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Tax Jurisdiction), but in each case only to the extent the Holder or beneficial owner is legally eligible to provide such certification or documentation;
(9) any combination of items (1) through (8) above.
(b) Whenever there In addition to the foregoing, each Foreign Guarantor shall also pay and indemnify the Holder for any present or future stamp, issue, registration, court or documentary Taxes, or any other excise or property Taxes, duties or similar levies (including related penalties, interest and additions to Tax) which are levied by any Relevant Tax Jurisdiction (for the avoidance of doubt, excluding the United States, any state thereof or the District of Columbia or any political subdivision thereof or therein) on the execution, delivery, issuance, or registration of this Indenture, the Notes, any Note Guarantee or any other document or instrument referred to therein, or the receipt of any payments under or with respect to, or enforcement of, this Indenture, the Notes, any Note Guarantee or any other such document or instrument. No Guarantor will, however, pay any such amounts that are imposed on or result from a sale or other transfer or disposition of a note by a Holder or a beneficial owner and that would not have been imposed or resulted but for the existence of any actual or deemed present or former connection between such Holder or beneficial owner of the Note and the Relevant Tax Jurisdiction, other than any connection arising solely from the ownership or disposition of such Note, the enforcement of such Note or any Note Guarantee or the receipt of any payments under or with respect to such Note or a Note Guarantee.
(c) If any Foreign Guarantor becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guarantee, such Foreign Guarantor shall deliver to the Trustee on a date that is mentioned at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises less than 30 days prior to that payment date, in which case the Foreign 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 Officer’s Certificate must also set forth any context other information reasonably necessary to enable the paying agent 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 relevant Foreign Guarantor shall make all withholdings and deductions required by law to be withheld or deducted by it and shall remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The relevant Foreign Guarantor shall use its reasonable efforts to obtain Tax receipts from each relevant Tax authority evidencing the payment of principal ofany Taxes so deducted or withheld. The relevant Foreign Guarantor shall furnish to the Trustee (or to a Holder or beneficial owner upon written request), and within a reasonable time after the date the payment of any premium Taxes so deducted or interest onwithheld is made, certified copies of Tax receipts evidencing payment by or such Foreign Guarantor, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments by such entity.
(e) Whenever in this Indenture there is referred to, in any Note context, the payment of principal, interest, premium, redemption price or under other amounts with respect to any Subsidiary Guarantee or JV Subsidiary GuaranteeNote, such mention reference shall be deemed to include the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The above obligations will survive any termination, defeasance or discharge of this Indenture, any transfer by a Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any successor Persons to any Foreign Guarantor and to any jurisdiction in which any successor Person to any Foreign Guarantor is incorporated or organized, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which payment is made by or on behalf of such Person on any Note, Note Guarantee, and any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (Kinetic Concepts Inc), Indenture (Kinetic Concepts Inc)
Additional Amounts. (a) All payments and deliveries made by, or on behalf of, the Company or any successor to the Company under or with respect to the Notes, including payments of principal of(including, if applicable, the Redemption Price, the Fundamental Change Repurchase Price and premium the Specified Repurchase Date Repurchase Price), payments of interest and payments of cash and/or deliveries of Class A Ordinary Shares (if anytogether with payments of cash for any fractional Class A Ordinary Shares) and interest on upon conversion of the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees Notes, will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the CompanyCompany or any successor to the Company is, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is for tax purposes, organized or resident for tax purposes or doing business (each, as applicable, a “Relevant Taxing Jurisdiction”) or from or through which payment is made or deemed made (together with each Relevant Taxing Jurisdiction, a “Relevant Jurisdiction,” and in each case, any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will Company shall pay to each Holder such additional amounts (“Additional Amounts”) as will result in receipt may be necessary to ensure that the net amount received by the Holder of each Note of Holders after such withholding or deduction (and after deducting any taxes on the Additional Amounts) will equal the amounts as that would have been received by such Holder Holders had no such withholding or deduction been required, except ; provided that no Additional Amounts shall will be payable:
(i) for or on account of:
(A1) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1A) the existence of any present or former connection between the Holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guaranteethereunder, including, without limitation, including such Holder or beneficial owner being or having been a national, domiciliary 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;
(2B) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal ofof (including the Redemption Price, premiumthe Specified Repurchase Date Repurchase Price and the Fundamental Change Repurchase Price, if any, applicable) and interest on, on such Note or the payment of cash and/or the delivery of Class A Ordinary Shares (together with payment of cash for any fractional Class A Ordinary Shares) upon conversion of such Note became due and payable or deliverable 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 date within such 30-day period;
(3C) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder Holder, to provide information certification, information, documents or other evidence concerning such Holder▇▇▇▇▇▇’s or its beneficial owner’s nationality, residence, identity or connection with the Relevant Jurisdiction, or to make any Relevant Jurisdiction declaration or the jurisdiction through which payments are madesatisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required under by statute, regulation or administrative practice of the tax laws of such jurisdiction Relevant Jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holderpayable; or
(4D) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, unless such Note could not have been presented for payment elsewhere;
(B2) [Reserved];
(3) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(C4) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on or deliveries under or with respect to the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any)Notes;
(D5) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAFATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E6) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A1), (B2), (C3), (4) and or (D5); or
(ii) with respect to any payment of the principal of (including the Redemption Price, the Specified Repurchase Date Repurchase Price and the Fundamental Change Repurchase Price, if applicable) and interest on such Note or the payment of cash and/or the delivery of Class A Ordinary Shares (together with payment of cash for any fractional Class A Ordinary Shares) upon conversion of such Note to a Holder, if the Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any that payment to the extent that such payment would be required to be included in the income under the laws of a the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a partner or a member of that partnership or a beneficial owner who owner, in each case, that would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner partner, member or beneficial owner been the Holder thereof. As a result of these provisions, there are circumstances in which taxes could be withheld or deducted, but Additional Amounts would not be payable with respect to Notes held for some or all beneficial owners of Notes.
(b) Whenever there is mentioned The Trustee and the Paying Agent shall also be entitled to make any withholding or deduction pursuant to an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to FATCA and any regulations or agreements thereunder or official interpretations thereof.
(c) Any reference in this Indenture or the Notes in any context to the payment of cash and/or the delivery of Class A Ordinary Shares (together with payments of cash for any fractional Class A Ordinary Shares), upon conversion of any Note or the payment of principal ofof (including the Redemption Price, the Specified Repurchase Date Repurchase Price and any premium or the Fundamental Change Repurchase Price, if applicable) and interest on, on any Note or under any Subsidiary Guarantee or JV Subsidiary Guaranteeother amount payable with respect to such Note, such mention reference shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect to that amount pursuant to this Section 4.10.
(d) If the Company or its successor is required to make any deduction or withholding from any payments or deliveries with respect to the Notes, it will deliver to the Trustee official tax receipts evidencing the remittance to the relevant tax authorities of the amounts so withheld or deducted or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Paying Agent to the Holders or beneficial owners of the Notes.
(e) The Trustee shall have no obligation to determine whether any Additional Amounts are payable under this Indenture or the amount thereof.
Appears in 2 contracts
Sources: Indenture (Bitdeer Technologies Group), Indenture (Bitdeer Technologies Group)
Additional Amounts. (a) All payments and deliveries made by, or on behalf of, the Company or any successor to the Company under or with respect to this Indenture and the Notes, including payments of principal of(including, if applicable, the Redemption Price, the Repurchase Price and premium the Fundamental Change Repurchase Price), payments of interest and payments of cash and/or deliveries of ADSs (if anytogether with payments of cash for any fractional ADS) and interest on upon conversion of the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees Notes, will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the CompanyCompany or any successor to the Company is, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is for tax purposes, organized or resident for tax purposes or doing business (each, as applicable, a “Relevant Taxing Jurisdiction”) or through which payment is made or deemed made (together with each Relevant Taxing Jurisdiction, a “Relevant Jurisdiction,” and in each case, any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person Company or any successor to the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will Company shall pay to each Holder such additional amounts (“Additional Amounts”) as will result in receipt may be necessary to ensure that the net amount received by the Holder of each Note of Holders after such withholding or deduction (and after deducting any taxes on the Additional Amounts) will equal the amounts as that would have been received by such Holder Holders had no such withholding or deduction been required, except ; provided that no Additional Amounts shall will be payable:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guaranteethereunder, including, without limitation, including such Holder or beneficial owner being or having been a national, domiciliary 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal ofof (including the Redemption Price, premiumthe Repurchase Price and the Fundamental Change Repurchase Price, if any, applicable) and interest on, on such Note or the payment of cash and/or the delivery of ADSs (together with payment of cash for any fractional ADS) upon conversion of such Note became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that unless the Holder thereof would have been entitled to such Additional Amounts if it had presented such Note for payment on any date within such the last day of the 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder Holder, to provide information certification, information, documents or other evidence concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with the Relevant Jurisdiction, or to make any Relevant Jurisdiction declaration or the jurisdiction through which payments are madesatisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required under by statute, regulation or administrative practice of the tax laws of such jurisdiction Relevant Jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holderpayable; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(C) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on or deliveries under or with respect to the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any)Notes;
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAFATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and or (D); or
(ii) with respect to any payment of the principal of (including the Redemption Price, the Repurchase Price and Fundamental Change Repurchase Price, if applicable) and interest on such Note or the payment of cash and/or the delivery of ADSs (together with payment of cash for any fractional ADS) upon conversion of such Note to a Holder, if the Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any that payment to the extent that such payment would be required to be included in the income under the laws of a the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a partner or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner partner, member or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned The Trustee and Paying Agent shall also be entitled to make any withholding or deduction pursuant to an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to FATCA and any regulations or agreements thereunder or official interpretations thereof.
(c) Any reference in this Indenture or the Notes in any context to the payment of cash and/or the delivery of ADSs (together with payments of cash for any fractional ADS), as applicable, upon conversion of any Note or the payment of principal ofof (including the Redemption Price, the Repurchase Price and any premium or the Fundamental Change Repurchase Price, if applicable) and interest on, on any Note or under any Subsidiary Guarantee or JV Subsidiary Guaranteeother amount payable with respect to such Note, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in with respect to that amount pursuant to this Section 4.07.
(d) If the Company or its successor is required to make any deduction or withholding from any payments or deliveries with respect to the Notes, it will deliver to the Trustee, the Paying Agent and the Holders official tax receipts evidencing the remittance to the relevant tax authorities of the amounts so withheld or deducted.
(e) The Trustee shall have no obligation to determine whether any Additional Amounts are payable under the Indenture or the amount thereof.
(f) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 2 contracts
Additional Amounts. (a) All payments and deliveries made by, or on behalf of, the Company or any Successor Company under or with respect to the Notes (including payment of the principal of, and premium (if anyor the Fundamental Change Repurchase Price for, or any interest on, any Note) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, any present or future taxesTaxes, duties, assessments unless such withholding or deduction is required by law or regulation or by governmental charges policy having the force of whatever nature law. If any Taxes imposed or levied by or within on behalf of any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein)) in which the Company or any Successor Company is or deemed to be, includingfor tax purposes, without limitationorganized or resident or doing business or through which payment or deliveries by, or on behalf of, the PRC Company or any Successor Company under or with respect to the Notes are made or deemed to be made (eacheach such jurisdiction, subdivision or authority, as applicable, a “Relevant Taxing Jurisdiction”)) are required to be withheld or deducted from any payments or deliveries made under or with respect to the Notes, or any jurisdiction through which payments are madethen, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredsubject to Section 15.02, the Company or such Successor Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may beapplicable, will pay to the Holder of each Note such additional amounts (the “Additional Amounts”) as will result in receipt may be necessary to ensure that the net amount received by the Holder of each Note beneficial owner of such Note after such withholding or deduction (and after withholding or deducting any Taxes on the Additional Amounts) will equal the amounts as that would have been received by such Holder beneficial owner had no such withholding or deduction been required; provided, except however, that no Additional Amounts shall will be payable:
(i) for or on the account of:
(A) of any tax, duty, assessment or other governmental charge Tax that would not have been imposed but for:
(1A) the existence of any present or former connection between the Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the relevant Holder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company or corporation) of such Note and the Relevant Taxing Jurisdiction or the jurisdiction through which payments are made, (other than merely holding or being a beneficial owner of such Note or the receipt or enforcement of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guaranteethereunder), including, without limitation, including such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Jurisdiction resident, or treated as a resident thereof resident, of, or being or having been physically present or engaged in a trade or business therein business, or having or having had a permanent establishment thereinestablishment, in, such Relevant Taxing Jurisdiction;
(2B) in cases where presentation of such Note is required to receive such payment or delivery, the presentation of such Note after a period of thirty (in cases in which presentation is required30) more than 30 days after the later of (x) the date on which the such payment of the principal of, premium, if any, and interest on, such Note or delivery became due and payable or deliverable, as applicable, pursuant to the terms thereof of this Indenture and (y) the date such payment or delivery was made or duly provided for, except except, in each case, to the extent that the such Holder thereof or beneficial owner would have been entitled to such Additional Amounts if it had presented such Note for payment on any date within or delivery, as applicable, at the end of such thirty (30-) day period;; or
(3C) the failure of the such Holder or beneficial owner to comply with a timely request of from the Company or the Successor Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder of the Note, to (x) provide information certification, information, documentation or other evidence concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with such Relevant Taxing Jurisdiction; or (y) make any Relevant Jurisdiction declaration or the jurisdiction through which payments are madesatisfy any other reporting requirement relating to such matters, in each case of clause (x) and clause (y), if and to the extent that such Holder or beneficial owner is legally entitled without material burden to comply with such request and due and timely compliance with such request is required under the tax laws by statute, regulation or administrative practice of such jurisdiction Relevant Taxing Jurisdiction in order to reduce or eliminate any such withholding or deduction as to which Additional Amounts otherwise would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction Holder or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewherebeneficial owner;
(Bii) for or on the account of any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental chargeTax;
(Ciii) for or on the account of any tax, assessment or other governmental charge tax that is payable otherwise other than by withholding or deduction from payments of principal, premium (if any) and interest on or deliveries under or with respect to the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any)Notes;
(Div) for or on the account of any tax, assessment, withholding or deduction required by (x) sections 1471 through 1474 of the Internal Revenue Code or any amended or successor versions of 1986such Sections, as amended and any current or future U.S. Treasury Regulations or rulings promulgated thereunder (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, ; (y) any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, FATCA or any intergovernmental inter-governmental agreement between the United States and any other non-U.S. jurisdiction to implement FATCAFATCA or any law, regulation or other official guidance in such other jurisdiction to give effect to such agreement; or (z) any agreement with the U.S. Internal Revenue Service under FATCA; orpursuant to Section 1471(b)(1) of the Internal Revenue Code;
(Ev) any combination tax imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of taxesa Holder or beneficial owner of such Note who would have been able to avoid such tax, dutiesassessment or governmental charge by presenting the relevant Note to, assessments or other governmental charges referred to in the preceding clauses (A)otherwise accepting payment from, (B), (C) and (D); oranother paying agent;
(iivi) with respect to any payment made by, or on behalf of, the Company or any Successor Company under or with respect to the Notes (including payment of the principal of, or the Fundamental Change Repurchase Price for, or any interest on, any Note) to a such Holder that if such Holder is a fiduciary, partnership or person other than the sole beneficial owner of any payment such payment, to the extent that such payment would be required to be included in the income required, under the laws of a such Relevant Jurisdiction or the jurisdiction through which payments are madeTaxing Jurisdiction, to be included for tax purposes, purposes in the income of a beneficiary or settlor with respect to the such fiduciary, a partner or member of such partnership, or a member of that partnership or a beneficial owner owner, who would not have been entitled to such Additional Amounts had that such beneficiary, settlor, partner partner, member or beneficial owner been the Holder thereof; or
(vii) for or on the account of any combination of taxes referred to in the preceding clauses (i) through (vi), inclusive, above. The Trustee and the Paying Agent will be entitled to make any withholding or deduction pursuant to an agreement described in Section 1471(b) of the Internal Revenue Code or otherwise imposed pursuant to FATCA and any regulations or agreements thereunder or official interpretation thereof or otherwise as required by applicable law. In addition to the foregoing, the Company will also pay and indemnify the Trustee, each Holder and each beneficial owner of any Note for any present or future stamp, issue, registration, value added, court or documentary taxes, or any other excise or property taxes, charges or similar levies or taxes (including penalties and interest thereto) which are levied by any Relevant Taxing Jurisdiction (and in the case of enforcement, any jurisdiction) on the execution, delivery, registration or enforcement of such Note, this Indenture, or any other document or instrument referred to therein (other than, in each case, in connection with a transfer of Notes after the initial sale by the Company of the Notes). The Company and any Successor Company will make all withholdings and deductions required by law on payments under or in respect of the Notes and will remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law.
(b) Whenever there For the avoidance of doubt, if any Note is mentioned called for a Tax Redemption and the Tax Redemption Date is after a Regular Record Date and on or before the next Interest Payment Date, then the Company’s obligation to pay Additional Amounts will apply to the interest payment due on such Note on such Interest Payment Date unless such Note is subject to a Tax Redemption Opt-Out Election Notice.
(c) If the Company or any Successor Company is required to make any deduction or withholding from any payments or deliveries with respect to the Notes, then (i) the Company or the Successor Company, as applicable, will deliver to the Trustee official tax receipts (or, if, after expending reasonable efforts, the Company or the Successor Company, as applicable, is unable to obtain such receipts, other evidence of payments) evidencing the remittance to the relevant tax authorities of the amounts so withheld or deducted, and (ii) the Company will make copies of such receipts or evidence, as applicable, available to the Holders upon request.
(d) All references in this Indenture or the Notes to any context payment on, or delivery with respect to, the Notes (including payment of the principal of, and or the Fundamental Change Repurchase Price for, or any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeNote) will, such mention shall to the extent that Additional Amounts are payable in respect thereof, be deemed to include the payment of such Additional Amounts provided for Amounts.
(e) The obligations set forth in this Indenture to the extent thatSection 4.13 will survive any transfer of Notes by a Holder (or, in such contextthe case of a Global Note, Additional Amounts are, were or would be payable in respect thereofa holder of a beneficial interest therein).
Appears in 2 contracts
Sources: Indenture (Selina Hospitality PLC), Subscription Agreement (BOA Acquisition Corp.)
Additional Amounts. (a) All payments Unless otherwise specified in any Board Resolution of principal ofthe Company or the Guarantor establishing the terms of Securities of a series or the Guarantee relating thereto in accordance with Section 2.01, and premium (if any) and interest on the Notes any deduction or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, for any present or future taxes, duties, assessments taxes or other governmental charges of whatever nature imposed or levied by or within any the jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein)) in which the Guarantor is resident, including, without limitationshall 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 the Guarantee, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, 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 or other governmental charge, is not resident in such jurisdiction, after such deduction or withholding, shall be not less than the amounts specified in such Security to which such Holder is entitled (“Additional Amounts”) as will result in receipt by ); provided, however, that the Holder Guarantor shall not be required to make any payment of each Note of such amounts as would have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(i) for or on account of:
(Aa) any tax, duty, assessment such tax or other governmental charge that imposed by the United States or any political subdivision or taxing authority thereof or therein;
(b) any such tax or governmental charge which would not have been imposed but for:
(1) for the existence of any present or former connection between the such Holder (or beneficial owner between a fiduciary, settler, beneficiary, member or shareholder of, or possessor of a power over, such Note Holder, if such Holder is an estate, trust, partnership or corporation) and the Relevant Jurisdiction taxing jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note any political subdivision or the receipt of payments thereunder territory or under a Subsidiary Guarantee possession thereof or JV Subsidiary Guaranteearea subject to its jurisdiction, including, without limitation, such Holder (or beneficial owner such fiduciary, settler, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Sources: Indenture (Shell Finance US Inc.), Indenture (Shell International Finance B.V.)
Additional Amounts. (a) All payments of principal of, and premium (premium, if any) , and interest on the Notes or and all payments under the Subsidiary Guarantees and JV Subsidiary Note Guarantees will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever (“Taxes”) nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person Company or an any applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, ) or any jurisdiction from or through which payment is made by or on behalf of the PRC Company or any Subsidiary Guarantor (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredevent, the Company, a Surviving Person Company or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder holder had no such withholding or deduction been required, except provided that no Additional Amounts shall will be payable:
(i) payable for or on account of:
(A1) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1A) the existence of any present or former connection between the Holder or beneficial owner of such Note or Note Guarantee, as the case may be, and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder holder or beneficial owner being or having been a national, domiciliary 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 Note or the receipt of payments thereunder or under the Note Guarantee;
(2B) the presentation of such Note (in cases in which where presentation is required) more than 30 thirty (30) days after the later of the date on which the payment of the principal of, premium, if any, and or interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that the Holder holder thereof would have been entitled to such Additional Amounts if it had presented such Note for payment on any date within such 30-day period;
(3C) the failure of the Holder holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor Company or any JV Subsidiary Guarantor addressed to the Holder holder or beneficial owner, as the case may be, to provide information concerning such Holderholder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce would have reduced or eliminate eliminated any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holderholder; or
(4D) the presentation of such Note (in cases in which where presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, unless such Note could not have been presented for payment elsewhere;
(B2) any estate, inheritance, gift, sale, transfer, excise or personal property or similar tax, assessment or other governmental charge;
(C3) any withholding or deduction in respect of any tax, duty, assessment or other governmental charge that is payable otherwise than by where such withholding or deduction from payments is imposed or levied on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of principalthe ECOFIN Council meeting of November 26-27, premium (if any) and interest 2000 on the Notes taxation of savings income or from payments under the Subsidiary Guarantees any law implementing or JV Subsidiary Guarantees (if any)complying with, or introduced in order to conform to, such Directives;
(D4) any tax, assessmentduty, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation assessment or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between governmental charge which is payable other than (i) by deduction or withholding from payments of principal of or interest on the United States and any other jurisdiction to implement FATCANote or payments under the Note Guarantees, or any agreement with (ii) by direct payment by the U.S. Internal Revenue Service under FATCACompany or applicable Subsidiary Guarantor in respect of claims made against the Company or the applicable Subsidiary Guarantor; or
(E5) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A1), (B2), (C3) and (D4); or
(iib) with respect to a Holder that any payment of the principal of, or premium, if any, or interest on, such Note or any payment under any Note Guarantee to such holder, if the holder is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner partner, or beneficial owner been the Holder holder thereof. In addition to the foregoing, the Company and the Subsidiary Guarantors will also pay and indemnify the holder of a Note for any present or future stamp, issue, registration, court or documentary taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and other reasonable expenses related thereto) which are levied by any Relevant Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note Guarantee or any other document or instrument referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Note Guarantee.
(bc) Whenever there is mentioned in any context the payment of principal of, and any premium or interest oninterest, on any Note or under any Subsidiary Guarantee or JV Subsidiary Note Guarantee, such mention shall will be deemed to include payment of Additional Amounts provided for in this the Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Sources: Indenture (STUDIO CITY INTERNATIONAL HOLDINGS LTD), Indenture (Melco Crown Entertainment LTD)
Additional Amounts. (a) All The Issuer and the Guarantors are required to make all payments of principal of, and premium (if any) and interest under this Indenture or on the Notes or under the Subsidiary Guarantees free and JV Subsidiary Guarantees will be made clear of and without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of the government of the Netherlands, the United States or, in each case, any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which the CompanyIssuer (or its successor), a Surviving Person the Company (or an applicable Subsidiary Guarantor its successor) or JV any Subsidiary Guarantor is organized or is otherwise resident for tax purposes (or any political subdivision jurisdiction from or taxing authority thereof or therein), including, without limitation, the PRC through which payment is made (each, as applicable, each a “Relevant Taxing Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredIssuer, the Company, a Surviving Person Company or the applicable Subsidiary Guarantor or JV such Subsidiary Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Issuer, the Company or any Subsidiary Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, the Issuer, the Company or such Guarantor will be required to pay such additional amounts (“Additional Amounts”) as will result in receipt by may be necessary so that the Holder of each Note of such amounts as would have been net amount received by such any Holder had no or beneficial owner (including 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 requiredwithheld or deducted; provided, except however, that no the foregoing obligation to pay Additional Amounts shall be payabledoes not apply to:
(i) for or on account of:
(A1) any tax, duty, assessment or other governmental charge Taxes that would not have been so imposed but for:
(1) for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of such Note and power over, the Relevant Jurisdiction or relevant Holder, if the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such relevant Holder or beneficial owner being is an estate, nominee, trust or having been a national, domiciliary or resident corporation) and the Relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership or holding outside of the Relevant Taxing 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 thereinof such Note);
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent any Taxes that the Holder thereof would not have been entitled to such Additional Amounts if it had presented such Note imposed, withheld or deducted but for payment on any date within such 30-day period;
(3) the failure of by the Holder or the beneficial owner of the Note to comply with a timely written request of the CompanyIssuer, a Surviving Person, any Subsidiary Guarantor the Company or any JV Subsidiary Guarantor addressed to the Holder or the beneficial owner, after reasonable notice at least 30 days before any such Taxes would be imposed, withheld or deducted, to provide information certification, information, documents or other evidence concerning such Holder’s or its beneficial owner’s the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of the Holder or such beneficial owners or to make any declaration or similar claim or satisfy any certification, identification, information or other reporting requirement relating to such matters, required by applicable law, regulation, treaty, any (multilateral) exchange of information regime, or administrative practice of, or entered into by, the Relevant Taxing Jurisdiction as a precondition to exemption from all or the jurisdiction through which payments part of such Tax;
(3) any Taxes that are made, if and payable otherwise than by deduction or withholding from a payment under or with respect to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce Notes or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; orNotes Guarantee;
(4) any Taxes imposed or withheld pursuant to the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhereDutch Withholding Tax ▇▇▇ ▇▇▇▇;
(B5) any estate, inheritance, gift, salevalue added, sales, transfer, personal property or similar tax, assessment or other governmental chargeTaxes;
(C6) any taxTaxes imposed in connection with a Note presented for payment (where presentation is permitted or required 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, assessment or other governmental charge otherwise accepting payment from, another paying agent;
(7) any Taxes which would not have been imposed if the Holder had presented the Note for payment (where presentation is permitted or required for payment) within 30 days after the relevant payment was first made available for payment to the Holder (except for Additional Amounts with respect to Taxes that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on would have been imposed had the Notes or from payments under Holder presented the Subsidiary Guarantees or JV Subsidiary Guarantees (if anyNote for payment within such 30-day period);
(D) 8) any tax, assessment, withholding Taxes imposed on or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction with respect to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) a payment to a Holder that is a fiduciary, fiduciary or partnership or person any Person other than the sole beneficial owner of any such payment or Note, to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, or a member of that such partnership or a the beneficial owner who of such payment or Note would not have been entitled to such the Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the actual Holder of such Note;
(9) any Taxes imposed pursuant to Sections 1471 to 1474 of the Code (or any regulations or agreements thereunder or official interpretations thereof) also referred to as “FATCA,” any intergovernmental agreement facilitating the implementation thereof (or any law implementing such intergovernmental agreement), any successor law or regulation implementing or complying with, or introduced in order to conform to, such sections of the Code, or any agreement entered into pursuant to Section 1471(b)(1) of the Code; or
(10) any combination of the above.
(bc) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer will deliver to the Trustee and paying agent for the affected Notes notice 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 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.
(d) Upon request, the Issuer will provide the Trustee with official receipts, or official information reporting forms, or other documentation evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The Issuer 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.
(e) Whenever there reference is mentioned made in this Indenture, in any context context, to (i) the payment of principal ofor premium, and (ii) redemption prices or purchase prices in connection with a redemption or purchase of Notes, (iii) interest or (iv) any premium other amount payable on or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guaranteewith respect to the Notes, such mention shall reference will be deemed to include payment of Additional Amounts provided for in as described under this Indenture heading to the extent that, in such context, Additional Amounts are, were are or would be payable in respect thereof.
(f) The obligations described under this Section 2.13 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer or any Guarantor is organized or any political subdivision or taxing authority or agency thereof or therein.
(g) The Issuer and the Guarantors shall indemnify and hold harmless the Trustee for the amount of any Taxes in respect of which the Issuer, or any Guarantor, is required to pay Additional Amounts pursuant to Section 2.13(b) that are levied or imposed and paid by the Trustee as a result of payments made under or with respect to the Notes or any Guarantee, including any reimbursements under this Section 2.13(g).
Appears in 2 contracts
Sources: Indenture (Alcoa Corp), Indenture (Alcoa Corp)
Additional Amounts. (a) All payments by or on behalf of the Issuer or the surviving entity described under Section 5.01 hereof (the “Surviving Person”) under or with respect to (including any principal of, and premium (if any) and interest on on) the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (“Taxes”) imposed or levied by or within any jurisdiction in which the Company, a Issuer or the Surviving Person is organized, resident or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident doing business for tax purposes or any jurisdiction from or through which payment is made (or including the jurisdiction of any Paying Agent), or, in each case, any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC therein (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. .
(b) In the event that any such withholding or deduction is so required, the Company, a Surviving Person Issuer or the applicable Subsidiary Guarantor or JV Subsidiary GuarantorSurviving Person, as the case may be, will shall make such withholding or deduction, make payment of the amount so withheld or deducted to the appropriate governmental authority as required by applicable law and pay such additional amounts (“Additional Amounts”) as will shall result in receipt by the Holder of each Note of such amounts as that would have been received by such Holder had no such withholding or deduction been required, except provided that no Additional Amounts shall be payablepayable with respect to any Note:
(i1) for or on account of:
(A) any tax, duty, assessment or other governmental charge Taxes that would not have been imposed but for:
(1i) the existence of any present or former connection between the Holder or beneficial owner Beneficial Owner (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possession of power over, such Holder or Beneficial Owner, if such Holder or Beneficial Owner is an estate, a trust, a partnership, or a corporation) of such Note Note, as the case may be, and the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, including without limitation, such Holder or beneficial owner Beneficial Owner being or having been a nationalcitizen, domiciliary or resident of such Relevant Jurisdiction Jurisdiction, being or having been treated as a resident thereof or of such Relevant Jurisdiction, being or having been physically present or engaged in a trade or business therein in such Relevant Jurisdiction or having or having had a permanent establishment thereinin such Relevant Jurisdiction, other than any connection arising from the mere receipt, ownership, holding or disposition of the Notes or the receipt of payments thereunder or merely by reason of the exercise or enforcement of rights under any Notes;
(2ii) the presentation of such Note (in cases in which where presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, premium (if any, and ) or interest on, such 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 date within such 30-day period;
(3iii) the failure of the Holder or beneficial owner Beneficial Owner of such Note to comply with a timely request of the Company, a Issuer or the Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor Person addressed to the such Holder or Beneficial Owner to provide information or other evidence concerning such Holder’s or its beneficial ownerBeneficial Owner’s nationality, residence, identity or connection with any the Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such HolderJurisdiction; or
(4iv) the presentation of such any Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction by or the jurisdiction through which payments are made, unless such Note could not on behalf of a Holder of Notes who would have been presented for payment elsewhereable to avoid such withholding or deduction by presenting the relevant Note to another Paying Agent;
(B) any estate, inheritance, gift, salesales, transfer, capital gains, personal property or similar tax, assessment Tax or other governmental chargeany excise Tax imposed on the transfer of Notes;
(C) any tax, assessment or Taxes that are payable other governmental charge that is payable otherwise than by withholding or deduction from payments of principalprincipal of, or premium (if any) and or interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any)Note;
(D) any tax, assessmentduty, withholding assessment or deduction other governmental charge which is required by sections to be deducted or withheld under Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended, or any amended or successor versions of such Sections (“FATCA”), any current regulations or future Treasury Regulations or rulings promulgated other guidance thereunder, or any agreement (including any intergovernmental agreement) entered into in connection therewith, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any FATCA or an intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under in respect of FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges Taxes referred to in the preceding clauses (A), (B), (C) and (D); or
(ii2) with respect to a Holder that is any payment of the principal of, or premium (if any) or interest on, such Note to or for the account of a fiduciary, partnership partnership, limited liability company or other fiscally transparent entity or any other person (other than the sole beneficial owner Beneficial Owner of any payment such payment) to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the that fiduciary, or a partner or member of that partnership or an interest Holder in that limited liability company or fiscally transparent entity or a beneficial owner who Beneficial Owner with respect to such other person, as the case may be, would not have been entitled to such Additional Amounts had that such beneficiary, settlor, partner partner, member, interest Holder or beneficial owner been Beneficial Owner held directly the Holder thereofNote with respect to which such payment was made.
(bc) In addition to the foregoing, the Issuer and the Surviving Person shall pay and indemnify the Holder for any present or future stamp, issue, registration, court, property or documentary taxes, or any other excise or property taxes, charges or similar levies or taxes (including without limitation, interest and penalties with respect thereto) levied by any Relevant Jurisdiction on the execution, delivery, registration or enforcement of any of the Notes, this Indenture or any other document or instrument referred to therein or on 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 taxes imposed in a Relevant Jurisdiction that are not excluded under Sections 4.09(b)(1)(A) thorough (C) hereof (or any combination thereof) or Section 4.09(b)(2) hereof and excluding, for the avoidance of doubt, any net income taxes imposed on the receipt of any payments with respect thereto).
(d) If the Issuer or the Surviving Person, as the case may be, becomes aware that it shall be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes, the Issuer or the Surviving Person, as the case may be, shall deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises, or the Issuer or the Surviving Person becomes aware of such obligation, after the 30th day prior to that payment date, in which case the Issuer or the Surviving Person, as the case may be, shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts shall be payable and the amount estimated to be payable. The Officer’s Certificate must also set forth any other information reasonably necessary to enable the Paying Agent to pay 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 and shall not be responsible for the calculation of any Additional Amounts. Upon request, the Issuer or the Surviving Person shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts.
(e) The Issuer or the Surviving Person shall make all withholdings and deductions required by law and shall remit the full amount deducted or withheld to the relevant tax authority in accordance with applicable law. The Issuer or the Surviving Person shall 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 shall make available to Holders copies of those receipts or other documentation, as the case may be. The Trustee shall not be responsible for ensuring that the withholding and deduction of any amount has been properly made.
(f) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeNote, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(g) The obligations set forth in this Section 4.09 shall survive any termination, defeasance or discharge of this Indenture, any transfer by a Holder or Beneficial Owner of its Notes, and shall apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer is organized, resident or doing business for tax purposes or any jurisdiction from or through which payment is made.
Appears in 2 contracts
Sources: Indenture (Wynn Resorts LTD), Indenture (Wynn Resorts LTD)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(i) for or on account of:
(A1) any tax, duty, assessment or other governmental charge Taxes that would not have been so imposed but for:
(1) for the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and (or between a fiduciary, settlor, beneficiary, member, partner or shareholder of, the Relevant Jurisdiction relevant Holder or beneficial owner, if the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such relevant Holder or beneficial owner being is an estate, nominee, trust, limited liability company, partnership or having been a national, domiciliary or resident corporation) and the Relevant Taxing Jurisdiction (other than the receipt of such Relevant Jurisdiction payment or treated as a resident thereof the acquisition or being ownership of such Note or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereinenforcement of rights thereunder);
(2) any estate, inheritance, gift, sales, excise, transfer or personal property tax;
(3) any Taxes which are imposed, payable or due because the presentation of such Note Notes are presented (in cases in which where presentation is required) for payment more than 30 thirty (30) days after the later of the date on which the such payment of the principal of, premium, if any, and interest on, such Note became was due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except for Additional Amounts with respect to the extent Taxes that the Holder thereof would have been entitled to such Additional Amounts if it imposed had the Holder presented such the Note for payment on any date within the last day of such 30-day period;
(34) any Taxes that are imposed or withheld by reason of the failure of the Holder or beneficial owner of a Note to comply comply, at our written request, with a timely request of certification, identification, information, documentation or other reporting requirements concerning the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection of the Holder or such beneficial owner with any the Relevant Taxing Jurisdiction or the jurisdiction through to make, at our written request, any other claim or filing for exemption to which payments are madeit is entitled if
(a) such compliance, if and to the extent that due and timely compliance with such request making a claim or filing for exemption is required under or imposed by a statute, treaty or regulation or administrative practice of the tax laws taxing jurisdiction as a precondition to exemption from all or part of such jurisdiction Taxes, (b) the Payor has given the Holder or the beneficial owner at least thirty (30) days’ notice that the Holder or beneficial owner will be required to provide such certification, identification, documentation or other reporting requirement, and (c) the provision of any certification, identification, information, documentation or other reporting requirement would not be materially more onerous, in order form, in procedure or in the substance of information disclosed, to reduce a Holder or eliminate beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulations and administrative practice (such as U.S. Internal Revenue Service Forms W-8BEN-E and W-9);
(5) any withholding or deduction that is required to be made pursuant to the Luxembourg law of 23 December 2005, as amended;
(6) any Taxes which could have been avoided by the presentation (where presentation is required) of the relevant Note to which Additional Amounts would have otherwise been payable to such Holderanother reasonably available paying agent of the Payor in any member state of the European Union; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E7) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereofabove.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Additional Amounts. (a) All payments of principal of, and premium (premium, if any) , and interest on the Notes or and all payments under the Subsidiary Guarantees and JV Subsidiary Note Guarantees will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever (“Taxes”) nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person Company or an any applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, ) or any jurisdiction from or through which payment is made by or on behalf of the PRC Company or any Guarantor (including the jurisdiction of any Paying Agent) (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredevent, the Company, a Surviving Person Company or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder holder had no such withholding or deduction been required, except provided that no Additional Amounts shall will be payable:
(i) payable for or on account of:
(A1) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1A) the existence of any present or former connection between the Holder or beneficial owner of such Note or Note Guarantee, as the case may be, and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder holder or beneficial owner being or having been a national, domiciliary 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 Note or the receipt of payments thereunder or under the Note Guarantee;
(2B) the presentation of such Note (in cases in which where presentation is required) more than 30 thirty (30) days after the later of the date on which the payment of the principal of, premium, if any, and or interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that the Holder holder thereof would have been entitled to such Additional Amounts if it had presented such Note for payment on any date within such 30-day period;
(3C) the failure of the Holder holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor Company or any JV Subsidiary Guarantor addressed to the Holder holder or beneficial owner, as the case may be, to provide information concerning such Holderholder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce would have reduced or eliminate eliminated any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holderholder; or
(4D) the presentation of such Note (in cases in which where presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, unless such Note could not have been presented for payment elsewhere;
(B2) any estate, inheritance, gift, sale, transfer, excise or personal property or similar tax, assessment or other governmental charge;
(C3) any tax, duty, assessment or other governmental charge that which is payable otherwise other than (i) by deduction or withholding or deduction from payments of principal, premium (if any) and principal of or interest on the Notes Note or from payments under the Subsidiary Guarantees Note Guarantees, or JV Subsidiary Guarantees (if any)ii) by direct payment by the Company or applicable Guarantor in respect of claims made against the Company or the applicable Guarantor;
(D4) any tax, assessment, withholding or deduction required by sections tax arising pursuant to Sections 1471 through – 1474 of the U.S. Internal Revenue Code Code, of 1986, as amended, and any successor or amended (“FATCA”)version that is substantively comparable and not materially more onerous to comply with, any official interpretations thereof, current or future Treasury Regulations regulations or rulings promulgated thereunderagreements entered pursuant thereto, any lawagreement entered pursuant thereto, regulation any U.S. or other official guidance non-U.S. law enacted in any jurisdiction implementing FATCA, any connection with an intergovernmental agreement between the United States and any other jurisdiction to implement FATCArelated thereto, or any agreement with rules, regulations, or administrative guidance of any kind relating to any of the U.S. Internal Revenue Service under FATCAforegoing; or
(E5) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A1), (B2), (C3) and (D4); or
(iib) with respect to a Holder that any payment of the principal of, or premium, if any, or interest on, such Note or any payment under any Note Guarantee to such holder, if the holder is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner partner, or beneficial owner been the Holder holder thereof. In addition to the foregoing, the Company and the Guarantors will also pay and indemnify the holder of a Note for any present or future stamp, issue, registration, court or documentary taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and other reasonable expenses related thereto) which are levied by any Relevant Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, this Indenture, any Note Guarantee or any other document or instrument referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Note Guarantee. The Company and the Guarantors 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 Jurisdiction imposing such taxes, in such form as provided in the ordinary course by the Relevant Jurisdiction and as is reasonably available to the Company, and will provide such certified copies to the Trustee and the Paying Agent. Such copies shall be made available to the Holders upon request and will be made available at the offices of the Paying Agent. The Company or the Guarantor, as applicable, will attach to each certified copy a certificate stating (x) that the amount of withholding taxes evidenced by the certified 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.
(bc) Whenever there is mentioned in any context the payment of principal of, and any premium or interest oninterest, on any Note or under any Subsidiary Guarantee or JV Subsidiary Note Guarantee, such mention shall will be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Sources: Indenture (STUDIO CITY INTERNATIONAL HOLDINGS LTD), Indenture (Melco Resorts & Entertainment LTD)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest made by the Company on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will ------------------ be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (collectively, "Taxes") imposed or levied by or within on behalf of Germany or any jurisdiction in which the Company, a Surviving Person Company or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor any Successor Company is organized or is otherwise resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), any authority having power to tax therein or any jurisdiction from or through which payments are madepayment is made (each a "Relevant Taxing Jurisdiction"), unless such the withholding or deduction of such Taxes is then required by law or by regulation or governmental policy having the force of law. In If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction, shall at any time be required on any payments made by the event that any such withholding Company with respect to the Notes, including payments of Accreted Value, principal, redemption price, interest or deduction is so requiredpremium, the Company, a Surviving Person Company will pay such additional amounts (the "Additional Amounts") as may be necessary in order that the net amounts received in respect of such payments by the Holders of the Notes or the applicable Subsidiary Guarantor or JV Subsidiary GuarantorTrustee, as the case may be, will pay after such additional withholding or deduction, equal the respective amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as which would have been received by in respect of such Holder had no payments in the absence of such withholding or deduction been required, deduction; except that no such Additional Amounts shall will be payablepayable with respect to:
(ia) for any payments on a Note held by or on account behalf of a Holder or beneficial owner who is liable for such Taxes in respect of such Note by reason of the Holder or beneficial owner having some connection with 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) other than by the mere holding of such Note or enforcement of rights thereunder or the receipt of payments in respect thereof;
(Ab) any tax, duty, assessment Taxes that are imposed or other governmental charge that would not have been imposed but for:
(1) withheld as a result of a change in law after the existence Issue Date where such withholding or imposition is by reason of any present or former connection between the failure of the Holder or beneficial owner of such the Note and to comply with any request by the Relevant Jurisdiction Company to provide information concerning the nationality, residence or the jurisdiction through which payments are made, other than merely holding such Note or the receipt identity of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been to make any declaration or similar claim or satisfy any information or reporting requirement, which is required or imposed by a nationalstatute, domiciliary treaty, regulation or resident administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part 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 thereinTaxes;
(2c) except in the case of the winding up of the Company, any Note presented for payment (where presentation of such is required) in the Relevant Taxing Jurisdiction; or
(d) any Note presented for payment (in cases in which where presentation is required) more than 30 days after the later of the date on which the relevant payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant is first made available for payment 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 Holder. Such Additional Amounts if it will also not be payable where, had presented such Note for payment on any date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in Note been the income under Holder of the laws of a Relevant Jurisdiction or the jurisdiction through which payments are madeNote, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who he would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture by reason of clauses (a) to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof(d) inclusive above.
Appears in 2 contracts
Sources: Indenture (Cybernet Internet Services International Inc), Indenture (Cybernet Internet Services International Inc)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest made by the Company on the Notes (whether or under not in the Subsidiary Guarantees and JV Subsidiary Guarantees form of Definitive Notes) will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (collectively, "Taxes") imposed or levied by or within any jurisdiction in which on behalf of (1) Luxembourg, the CompanyUnited States, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (Ireland or any political subdivision or taxing governmental authority of any thereof or therein having power to tax, (2) any jurisdiction from or through which payment on the Notes is made, or any political subdivision or governmental authority thereof or therein), including, without limitation, therein having the PRC power to tax or (each, as applicable, 3) any other jurisdiction in which the Payor is organized or otherwise considered to be a “Relevant Jurisdiction”)resident for tax purposes, or any jurisdiction through which payments are madepolitical subdivision or governmental authority thereof or therein having the power to tax (each of clause (1), (2) and (3), a "Relevant Taxing Jurisdiction"), unless such the withholding or deduction of Taxes is then required by law or by regulation or governmental policy having the force of law. In If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the event that any such withholding Notes, including payments of principal, Redemption Price, interest, premium or deduction is so requiredLiquidated Damages, if any, the Company, a Surviving Person Payor will pay (together with such payments) such additional amounts (the "Additional Amounts") as may be necessary in order that the net amounts received in respect of such payments by the Holders of Notes or the applicable Subsidiary Guarantor or JV Subsidiary GuarantorTrustee, as the case may be, will pay after such additional amounts withholding or deduction (“including any such deduction or withholding from such Additional Amounts”) as will result in receipt by ), equal the Holder of each Note of such amounts as which would have been received by in respect of such Holder had no payments on the Notes in the absence of such withholding or deduction been requireddeduction; PROVIDED, except HOWEVER, that no such Additional Amounts shall will be payable:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but forpayable with respect to:
(1) any payments to a Holder or beneficial owner who is liable for such Taxes in respect of such Note by reason of the existence of Holder's or beneficial owner's having any present or former connection between with 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) other than by the mere holding of such Note or enforcement of rights thereunder or the receipt of payments in respect thereof;
(2) any Taxes that are imposed or withheld where such withholding or imposition is by reason of the failure of the Holder or beneficial owner of such the Note to comply with any reasonable and timely request by the Relevant Jurisdiction Payor to provide information concerning the nationality, residence or the jurisdiction through which payments are made, other than merely holding such Note or the receipt identity of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been to make any declaration or similar claim or satisfy any certification, information or other reporting requirement relating to such matters, which is required or imposed by a nationalstatute, domiciliary treaty, regulation, protocol, or resident administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part 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 thereinTaxes;
(23) except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of such the Payor's actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);
(4) any Note presented for payment (in cases in which where presentation is required) more than 30 days after the later of relevant payment is first made available for payment to the date on which Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);
(5) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, and interest onor Liquidated Damages, such Note became due and payable pursuant to if any, on 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 date within such 30-day periodNotes;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B6) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C7) a Tax imposed on a payment to an individual and required to be made pursuant to any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium European Union Directive (if anya "Directive") and interest on the Notes or from payments under taxation of savings implementing the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 conclusions of the Internal Revenue Code ECOFIN Council meeting of 1986, as amended (“FATCA”), 26-27 November 2000 or any current law implementing or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAcomplying with, or any agreement with the U.S. Internal Revenue Service under FATCAintroduced in order to conform to, such Directive; or
(E) any combination 8) a Tax imposed in connection with a Note presented for payment by or on behalf of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to another paying agent in a fiduciarymember state of the European Union. Such Additional Amounts will also not be payable where, partnership or person other than had the sole beneficial owner of any payment to the extent that such payment would be required to be included in Note been the income under Holder of the laws of a Relevant Jurisdiction or the jurisdiction through which payments are madeNote, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who it would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture by reason of clauses (1) to (8) inclusive above. Upon request, the Company will provide the Trustee with documentation satisfactory to the extent that, in Trustee evidencing the payment of Additional Amounts. Copies of such context, Additional Amounts are, were or would documentation will be payable in respect thereofmade available to the Holders upon request.
Appears in 2 contracts
Sources: Euro Indenture (MDCP Acquisitions I), Dollar Indenture (MDCP Acquisitions I)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on Payments made by the Issuers under or with respect to the Notes or under any of the Subsidiary Guarantees and JV Guarantors with respect to any Subsidiary Guarantees will 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, assessment or other governmental charge (“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 present or future taxes, duties, assessments or governmental charges of whatever nature Taxes imposed or levied by or within on behalf of (1) any jurisdiction in which the Company, a Surviving Person any Issuer or an applicable Subsidiary Guarantor or JV any Subsidiary Guarantor is organized at any relevant time organized, engaged in business for tax purposes or resident for tax purposes (or any political subdivision or taxing authority thereof or therein)therein or (2) any jurisdiction from or through which payment is made by or on behalf of any Issuer or any Subsidiary Guarantor (including the jurisdiction of any paying agent) or any political subdivision thereof or therein (each, including, without limitationa “Tax Jurisdiction”) will at any time be required to be made from any payments made by any Issuer under or with respect to the Notes or any of the Subsidiary Guarantors with respect to any Subsidiary Guarantee, the PRC (eachCompany, the Co-Issuer or the relevant Subsidiary Guarantor, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay to each Holder of Notes that are outstanding on the date of the required payment, such additional amounts (“Additional Amounts”) as will result in receipt may be necessary so that the net amount received by the Holder of each Note of such amounts as would have been received by such Holder had no applicable beneficial owner (including the Additional Amounts) after such withholding or deduction (including any such withholding or deduction in respect of Additional Amounts) will equal the amount such beneficial owner would have received if such Taxes had not been required, except withheld or deducted; provided that no Additional Amounts shall will be payable:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the payable with respect to a payment to a Holder or beneficial owner of the Notes in respect of the following Taxes (“Excluded Taxes”):
(i) Canadian Taxes imposed because the Company does not deal at arm’s-length (within the meaning of the Income Tax Act (Canada)) with such Note and Holder or beneficial owner at the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding time of making such Note or the receipt payment,
(ii) Taxes imposed by reason of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been connected with a national, domiciliary or resident of such Relevant relevant Tax Jurisdiction or treated as a resident any province or territory 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;
(2) otherwise than by the presentation of such Note (in cases in which presentation is required) more than 30 days after the later mere holding of the date on which Notes or the payment receipt of the principal payments in respect of, premium, if any, and interest onor enforcement of, such 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 date within such 30-day period;a Subsidiary Guarantee,
(3iii) the failure Taxes payable as a result of the Holder such Holder’s or beneficial owner owner’s failure to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed Company to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection comply with any Relevant Jurisdiction certification, identification, documentation or the jurisdiction through which payments are made, other reporting requirements if and to the extent that due and timely compliance with such request is required under by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or a reduction in the tax laws rate of such jurisdiction in order to reduce deduction or eliminate any withholding or deduction as of, Taxes imposed by a relevant Tax Jurisdiction to which Additional Amounts would have otherwise been payable to such Holder; orHolder or beneficial owner is entitled,
(4iv) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, salesales, transfer, personal property transfer or similar taxTaxes,
(v) Taxes in respect of which the payment could have been made without deduction or withholding for such Taxes if such Holder or beneficial owner had presented such Notes for payment within 30 days after the date on which such payment on such Notes became due and payable or the date on which payment thereof is duly provided for, assessment whichever is later (except to the extent that such Holder or other governmental chargebeneficial owner would have been entitled to Additional Amounts had such Notes been presented on the last day of such 30-day period),
(vi) Canadian Taxes imposed because such payment is deemed (under subsection 214(16) of the Income Tax Act (Canada)) to be a dividend paid by the Company to such Holder or beneficial owner because such Holder or beneficial owner is a “specified shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)),
(vii) any U.S. federal withholding Taxes imposed by reason of such payment being treated as allocable to the Co-Issuer for U.S. federal income tax purposes;
(Cviii) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections imposed pursuant to current Sections 1471 through 1474 of the Internal Revenue Code of 1986, as or any amended (“FATCA”)or successor version that is substantively comparable and not materially more onerous to comply with, any current or future Treasury Regulations regulations or rulings promulgated thereunderofficial interpretations thereof, any lawagreement entered into pursuant to current Section 1471(b)(1) of the Code or any amended or successor provision that is substantively comparable and not materially more onerous to comply with, regulation and any fiscal or other regulatory legislation, rules or official guidance enacted in any jurisdiction implementing FATCA, administrative practices adopted pursuant to any intergovernmental agreement between agreement, treaty or convention among governmental authorities and implementing such Sections of the United States and any other jurisdiction to implement FATCACode, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(Eix) any combination of taxes, duties, assessments or other governmental charges referred to the Taxes described in the preceding above clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereofthis proviso.
(b) If it is the applicable withholding agent, the Company, the Co-Issuer or the relevant Subsidiary Guarantor shall 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.
(c) The Company, the Co-Issuer or the relevant Subsidiary Guarantor will furnish, within 30 days after the date on which the payment of any Taxes is due pursuant to applicable law, to the Trustee on behalf of the Holders of the applicable Notes that are outstanding on the date of the required payment, copies of tax receipts, if any (or other documentation), evidencing the payments of Taxes made by the Company, the Co-Issuer or a Subsidiary Guarantor, as the case may be, on behalf of the Holders or beneficial owners of the applicable Notes. The Issuers and the Subsidiary Guarantors will indemnify and hold harmless each Holder (for itself and its applicable beneficial owners) and upon written request reimburse each such Holder for the amount of:
(i) any Taxes (other than Excluded Taxes) so levied or imposed by a relevant Tax Jurisdiction and paid by such Holder or beneficial owners as a result of payments made under or with respect to the Notes or any Subsidiary Guarantee,
(ii) any liability (including penalties, interest and expense) arising from such Taxes described in clause (i) above or with respect thereto, and
(iii) any Taxes (other than Excluded Taxes) imposed by a relevant Tax Jurisdiction with respect to any reimbursement under clause (i) or (ii) above. In addition to the foregoing, the Issuers and the Subsidiary Guarantors will also pay and indemnify each Holder (for itself and its applicable beneficial owners) for any present or future stamp, issue, registration, transfer, court or documentary taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and any other liabilities related thereto) which are levied by any relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, this Indenture, any Subsidiary Guarantee or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Subsidiary Guarantee.
(d) At least 30 days prior to each date on which any payment under or with respect to the Notes is due and payable (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Company, the Co- Issuer or a Subsidiary Guarantor becomes obligated to pay Additional Amounts with respect to such payment, the Company, the Co-Issuer or the relevant Subsidiary Guarantor, as applicable, shall deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts shall be payable, and the amounts so payable and shall set forth such other information as is necessary to enable the Trustee to pay such Additional Amounts to the Holders of the Notes on the payment date. Whenever in this Indenture there is mentioned mentioned, in any context context:
(i) the payment of principal of(and premium, and if any),
(ii) purchase prices in connection with a repurchase of Notes,
(iii) interest, or
(iv) any premium other amount payable on or interest on, with respect to any Note of the Notes or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture Section 4.19 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The obligations in this Section 4.19 will survive any termination, defeasance or discharge of this Indenture, 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 Company, the Co-Issuer or any Subsidiary Guarantor is organized, 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 (or any Subsidiary Guarantee) or any political subdivision thereof or therein.
Appears in 2 contracts
Additional Amounts. (a) All payments of principal of, made by the Issuers under or with respect to the Securities and premium (if any) and interest on by the Notes or Company under the Subsidiary Guarantees and JV Subsidiary Guarantees Guaranty will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxes, levies, duties, fees, assessments or other governmental charges of whatever nature imposed ("Taxes") imposed, levied, collected or levied assessed by or on behalf of any taxing authority within the Cayman Islands or Thailand, unless the Issuers are or the Company is, as the case may be, required to withhold or deduct or if the Issuers are or the Company is otherwise required to pay any jurisdiction amount for or on account of Taxes imposed by a taxing authority within the Cayman Islands or Thailand from or in respect of any payment made under or with respect to the Securities or the Guaranty, in which case the Issuers or the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“"Additional Amounts”") as will result in receipt by may be necessary so that the Holder of each Note of such amounts as would have been net amount received by such Holder had no each holder and beneficial owner of Securities (including Additional Amounts) after such withholding or deduction or other payment of Taxes will not be less than the amount the holder and beneficial owner would have received if such Taxes had not been requiredwithheld or deducted or paid; provided, except however, that no Additional Amounts shall will be payable:
payable with respect to a payment made to a holder of Securities with respect to any Tax: (i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that which would not have been imposed imposed, payable or due but for:
(1) for the existence of any present or former connection between the Holder holder (or the beneficial owner 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 the Securities; (ii) which would not have been imposed, payable or due if the Securities are held in definitive registered form ("Definitive Registered Securities") and the presentation of Definitive Registered Securities for payment had occurred within 30 days after the date such payment was due and payable or was provided for, whichever is 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; (iii) that is an estate, inheritance, gift, sales, transfer, personal property or similar Tax; (iv) that is imposed or withheld by reason of the failure of the holder or beneficial owner of such Note and a Security to comply, at the Relevant Jurisdiction reasonable request of the Issuers or the Company, as the case may be, with certification, information or other reporting requirements concerning the nationality, residence or identity of the holder or such beneficial owner if such compliance is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction through which as a precondition to exemption from all or part of such Tax; (v) if the beneficial owner of, or person ultimately entitled to obtain an interest in, such Securities had been the holder of the Securities and would not be entitled to the payment of Additional Amounts; or (vi) payable otherwise than by withholding from payments are made, other than merely holding such Note on or in respect of any Security.
(b) The Issuers or the receipt 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 Issuers or the Company, as the case may be, will make reasonable efforts to obtain certified copies of payments thereunder tax receipts evidencing the payment of any Taxes so deducted or under a Subsidiary Guarantee withheld from each taxing authority imposing such Taxes. The Issuers or JV Subsidiary Guaranteethe Company, includingas the case may be, without limitationwill furnish to the holders of the Securities, such Holder or beneficial owner being or having been a national, domiciliary 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 within 60 days after the later date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, 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 of Securities (subject to the 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 amount of any Taxes levied or imposed by the Cayman Islands or Thailand and paid by such holder as a result of payments made under or with respect to the Securities 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 Securities or under the Guaranty is due and payable, if the Issuers or the Company will be obligated to pay Additional Amounts with respect to such payment, the Issuers or the Company will deliver to the Trustee 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 Trustee to pay such Additional Amounts to the holders of Securities on the payment date. Whenever in this Indenture or in the Securities there is mentioned, in any context, the payment of amounts based upon the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, amount payable under or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, any Security or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, either Guaranty such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) In addition, the Issuers will pay any stamp, issue, registration, documentary, value added or other similar taxes and other duties (including interest and penalties) payable in the Cayman Islands or in Thailand (or any political subdivision or taxing 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 amounts of principal ofprincipal, premium, if any, and premium (interest, if any) and interest , on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees any series of Subordinated Debt Securities will be made paid by the Company without deduction or withholding or deduction for, or on account of, any and all present or and future income, stamp and other taxes, levies, imposts, duties, assessments charges, fees, deductions or governmental charges of whatever nature imposed withholdings now or levied hereafter imposed, levied, collected, withheld or assessed by or within any jurisdiction in which on behalf of the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (United Kingdom or any political subdivision or taxing any authority thereof or therein), including, without limitation, therein having the PRC power to tax (each, as applicable, a the “Relevant U.K. Taxing Jurisdiction”), or any jurisdiction through which payments are made, unless such deduction or withholding or deduction is required by law or by regulation or governmental policy having the force of law. In Unless otherwise specified in any Board Resolution, or an Officer’s Certificate, establishing the event that terms of Subordinated Debt Securities of a series in accordance with Section 3.01, if deduction or withholding of any such withholding taxes, levies, imposts, duties, charges, fees, deductions or deduction is so requiredwithholdings shall at any time be required by the U.K. Taxing Jurisdiction, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Company will pay such additional amounts with respect to interest and any redemption premium, on any series of Subordinated Debt Securities (“Additional Amounts”) as will result may be necessary in receipt by order that the Holder net amounts paid to the Holders of each Note Subordinated Debt Securities of the particular series, after such deduction or withholding, shall equal the amounts of such amounts as payments which would have been received by payable in respect of such Holder Subordinated Debt Securities had no such deduction or withholding or deduction been required; provided, except however, that no Additional Amounts shall be payablethe foregoing will not apply to any such tax, levy, impost, duty, charge, fee, deduction or withholding that would not have been payable or due but for the fact that:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or the beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are madeSubordinated Debt Security is a domiciliary, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary national or resident of such Relevant Jurisdiction of, or treated as a resident thereof engaging in business or being or having been physically present or engaged in a trade or business therein or having or having had maintaining a permanent establishment therein;or physically present in, the U.K. Taxing Jurisdiction or otherwise has some connection with the U.K. Taxing Jurisdiction other than the mere holding or ownership of a Subordinated Debt Security, or the collection of the payment on any Subordinated Debt Security of the relevant series,
(2ii) except in the presentation case of such Note a winding-up of the Company in the United Kingdom, the relevant Subordinated Debt Security is presented (in cases in which where presentation is required) for payment in the United Kingdom,
(iii) the relevant Subordinated Debt Security is presented (where presentation is required) for payment more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had presented such Note Amount on presenting (where presentation is required) the Subordinated Debt Security for payment on any date within at the close of such 30-30 day period;,
(3iv) the failure Holder or the beneficial owner of the relevant Subordinated Debt Security or the payment on such Subordinated Debt Security failed to comply with a request by the Company or its liquidator or other authorized person addressed to the Holder (x) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (y) to comply with make any declaration or other similar claim to satisfy any requirement, which in the case of (x) or (y), is required or imposed by a timely request statute, treaty, regulation or administrative practice of the Company, U.K. Taxing Jurisdiction as a Surviving Person, any Subsidiary Guarantor precondition to exemption or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s relief from all or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws part of such jurisdiction in order to reduce deduction or eliminate any withholding,
(v) the withholding or deduction as is required to which Additional Amounts would have otherwise been payable be made pursuant to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (“FATCA”)amended, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCATreasury entered into with respect thereto, any U.S. Treasury regulation issued thereunder or any other official interpretations or guidance issued with respect thereto; any intergovernmental agreement entered into with respect thereto, or any law, regulation, or other official interpretation or guidance promulgated pursuant to such an intergovernmental agreement, or
(Evi) any combination of taxessubclauses (i) through (v) above, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) nor shall Additional Amounts be paid with respect to a payment on the Subordinated Debt Securities to any Holder that who is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of any such payment to the extent that such payment would be required by the laws of the U.K. Taxing Jurisdiction to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, purposes of a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a beneficial owner who would not have been entitled to such Additional Amounts Amounts, had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
(b) Holder. Whenever in this Subordinated Debt Securities Indenture there is mentioned mentioned, in the context of any context Subordinated Debt Security, the payment of principal the principal, premium, if any, or interest, if any, on, or in respect of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeSubordinated Debt Security, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to the provisions of this Section and as if express mention of the payment of Additional Amounts (if applicable) were made in any provisions hereof where such express mention is not made.
Appears in 2 contracts
Sources: Eighth Supplemental Indenture (NatWest Group PLC), Eighth Supplemental Indenture (NatWest Group PLC)
Additional Amounts. (a) All payments made by or on behalf of principal of, and premium (if any) and interest on the Issuers or any Guarantor under or with respect to the Notes or under the Subsidiary Guarantees and JV 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 taxes, duties, assessments or governmental charges of whatever nature imposed or levied Taxes unless required by or within law. If any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required for or on account of Taxes imposed by law a Relevant Taxing Jurisdiction from any payment made under or by regulation with respect to the Notes or governmental policy having the force under any Guarantee (including payments of law. In the event that any such withholding principal, redemption price, interest or deduction is so requiredpremium (if any)), the Company, a Surviving Person Issuers or the applicable Subsidiary Guarantor or JV Subsidiary such Guarantor, as the case may be, will pay (together with such payments) such additional amounts (“Additional Amounts”) as will result in receipt by may be necessary so that the Holder of each Note of such amounts as would have been net amount received by such Holder had no each beneficial owner of Notes (including Additional Amounts) after such withholding or deduction will equal the amount the beneficial owner would have received if such Taxes had not been requiredwithheld or deducted; provided, except however, that no Additional Amounts shall will be payablepayable with respect to:
(i) for or on account of:
(A) any taxTax, duty, assessment or other governmental charge that to the extent such Tax would not have been imposed but for:
(1) for the existence of any actual or deemed present or former connection between the Holder holder or the beneficial owner of such Note Notes and the Relevant Taxing Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner (including being or having been a national, domiciliary citizen or resident of such Relevant Jurisdiction or treated as of, carrying on a resident thereof or business in, being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereinin, the Relevant Taxing Jurisdiction) other than a connection arising solely from the acquisition, ownership, holding or disposition of the Notes, the enforcement of rights under the Notes or any Guarantee or the receipt of payments under or in respect of the Notes or any Guarantee;
(2ii) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal ofany Tax, premium, if any, and interest on, such 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 date within such 30-day period;
(3) Tax is imposed or withheld as a result of the failure of the Holder holder or beneficial owner to comply with a timely request of the CompanyNotes to satisfy any certification, a Surviving Person, any Subsidiary Guarantor identification or any JV Subsidiary Guarantor addressed to other reporting requirements concerning the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any the Relevant Taxing Jurisdiction of such holder or beneficial owner which is required by applicable law, treaty, regulation or administrative practice of the jurisdiction through which payments are madeRelevant Taxing Jurisdiction as a precondition to exemption from, if and or reduction in the rate of deduction or withholding of, all or part of such Tax (including, without limitation, a certification that the holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction), but in each case, only to the extent that due and timely compliance with such request holder or beneficial owner is required under the tax laws of legally eligible to provide such jurisdiction in order to reduce certification or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; orother documentation;
(4iii) any Tax that would not have been imposed if the presentation of such Note Notes (in cases in which where presentation is required) for payment in had occurred within 30 days after the Relevant Jurisdiction date such payment was due and payable or was duly provided for, whichever is later (except to the jurisdiction through which payments are made, unless such Note could not extent that the holder or beneficial owner would have been entitled to Additional Amounts had the note been presented for payment elsewherewithin such 30-day period);
(Biv) any estate, inheritance, gift, salevalue added, transfer, personal property sales or similar tax, assessment or other governmental chargeTax;
(Cv) any taxTax, assessment to the extent such Tax imposed in respect of a holder or beneficial owner and required to be withheld or deducted pursuant to the European Union Directive on the taxation of savings income (the “Directive”) that was adopted by the ECOFIN Council of the European Union (the Counsel of EU finance and economic ministers) on June 3, 2003, or any other governmental charge Directive implementing the conclusions of the ECOFIN meeting of November 26-27, 2000, or any law implementing or complying with, or introduced in order to conform to, the Directive or the Luxembourg law of December 23, 2005;
(vi) any Tax that could have been avoided by the presentation of Notes (where presentation is required) for payment to another paying agent in a member state of the European Union;
(vii) any Tax payable otherwise other than by deduction or withholding from payments under, or with respect to, the Notes or the Guarantee;
(viii) any withholding or deduction required pursuant to Sections 1471 through 1474 of the Code as of the Issue Date (or any amended or successor version), any regulations or agreements thereunder, official interpretations thereof, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code; or
(ix) any combination of clauses (i) through (viii) above.
(b) The applicable withholding agent will (i) make any required withholding or deduction; and (ii) remit the full amount deducted or withheld to the Relevant Taxing Authority in accordance with applicable law. The Issuers or any Guarantor, as applicable, will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the First Lien Trustee. If certified copies of such tax receipts are not reasonably obtainable, the Issuers or such Guarantor, as applicable, shall provide the First Lien Trustee with other evidence of payment reasonably satisfactory to the First Lien Trustee. Such certified copies or other evidence shall be made available to holders upon request.
(c) Each of the Issuers and the Guarantors will indemnify and hold harmless each holder and beneficial owner from and against any Taxes withheld or deducted (other than Taxes excluded by clauses (i) through (ix) above) that are levied or imposed on a holder or beneficial owner (x) as a result of payments made under or with respect to the Notes or (y) with respect to any indemnification payments under the foregoing clause (x) or this clause (y), such that the net amount received by such holder or beneficial owner after such indemnification payments will not be less than the net amount the holder or beneficial owner would have received if the Taxes described in clauses (x) and (y) above had not been imposed.
(d) Whenever in this Indenture there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, premium (if any) and or interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, amount payable under or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to any of the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeNotes, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The Issuers will pay any present or future stamp, issue, registration, court or documentary Taxes, or any other excise, property or similar Taxes, that arise in any jurisdiction from the execution, issuance, delivery, registration or enforcement of the Notes, any Guarantee, this Indenture, or any other document or instrument referred to therein, or the receipt of any payments with respect to the Notes or the Guarantees (“Documentary Taxes”); provided that the Issuer will not be liable for any Luxembourg registration duties, which would become payable as a result of the registration, by any holder, of the documents relating to the Notes, any Guarantee, this Indenture, or any other document or instrument referred to herein or therein, when such registration is not required to enforce that holder’s rights under the documents relating to the Notes, any Guarantee, this Indenture, or any other document or instrument referred to herein or therein.
(f) The obligation to pay Additional Amounts and Documentary Taxes under the terms and conditions described above will survive any termination, defeasance or discharge of this Indenture, and will apply mutatis mutandis to any successor to the Issuers or any Guarantor and to any jurisdiction in which any such successor is incorporated, organized, resident or engaged in business for tax purposes, or any jurisdiction from or through which any such successor makes payment on the Notes or any Guarantee, and any political subdivision or Taxing Authority thereof or therein.
Appears in 2 contracts
Sources: Indenture (Mallinckrodt PLC), Exchange Agreement (Mallinckrodt PLC)
Additional Amounts. (a) All payments Unless otherwise specified in any Board Resolution of principal ofthe Company or the Guarantor establishing the terms of Securities of a series or the Guarantee relating thereto in accordance with Section 2.01, and premium (if any) and interest on the Notes any deduction or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, for any present or future taxes, duties, assessments taxes or other governmental charges of whatever nature imposed or levied by or within any the jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein)) in which the Guarantor is resident, including, without limitationshall 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 the Guarantee, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, 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 or other governmental charge, is not resident in such jurisdiction, after such deduction or withholding, shall be not less than the amounts specified in such Security to which such Holder is entitled (“Additional Amounts”) as will result in receipt by ); provided, however, that the Holder Guarantor shall not be required to make any payment of each Note of such amounts as would have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(i) for or on account of:
(Aa) any tax, duty, assessment such tax or other governmental charge that imposed by the United States or any political subdivision or taxing authority thereof or therein;
(b) any such tax or governmental charge which would not have been imposed but for:
(1) for the existence of any present or former connection between the such Holder (or beneficial owner between a fiduciary, settler, beneficiary, member or shareholder of, or possessor of a power over, such Note Holder, if such Holder is an estate, trust, partnership or corporation) and the Relevant Jurisdiction taxing jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note any political subdivision or the receipt of payments thereunder territory or under a Subsidiary Guarantee possession thereof or JV Subsidiary Guaranteearea subject to its jurisdiction, including, without limitation, such Holder (or beneficial owner such fiduciary, settler, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary 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;
(2c) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the a withholding or deduction with respect to any payment of the principal of, premium, if any, and or any interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws Security of such jurisdiction in order series to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that who is a fiduciary, partnership or person other than entity that is not the sole beneficial owner of any such payment to the extent that and 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 under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, purposes of a beneficiary or settlor with respect to the such fiduciary, or a member of that such partnership or other entity, or a beneficial owner who would not have been entitled to such Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the Holder thereof.of such Security, provided the amount of the additional payments otherwise payable to such fiduciary, partnership or other entity will be reduced in proportion to the interest that the ultimate beneficial owners described above own in such Holder;
(bd) Whenever there any such tax or governmental charge which would not have been imposed but for the presentation of a Security of such series (where presentation is mentioned in any context required) for payment on a date more than 30 days after the date on which such payment of principal ofbecame due and payable or the date on which payment thereof is duly provided for, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.whichever occurs later;
Appears in 2 contracts
Sources: Indenture (Shell PLC), Indenture (Shell International Finance B.V.)
Additional Amounts. (a) All payments Amounts to be paid on any series of principal of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees Subordinated Debt Securities will be made without deduction or withholding or deduction for, or on account of, any and all present or and future income, stamp and other taxes, levies, imposts, duties, assessments charges or governmental charges of whatever nature imposed fees imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which on behalf of the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (United Kingdom or any political subdivision or taxing authority thereof or therein), including, without limitation, therein having the PRC power to tax (each, as applicable, a the “Relevant Taxing Jurisdiction”), or any jurisdiction through which payments are made, unless such deduction or withholding or deduction is required by law or by regulation or governmental policy having the force of law. In If at any time a Taxing Jurisdiction requires the event that any Company to make such withholding deduction or deduction is so requiredwithholding, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Company will pay such additional amounts with respect to the principal of, interest and any other payment on, the Subordinated Debt Securities (“Additional Amounts”) as will result that are necessary in receipt by order that the Holder net amounts paid to the Holders of each Note Subordinated Debt Securities of such the particular series, after the deduction or withholding, shall equal the amounts as which would have been received by such Holder payable on the Subordinated Debt Securities if the deduction or withholding had no such withholding or deduction not been required. However, except that no Additional Amounts shall be payablethis will not apply to any such tax, levy, impost, duty, charge or fee, which would not have been deducted or withheld but for the fact that:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or beneficial owner the Beneficial Owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are madeSubordinated Debt Security is a domiciliary, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary national or resident of such Relevant Jurisdiction of, or treated as a resident thereof engaging in business or being or having been physically present or engaged in a trade or business therein or having or having had maintaining a permanent establishment therein;or physically present in, the Taxing Jurisdiction or otherwise having some connection with the Taxing Jurisdiction other than the holding or ownership of a Subordinated Debt Security, or the collection of any payment of, or in respect of, principal of, or any interest, or other payment on, any Subordinated Debt Security of the relevant series,
(2ii) except in the presentation case of such Note winding-up in the United Kingdom, the relevant Subordinated Debt Security is presented (in cases in which where presentation is required) for payment in the United Kingdom,
(iii) the relevant Subordinated Debt Security is presented (where presentation is required) for payment more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the Holder thereof would have been entitled to such the Additional Amounts if it had presented such Note on presenting the same for payment on any date within such 30-at the close of that 30 day period;,
(3iv) the failure Holder or the Beneficial Owner of the relevant Subordinated Debt Security or the Beneficial Owner of any payment of, or in respect of, principal of, or any interest or other payment on, the Subordinated Debt Security failed to comply with a request of the Company or its liquidator or other authorized person addressed to the Holder (x) to provide information concerning the nationality, residence or identity of the Holder or beneficial owner the Beneficial Owner or (y) to comply with make any declaration or other similar claim to satisfy any requirement, which in the case of (x) or (y), is required or imposed by a timely request statute, treaty, regulation or administrative practice of the CompanyTaxing Jurisdiction as a precondition to exemption from all or part of the tax, a Surviving Personlevy, any Subsidiary Guarantor impost, duty, charge or fee;
(v) the withholding or deduction is required to be made pursuant to European Council Directive 2003/48/EC on the taxation of savings income, or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning directive amending, supplementing or replacing such Holder’s directive or its beneficial owner’s nationalityany law implementing or complying with, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction introduced in order to reduce conform to, such directive or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; ordirectives;
(4vi) the presentation of such Note relevant Subordinated Debt Security is presented (in cases in which where presentation is required) for payment in the Relevant Jurisdiction by or the jurisdiction through which payments are made, unless such Note could not on behalf of a Holder who would have been presented for payment elsewhereable to avoid such withholding or deduction by presenting the relevant Subordinated Debt Security to another paying agent;
(Bvii) any estate, inheritance, gift, sale, transfer, personal property the deduction or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that withholding is payable otherwise than imposed by withholding or deduction from payments reason of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through Sections 1471-1474 of the US Internal Revenue Code of 1986, as amended and the U.S. Treasury regulations thereunder or any agreement with the U.S. Internal Revenue Service in connection with these sections and regulations (“FATCA”), any current intergovernmental agreement between the United States and the United Kingdom or future Treasury Regulations any other jurisdiction with respect to FATCA, or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCAimplementing, or relating to, FATCA or any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAagreement, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(Eviii) any combination of taxessubclauses (i) through (vii) above, duties, assessments nor shall Additional Amounts be paid with respect to the principal of or any interest or other governmental charges referred payment on, the Subordinated Debt Securities to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a any Holder that who is a fiduciary, fiduciary or partnership or any person other than the sole beneficial owner Beneficial Owner of any such payment to the extent that such payment would be required by the laws of any Taxing Jurisdiction to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, purposes of a beneficiary or partner or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a beneficial owner Beneficial Owner who would not have been entitled to such Additional Amounts Amounts, had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
(b) Holder. Whenever in this Subordinated Indenture there is mentioned mentioned, in any context context, the payment of the principal of or any interest or other payments on, or in respect of, and any premium or interest on, Subordinated Debt Security of any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, series such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to the provisions of this Section and as if express mention of the payment of Additional Amounts (if applicable) were made in any provisions hereof where such express mention is not made. Upon request from the Trustee or a paying agent, the Company shall provide information reasonably necessary and readily available in order to enable to the Trustee or paying agent to determine whether any withholding obligations under FATCA apply. None of the Company, the Trustee or a paying agent shall have any liability in connection with the Company’s or Trustee’s or paying agent’s compliance with any such withholding obligation under applicable law.
Appears in 2 contracts
Sources: Sixth Supplemental Indenture (Lloyds Banking Group PLC), Third Supplemental Indenture (Lloyds Bank PLC)
Additional Amounts. (a) All payments by the Company in respect of principal the Notes shall be made free and clear of, and premium (if any) and interest on the Notes without deduction or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments assessments, or other governmental charges of whatever nature imposed or levied by or within the authorities of any jurisdiction ("WITHHOLDING TAXES"), unless the Company is compelled by law to deduct or withhold such taxes, duties, assessments, or governmental charges. In such event, the Company shall make such deduction or withholding, make payment of the amount so deducted or withheld to the appropriate governmental authority and forthwith pay such additional amounts ("ADDITIONAL AMOUNTS") as may be necessary to ensure that the net amounts receivable by the holders of the Notes after such deduction or withholding shall equal the payment which would have been receivable in which respect of the CompanyNotes in the absence of such deduction or withholding. The Company shall cause to be delivered, or, in the case of notes held by an institution that is holding the Notes on behalf of a beneficial owner, to use its best efforts to cause the institution to deliver, to the Paying Agent all forms necessary to ensure that a minimal rate of withholding applies to all payments by the Company in respect of the Notes to the holders or beneficial holders of the Notes, such as an IRS Form W-8IMY and any attached IRS Form W-8BEN, or a statement of withholding or allocation, as necessary. Notwithstanding the foregoing, no such Additional Amounts shall be payable: (i) if such Withholding Taxes would not have been imposed but for (A) a present or former connection between the jurisdiction imposing the tax or any political subdivision or taxing authority thereof or therein and the holder or beneficial holder of the relevant Note including, without limitation, a Surviving Person connection arising from such holder or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized beneficial holder having been a citizen, domiciliary, or resident for tax purposes of such jurisdiction or such political subdivision or taxing authority, being organized in such jurisdiction or such political subdivision or taxing authority, or having had a permanent establishment, branch or other fixed place of business therein (but excluding a connection arising solely from such holder or beneficial holder having executed, delivered, performed its obligations or received payment under the Fiscal Agency Agreement or this Note), or (B) the failure of the holder or beneficial holder of the relevant Note to comply with any reasonable certification, identification or other reporting requirement (or such certifications, identifications or reporting proving to be false or incorrect) concerning the nationality, residence, identity or connection with such jurisdiction, or any political subdivision or taxing authority thereof or therein), includingof such holder or beneficial holder, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”)if compliance is required by such jurisdiction, or any jurisdiction through which payments are made, unless such withholding political subdivision or deduction is required by law taxing authority thereof or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantortherein, as the case may be, will pay a precondition to exemption from such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder had no such withholding deduction or deduction been required, except that no Additional Amounts shall be payable:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holderwithholding; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Sources: Fiscal Agency Agreement (Thirty Eight Hundred Fund LLC), Fiscal Agency Agreement (Thirty Eight Hundred Fund LLC)
Additional Amounts. (a) All payments of principal ofmade by the Issuer or a Subsidiary Guarantor (each, and premium (if anya “Payor”) and interest on the Notes under, or under the with respect to, this Note, or a Subsidiary Guarantees and JV Subsidiary Guarantees Guarantee will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) unless the Payor is required to withhold or deduct such Taxes by law or by the official interpretation or administration thereof. If the Payor is required to withhold or deduct any amount for or on account of whatever nature Taxes imposed or levied by or within any jurisdiction in which the Companyon behalf of (i) Bermuda, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (Netherlands, and Netherlands Antilles or any political subdivision or taxing governmental authority of any thereof or therein having the power to tax, (ii) any jurisdiction from or through which payment on the Notes or the Subsidiary Guarantee is made, or any political subdivision or governmental authority thereof or therein)therein having the power to tax, includingor (iii) any other jurisdiction in which a Payor is organized or otherwise considered to be a resident for tax purposes, without limitation, or any political subdivision or governmental authority thereof or therein having the PRC power to tax (each, as applicable, any of the aforementioned being a “Relevant Taxing Jurisdiction”), ) from any payment made under or with respect to this Note or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredSubsidiary Guarantee, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Payor will pay such additional amounts (“Additional Amounts”) as will result in receipt by may be necessary so that the Holder of each Note of such amounts as would have been net amount received by such Holder had no each holder of this Note (including 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 requiredrequired to be withheld or deducted; provided, except however, that no the foregoing obligation to pay Additional Amounts shall be payabledoes not apply to:
(i) for or on account of:
(A1) any tax, duty, assessment or other governmental charge Taxes that would not have been so imposed but for:
(1) for the existence of any present or former connection between the Holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guaranteerelevant holder, including, without limitation, such Holder or beneficial owner relevant holder being or having been a national, domiciliary 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 thereintherein (or between a fiduciary, settler, 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 Relevant Taxing Jurisdiction other than a connection resulting from the mere ownership or holding of such Note or enforcement of rights thereunder or under the Subsidiary Guarantee or the receipt of payments in respect thereof;
(2) any Taxes that would not have been so imposed if the presentation holder had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such Note declaration of non-residence or other claim or filing for exemption is required by the applicable law of the Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the Relevant Taxing Jurisdiction, the relevant holder at that time has been notified (in cases accordance with the procedures set forth in which Section 12.1 of the Indenture) by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made);
(3) any Note presented for payment (where presentation is required) more than 30 days after the later of relevant payment is first made available for payment to the date on which holder (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented during such 30 day period);
(4) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, and interest onor interest, such Note became due and payable pursuant to on the terms thereof Notes or was made or duly provided for, except to under the extent that the Holder thereof would have been entitled to such Additional Amounts if it had presented such Note for payment on any date within such 30-day periodSubsidiary Guarantee;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B5) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C6) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) imposed on a payment to an individual and interest required to be made pursuant to the European Union Directive on the Notes or from payments under taxation of savings income (the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D“Directive”) any tax, assessment, withholding or deduction required which was adopted by sections 1471 through 1474 the ECOFIN Council of the Internal Revenue Code European Union (the Council of 1986EU finance and economic ministers) on June 3, as amended (“FATCA”), 2003 or any current law implementing or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAcomplying with, or any agreement with introduced in order to conform to, the U.S. Internal Revenue Service under FATCADirective; or
(E7) any combination Taxes which could have been avoided by the presentation (where presentation is required) of taxesthe relevant Note to another Paying Agent in a member state of the European Union. Such Additional Amounts will also not be payable where, duties, assessments or other governmental charges referred to in had the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in Note been the income under holder of the laws of a Relevant Jurisdiction or the jurisdiction through which payments are madeNote, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who it would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture by reason of any of clauses (1) to (7) inclusive above. Upon request, the Issuer will provide the Trustee with documentation satisfactory to the extent that, in Trustee evidencing the payment of Additional Amounts. Copies of such context, Additional Amounts are, were or would documentation will be payable in respect thereofmade available to the holders of the Notes upon request.
Appears in 2 contracts
Sources: Indenture (Central European Media Enterprises LTD), Indenture (Central European Media Enterprises LTD)
Additional Amounts. (ai) All payments of principal of, and premium (if any) and interest on due to be made by the Notes or Insurance Company to the Owner under the Subsidiary Guarantees and JV Subsidiary Guarantees terms of this Contract will be made without any withholding or deduction for, for or on account ofof any Taxes unless the Insurance Company has specified in Schedule A that they have agreed to pay Additional Amounts or such withholding or deduction is required by law. Subject to Section 4.3, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless if such withholding or deduction is required by law and the Insurance Company has specified in Schedule A that they have agreed to pay Additional Amounts, the Insurance Company will pay such Additional Amounts as may be required so that the amount received by the Trust or by regulation or governmental policy having the force a Beneficial Note Owner under its Note(s), as applicable (net of law. In the event that any such withholding or deduction is so requiredunder this Contract or any Note(s)), will equal the Company, a Surviving Person amount that would have been paid under this Contract or the applicable Subsidiary Guarantor or JV Subsidiary Guarantorunder any such Note(s), as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder had no such deduction or withholding or deduction been required.
(ii) Notwithstanding anything herein to the contrary, except that no the Insurance Company shall not be required to make any payment of any Additional Amounts shall be payable:
(iin accordance with Section 3.6(i) for or on account of:
(Aa) any tax, duty, assessment or other governmental charge that Taxes imposed which would not have been imposed but for:
for the existence of (1) the existence of any present or former connection between the Holder Trust or beneficial owner of such a Beneficial Note Owner and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary GuaranteeUnited States, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary citizen or resident of such Relevant Jurisdiction or treated as a resident thereof thereof, or being or having been physically present therein or engaged in a trade or business therein therein, or (2) the Trust's or such Beneficial Note Owner's status as incorporated therein, or having or having had a permanent establishment therein, or being or having been a controlled foreign corporation, a personal holding company, a passive foreign investment company, a corporation that has accumulated earnings to avoid United States federal income tax or a private foundation or other tax-exempt organization, or being or having been an actual or constructive owner of 10% or more of the total combined voting power of all shares of the Insurance Company;
(2b) any Taxes imposed which would not have been imposed but for the presentation by the Trust of such this Contract or by a Beneficial Note Owner of any related Note(s) to the Trust (in cases in which where presentation is required) for payment on a date more than 30 days after the later of date on which such payment becomes due and payable or the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or is duly provided for, whichever occurs later, except to the extent that the Holder thereof Trust or the Beneficial Note Owner would have been entitled to such Additional Amounts if it had this Contract or the Note(s), as the case may be, been presented on the last day of such Note for payment on any date within such 30-day periodperiod of [30 days];
(3c) any Taxes which are imposed or withheld solely by reasons of the failure of the Holder Trust or beneficial owner a Beneficial Note Owner to comply with a timely request of certification, identification or information reporting requirements concerning the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction the United States of the Trust or the jurisdiction through which payments are madeBeneficial Note Owner, if and to the extent that due and timely compliance with such request is required under by statute, by regulation of the tax laws United States Treasury Department, by judicial or administrative interpretation of such jurisdiction in order to reduce statute or eliminate any withholding regulation or deduction as by an applicable income tax treaty to which Additional Amounts would have otherwise been payable the United States is a party as a precondition to exemption from such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhereTaxes;
(Bd) any estate, inheritance, gift, sale, transferestate, personal property property, sales or similar tax, assessment or other governmental chargetransfer Taxes;
(Ce) any tax, assessment or other governmental charge Taxes that is are payable otherwise than by withholding or deduction from payments in respect of principal, premium this Contract or the related Notes;
(if anyf) and any Taxes which are imposed by reason of the Trust or a Beneficial Note Owner being or having been a bank for United States federal income tax purposes whose receipt of interest on the Notes or from payments under is described in section 881(c)(3)(A) of the Subsidiary Guarantees or JV Subsidiary Guarantees (if any)Code;
(Dg) any Taxes imposed by reason of payments on this Contract or the related Notes being treated as contingent interest described in section 871(h)(4) of the Code;
(h) any Taxes that would not have been imposed but for an election by the Trust or a Beneficial Note Owner the effect of which is to make payment in respect of the Notes subject to United States federal income tax;
(i) any tax, assessmentduty, withholding levy, assessment or deduction required by sections 1471 through 1474 governmental charge of any taxing authority other than the Internal Revenue Code of 1986, as amended (“FATCA”)United States, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, political subdivision thereof or any agreement with authority or agency therein or thereof having the U.S. Internal Revenue Service under FATCApower to tax; or
(Ej) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses items (Aa), (Bb), (Cc), (d), (e), (f), (g), (h) and (D); or
(iii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereofabove.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Sources: Funding Agreement (Ing Usa Annuity & Life Insurance Co), Funding Agreement (Ing Usa Annuity & Life Insurance Co)
Additional Amounts. (a) All payments of principal made under or with respect to the Notes shall be made free and clear of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, for or on account of, any present or future taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges of whatever nature charge (including related penalties, interest and other liabilities) (“Taxes”) imposed or levied by or within any jurisdiction in which on behalf of the Companygovernment of the Kingdom of Belgium, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (Luxembourg or any political subdivision or taxing any authority or agency therein or thereof having power to tax, or therein)any other jurisdiction in which the Issuer is organized or is otherwise resident for tax purposes, including, without limitation, the PRC or any jurisdiction from or through which payment is made (each, as applicable, a “Relevant Taxing Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction the Issuer is required to withhold or deduct Taxes by law or by regulation the interpretation or governmental policy having administration thereof. If the force of law. In the event that any such withholding or deduction Issuer is so requiredrequired to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will Issuer shall pay such additional amounts (“Additional Amounts”) as will result in receipt may be necessary so that the net amount received by the Holder Holders and beneficial owners of each Note of such amounts as would have been received by such Holder had no the Notes (including Additional Amounts) after such withholding or deduction will not be less than the amount the Holders and beneficial owners of the Notes would have received if such Taxes had not been requiredwithheld or deducted; provided, except however, that no the foregoing obligation to pay Additional Amounts shall be payabledoes not apply to:
(i) for or on account of:
(A1) any tax, duty, assessment or other governmental charge that Taxes which would not have been imposed but for:
for (1a) the existence of any present or former connection between the such Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note Holder, if such Holder is an estate, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder (or beneficial owner such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary 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;
therein or (2b) the presentation of such Note a note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which where presentation is required) for payment in on a date more than 30 days after (x) the Relevant Jurisdiction date on which such payment became due and payable or (y) the jurisdiction through date on which payments are madepayment thereof is duly provided for, unless such Note could not have been presented for payment elsewherewhichever occurs later;
(B2) any estate, inheritance, gift, salesales, excise, transfer, personal property tax or similar tax, assessment or other governmental charge;
(C3) any tax, assessment or other governmental charge that is Taxes which are payable otherwise than by withholding or deduction from payments of principal(or in respect of) principal of, premium or any interest on, the Notes;
(if any4) any Taxes that are imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of a Note with a request by the Issuer addressed to the Holder or such beneficial owner (A) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner 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 as a precondition to exemption from all or part of such Tax;
(5) any Taxes that are required to be withheld or deducted on a payment to an individual pursuant to European Union Council Directive 2003/48/EC regarding the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive;
(6) any Taxes that are required to be withheld or deducted on a payment to or on behalf of a Holder, who, at the time of such payment or withholding, was not an Eligible Investor for reasons within such Holder’s control. An Eligible Investor for the purposes of this section means any investor which is referred to in Article 4 of the Royal Decree of May 26, 1994 on the deduction of withholding tax and which holds the Notes in an exempt securities account in the X/N System; or
(7) any combination of items (1), (2), (3), (4), (5) and interest (6) above. The Issuer also will not be required to pay Additional Amounts:
(a) if the payment could have been made without deduction or withholding if the beneficiary of the payment had presented the Note for payment within 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 Holders or beneficial owners of the Notes would have been entitled to Additional Amounts had the Note been presented on the Notes or from payments under last day of the Subsidiary Guarantees or JV Subsidiary Guarantees (if any30-day period);
(Db) with respect to any taxpayment of principal of (or premium, assessmentif any, withholding on) or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), interest on such Note to any current Holder who is a fiduciary or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, partnership or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person Person other than the sole beneficial owner of any payment such payment, to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, or a member of that such a partnership or a the beneficial owner who of such payment would not have been entitled to such the Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the actual Holder thereof.of such Note; or
(bc) Whenever there if the Note is mentioned presented for payments by or on behalf of a Holder or beneficial owner who would be able to avoid a withholding or deduction by presenting the relevant Note to another paying agent in a Member State. If the Issuer will be obligated to pay Additional Amounts with respect to any context payment under or with respect to the Notes, the Issuer will deliver to the Trustee at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Issuer shall notify the Trustee promptly thereafter) an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount so payable. The Officers’ Certificate must also set forth any other information necessary to enable the paying agent to pay Additional Amounts to Holders of the Notes on the relevant payment date. Upon request, the Issuer will provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of principal ofthe Taxes with respect to which Additional Amounts are paid. Whenever in this Global Note there is mentioned, and in any premium context, the payment of principal; purchase prices in connection with a purchase of Notes; interest; or interest onany other amount payable on or with respect to any of the Notes, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention that reference shall be deemed to include payment of Additional Amounts provided for in this Indenture section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Issuer 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 any jurisdiction from the execution, delivery, enforcement or registration of the Notes, the Indenture or any other related document or instrument, or the receipt of any payments with respect to the Notes, excluding taxes, charges or similar levies imposed by any jurisdiction outside of Luxembourg, Belgium, the jurisdiction of incorporation of any successor of the Issuer or any jurisdiction in which a paying agent is located, and the Issuer will agree to indemnify the Holders or the Trustee for any such taxes paid by the Holders or the Trustee. The preceding provisions shall apply mutatis mutandis to any jurisdiction in which any successor to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 2 contracts
Sources: Indenture (Delhaize Group), Indenture (Delhaize Group)
Additional Amounts. (a) All payments of principal ofprincipal, premium, if any, and premium (if any) and interest on made by the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will Company in respect of any Security shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (collectively, “Taxes”) imposed or levied by or within the British Virgin Islands, the Cayman Islands, the PRC or any jurisdiction in which where the Company, Company is otherwise considered by a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or taxing authority to be a resident for tax purposes (or in each case, including any political subdivision or taxing any authority therein or thereof or therein), including, without limitation, having power to tax) (the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction of such Taxes is required by law or by regulation or governmental policy having the force of law. In If the event that any Company is required to make such withholding or deduction is so requireddeduction, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will Company shall pay such additional amounts (“Additional Amounts”) as will result in receipt by the each Holder of each Note Securities of such amounts as would have been received by such Holder had no such withholding or deduction of such Taxes been required, except that no such Additional Amounts shall be payable:
(i) for or on account of:
(A) in respect of any tax, duty, assessment or other governmental charge such Taxes that would not have been imposed imposed, deducted or withheld but for:
(1) for the existence of any connection (whether present or former connection former) between the Holder or beneficial owner of such Note a Security and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note Security or the receipt of payments thereunder receiving principal, premium, if any, or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, interest in respect thereof (including such Holder or beneficial owner being or having been a national, domiciliary 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);
(2ii) the presentation in respect of such Note any Security presented for payment (in cases in which where presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided forrelevant date, except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had presented such Note on presenting the same for payment on any date within the last day of such 30-day period. For this purpose, the “relevant date” in relation to any Security means the later of (a) the due date for such payment or (b) the date such payment was made or duly provided for;
(3iii) the in respect of any Taxes that would not have been imposed, deducted or withheld but for a failure of the Holder or beneficial owner of a Security to comply with a timely request of by the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor Company addressed to the Holder or beneficial owner to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or;
(4iv) the presentation in respect of such Note any Taxes imposed as a result of a Security being presented for payment (in cases in which where presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, unless such Note Security could not have been presented for payment elsewhere;
(Bv) in respect of any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental chargeTaxes;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(iivi) to any Holder of a Holder Security that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof;
(vii) in respect of any such Taxes withheld or deducted from any payment under or with respect to any Security where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECONFIN Council meeting of November 26-27, 2000 on the taxation of saving income or any law implementing or complying with, or introduced in order to conform to, any such Directive;
(viii) any such Taxes payable otherwise than by deduction or withholding from payments under or with respect to any Security; or
(ix) any combination of Taxes referred to in the preceding clauses (i) through (viii) above.
(b) Whenever there In the event that any withholding or deduction for or on account of any Taxes is mentioned in any context the required and Additional Amounts are payable with respect thereto, at least 10 days prior to each date of payment of principal of, premium, if any, or interest on the Securities, the Company shall furnish to the Trustee and the Paying Agent, if other than the Trustee, an Officers’ Certificate specifying the amount required to be withheld or deducted on such payments to such Holders, certifying that the Company shall pay such amounts required to be withheld to the appropriate governmental authority and certifying to the fact that the Additional Amounts will be payable and the amounts so payable to each Holder, and that the Company will pay to the Trustee or such Paying Agent the Additional Amounts required to be paid; provided that no such Officers’ Certificate will be required prior to any date of payment of principal of, premium, if any, or interest on such Securities if there has been no change with respect to the matters set forth in a prior Officers’ Certificate. The Trustee and each Paying Agent may rely on the fact that any Officers’ Certificate contemplated by this Section 6.05(b) has not been furnished as evidence of the fact that no withholding or deduction for or on account of any Taxes is required. The Company covenants to indemnify the Trustee and any premium Paying Agent for and to hold them harmless against any loss, liability or expense reasonably incurred without fraudulent activity, gross 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 such Officers’ Certificate furnished pursuant to this Section 6.05(b) or on the fact that any Officers’ Certificate contemplated by this Section 6.05(b) has not been furnished.
(c) Whenever in this Indenture there is mentioned, in any context, the payment of principal, premium, if any, or interest on, in respect of any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeSecurity, such mention shall be deemed to include the payment of Additional Amounts provided for in this Indenture Indenture, to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to this Indenture.
(d) Sections 6.05(a), (b) and (c) shall apply in the same manner with respect to the jurisdiction in which any successor Person to the Company is organized or resident for tax purposes or any authority therein or thereof having the power to tax (a “Successor Jurisdiction”), substituting such Successor Jurisdiction for the Relevant Jurisdiction.
(e) The obligation of the Company to make payments of Additional Amounts under this Section 6.05 shall survive any termination, defeasance or discharge of this Indenture.
Appears in 2 contracts
Additional Amounts. (a) All payments Amounts to be paid on any series of principal of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees Senior Debt Securities will be made without deduction or withholding or deduction for, or on account of, any and all present or and future income, stamp and other taxes, levies, imposts, duties, assessments charges or governmental charges of whatever nature imposed fees imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which on behalf of the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (United Kingdom or any political subdivision or taxing authority thereof or therein), including, without limitation, therein having the PRC power to tax (each, as applicable, a the “Relevant Taxing Jurisdiction”), or any jurisdiction through which payments are made, unless such deduction or withholding or deduction is required by law or by regulation or governmental policy having the force of law. In If at any time a Taxing Jurisdiction requires the event that any Company to make such withholding deduction or deduction is so requiredwithholding, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Company will pay such additional amounts with respect to interest only on, the Senior Debt Securities (“Additional Amounts”) as will result that are necessary in receipt by order that the Holder net amounts of each Note interest paid to the Holders of such Senior Debt Securities of the particular series, after the deduction or withholding, shall equal the amounts as of interest only which would have been received by such Holder payable on the Senior Debt Securities if the deduction or withholding had no such withholding or deduction not been required. However, except that no Additional Amounts shall be payablethis will not apply to any such tax, levy, impost, duty, charge or fee, which would not have been deducted or withheld but for the fact that:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or the beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are maderelevant Senior Debt Security is a domiciliary, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary national or resident of such Relevant Jurisdiction of, or treated as a resident thereof engaging in business or being or having been physically present or engaged in a trade or business therein or having or having had maintaining a permanent establishment therein;or is physically present in, the Taxing Jurisdiction or otherwise has some connection with the Taxing Jurisdiction other than the holding or ownership of the relevant Senior Debt Security, or the collection of any payment of (or in respect of) principal of, or any interest, or other payment on, any Senior Debt Security of the relevant series,
(2ii) except in the presentation case of such Note winding-up in the United Kingdom, the relevant Senior Debt Security is presented (in cases in which where presentation is required) for payment in the United Kingdom,
(iii) the relevant Senior Debt Security is presented (where presentation is required) for payment more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the Holder thereof would have been entitled to such the Additional Amounts if it had presented such Note on presenting the same for payment on any date within such 30-at the close of that 30 day period;,
(3iv) the failure Holder or the beneficial owner of the relevant Senior Debt Security or the beneficial owner of any payment of (or in respect of) principal of or any interest or other payment on, the relevant Senior Debt Security failed to comply with a request of the Company or its liquidator or other authorized person addressed to the Holder (x) to provide information concerning the nationality, residence or identity of the Holder or the beneficial owner or (y) to comply with make any declaration or other similar claim to satisfy any requirement, which in the case of (x) or (y), is required or imposed by a timely request statute, treaty, regulation or administrative practice of the CompanyTaxing Jurisdiction as a precondition to exemption from all or part of the tax, a Surviving Personlevy, impost, duty, charge or fee,
(v) the deduction or withholding is imposed by reason of any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to agreement with the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or U.S. Internal Revenue Service in connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through Sections 1471-1474 of the U.S. Internal Revenue Code of 1986, as amended and the U.S. Treasury regulations thereunder (“FATCA”), any current intergovernmental agreement between the United States and the United Kingdom or future Treasury Regulations any other jurisdiction with respect to FATCA, or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCAimplementing, or relating to, FATCA or any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAagreement, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(Evi) any combination of taxessubclauses (i) through (v) above, duties, assessments or other governmental charges referred nor shall Additional Amounts be paid with respect to in any interest only on the preceding clauses (A), (B), (C) and (D); or
(ii) Senior Debt Securities to a any Holder that who is a fiduciary, fiduciary or partnership or any person other than the sole beneficial owner of any such payment to the extent that such payment would be required by the laws of any Taxing Jurisdiction to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, purposes of a beneficiary or partner or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a beneficial owner who would not have been entitled to such Additional Amounts Amounts, had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
Holder. With respect to any deduction or withholding made by any of the Company, the Trustee, the Paying Agent or another withholding agent from any amount payable on, or in respect of, the Senior Debt Securities in the events described in clauses (bi) through (vi) above, the amounts so deducted or withheld shall be treated as having been paid to the holder of the Senior Debt Securities, and no additional amounts will be paid on account of any such deduction or withholding. None of the Company, the Trustee, the Paying Agent or another withholding agent shall have any liability in connection with their compliance with any such withholding obligation under applicable law. Whenever in this Senior Debt Securities Indenture there is mentioned mentioned, in any context context, the payment of principal of, and any premium or interest on, in respect of, any Note or under Senior Debt Security of any Subsidiary Guarantee or JV Subsidiary Guarantee, series such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to the provisions of this Section and as if express mention of the payment of Additional Amounts (if applicable) were made in any provisions hereof where such express mention is not made. Upon request from the Trustee or a paying agent, the Company shall provide information reasonably necessary and readily available in order to enable to the Trustee or paying agent to determine whether any withholding obligations under FATCA apply. Neither the Company, the Trustee or a paying agent shall have any liability in connection with the Company’s or Trustee’s or paying agent’s compliance with any such withholding obligation under applicable law.
Appears in 2 contracts
Sources: Twenty Second Supplemental Indenture (Lloyds Banking Group PLC), Twenty First Supplemental Indenture (Lloyds Banking Group PLC)
Additional Amounts. (a) All Any and all payments of principal ofmade by the Company to the Holders, and premium (if any) and interest on under or with respect to the Notes or under the Subsidiary Guarantees and JV 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 taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges of whatever nature charge (including any interest or penalties with respect thereto) imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (on behalf of Mexico or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC by any authority or agency therein or thereof having power to tax (each, as applicable, a hereinafter “Relevant JurisdictionMexican Withholding Taxes”), or any jurisdiction through which payments are made, unless such the withholding or deduction of such Mexican Withholding Taxes is required by law or by regulation or governmental policy having the force of lawadministration thereof. In the event that any such withholding Mexican Withholding Taxes are required to be so withheld or deduction is so requireddeducted, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Company will (i) pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note Holders of such amounts as would have been received by such Holder them had no such withholding or deduction been required, except that (ii) deduct or withhold such Mexican Withholding Taxes and (iii) remit the full amount so deducted or withheld to the relevant taxing or other authority. Any payment of Additional Amounts will be treated, for Mexican tax purposes, as additional interest. Notwithstanding the foregoing, no such Additional Amounts shall be payable:
(i) payable for or on account of:
(Aa) any tax, duty, assessment or other governmental charge that Mexican Withholding Taxes which would not have been imposed or levied on a Holder but for:
(1) for the existence of any present or former connection between the Holder or beneficial owner of such Note the Notes and the Relevant Jurisdiction Mexico or the jurisdiction through which payments are made, other than merely holding such Note any political subdivision or the receipt of payments thereunder territory or under a Subsidiary Guarantee possession thereof or JV Subsidiary Guaranteearea subject to its jurisdiction, including, without limitation, such Holder or beneficial owner (i) being or having been a national, domiciliary citizen or resident of such Relevant Jurisdiction thereof, (ii) maintaining or treated as a resident thereof having maintained an office, permanent establishment, fixed base or branch therein, or (iii) being or having been physically present or engaged in a trade or business therein therein, except for a connection solely arising from the mere ownership of, or having receipt of payment under, such Note or having had a permanent establishment thereinthe exercise or enforcement of rights under this Indenture;
(2b) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal ofexcept as otherwise provided, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, salesales, transfer, or personal property or similar tax, assessment or other governmental charge;
(Cc) any taxMexican Withholding Taxes that are imposed or levied by reason of the failure by the Holder or beneficial owner of such Note to comply with any certification, assessment identification, information, documentation, declaration or other governmental charge that reporting requirement which is payable otherwise than required or imposed by withholding a statute, treaty, regulation, general rule or deduction from payments of principaladministrative practice as a precondition to exemption from, premium (if any) and interest on or reduction in the Notes or from payments under rate of, the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessmentimposition, withholding or deduction required by sections 1471 through 1474 of any Mexican Withholding Taxes; provided that at least 60 days prior to (i) the first payment date with respect to which the Company shall apply this clause (c) and, (ii) in the event of a change in such certification, identification, information, documentation, declaration or other reporting requirement, the first payment date subsequent to such change, the Company shall have notified the Trustee, in writing, that the Holders or beneficial owners of the Internal Revenue Code Notes will be required to provide such certification, identification, information or documentation, declaration or other reporting;
(d) any Mexican Withholding Taxes that are imposed or levied by reason of 1986the failure by the Holder or beneficial owner of such Note to timely comply (subject to the conditions set forth below) with a written request by or on behalf of the Company to provide information, as amended documentation or other evidence concerning the nationality, residence, identity, or registration with the Ministry of Finance and Public Credit of the Holder or beneficial owner of such Note that is necessary from time to time to determine the appropriate rate of deduction or withholding of Mexican Withholding Taxes applicable to such Holder or beneficial owner; provided that at least 60 days prior to the first payment date with respect to which the Company shall apply this clause (“FATCA”d), any current the Company shall have notified the Trustee, in writing, that such Holders or future Treasury Regulations or rulings promulgated thereunderbeneficial owners of the Notes will be required to provide such information, any law, regulation documentation or other official guidance enacted evidence;
(e) the presentation of such Note (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 to the extent that the Holder or the beneficial owner of such Note would have been entitled to Additional Amounts in respect of such Mexican Withholding Taxes on presenting such Note for payment on any jurisdiction implementing FATCA, date during such 30-day period;
(f) any intergovernmental agreement between the United States and any Mexican Withholding Taxes that are payable only by a method other jurisdiction to implement FATCA, than withholding or any agreement with the U.S. Internal Revenue Service under FATCAdeduction; or
(Eg) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses item (Aa), (Bb), (C) and c), (Dd); or
, (ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciarye), or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof(f) above.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Sources: Indenture (Kansas City Southern De Mexico, S.A. De C.V.), Indenture (Kansas City Southern)
Additional Amounts. (a) All payments made by or on behalf of principal of, and premium (if any) and interest on the Issuers or any Guarantor under or with respect to the Notes or under the Subsidiary Guarantees and JV 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 taxes, duties, assessments or governmental charges of whatever nature imposed or levied Taxes unless required by or within law. If any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required for or on account of Taxes imposed by law a Relevant Taxing Jurisdiction from any payment made under or by regulation with respect to the Notes or governmental policy having the force under any Guarantee (including payments of law. In the event that any such withholding principal, redemption price, interest or deduction is so requiredpremium (if any)), the Company, a Surviving Person Issuers or the applicable Subsidiary Guarantor or JV Subsidiary such Guarantor, as the case may be, will pay (together with such payments) such additional amounts (“Additional Amounts”) as will result in receipt by may be necessary so that the Holder of each Note of such amounts as would have been net amount received by such Holder had no each beneficial owner of Notes (including Additional Amounts) after such withholding or deduction will equal the amount the beneficial owner would have received if such Taxes had not been requiredwithheld or deducted; provided, except however, that no Additional Amounts shall will be payablepayable with respect to:
(i) for or on account of:
(A) any taxTax, duty, assessment or other governmental charge that to the extent such Tax would not have been imposed but for:
(1) for the existence of any actual or deemed present or former connection between the Holder holder or the beneficial owner of such Note Notes and the Relevant Taxing Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner (including being or having been a national, domiciliary citizen or resident of such Relevant Jurisdiction or treated as of, carrying on a resident thereof or business in, being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereinin, the Relevant Taxing Jurisdiction) other than a connection arising solely from the acquisition, ownership, holding or disposition of the Notes, the enforcement of rights under the Notes or any Guarantee or the receipt of payments under or in respect of the Notes or any Guarantee;
(2ii) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal ofany Tax, premium, if any, and interest on, such 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 date within such 30-day period;
(3) Tax is imposed or withheld as a result of the failure of the Holder holder or beneficial owner to comply with a timely request of the CompanyNotes to satisfy any certification, a Surviving Person, any Subsidiary Guarantor identification or any JV Subsidiary Guarantor addressed to other reporting requirements concerning the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any the Relevant Taxing Jurisdiction of such holder or beneficial owner which is required by applicable law, treaty, regulation or administrative practice of the jurisdiction through which payments are madeRelevant Taxing Jurisdiction as a precondition to exemption from, if and or reduction in the rate of deduction or withholding of, all or part of such Tax (including, without limitation, a certification that the holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction), but in each case, only to the extent that due and timely compliance with such request holder or beneficial owner is required under the tax laws of legally eligible to provide such jurisdiction in order to reduce certification or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; orother documentation;
(4iii) any Tax that would not have been imposed if the presentation of such Note Notes (in cases in which where presentation is required) for payment in had occurred within 30 days after the Relevant Jurisdiction date such payment was due and payable or was duly provided for, whichever is later (except to the jurisdiction through which payments are made, unless such Note could not extent that the holder or beneficial owner would have been entitled to Additional Amounts had the note been presented for payment elsewherewithin such 30-day period);
(Biv) any estate, inheritance, gift, salevalue added, transfer, personal property sales or similar tax, assessment or other governmental chargeTax;
(Cv) any taxTax, assessment to the extent such Tax imposed in respect of a holder or beneficial owner and required to be withheld or deducted pursuant to the Luxembourg law of December 23, 2005, as amended, introducing in Luxembourg a 20% withholding tax as regards Luxembourg resident individuals;
(vi) any Tax that could have been avoided by the presentation of Notes (where presentation is required) for payment to another paying agent in a member state of the European Union;
(vii) any Tax payable other governmental charge that is payable otherwise than by deduction or withholding from payments under, or with respect to, the Notes or the Guarantee;
(viii) any withholding or deduction required pursuant to Sections 1471 through 1474 of the Code as of the Issue Date (or any amended or successor version), any regulations or agreements thereunder, official interpretations thereof, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code; or
(ix) any combination of clauses (i) through (viii) above.
(b) The applicable withholding agent will (i) make any required withholding or deduction; and (ii) remit the full amount deducted or withheld to the relevant Taxing Authority in accordance with applicable law. The Issuers or any Guarantor, as applicable, will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Second Lien Trustee. If certified copies of such tax receipts are not reasonably obtainable, the Issuers or such Guarantor, as applicable, shall provide the Second Lien Trustee with other evidence of payment reasonably satisfactory to the Second Lien Trustee. Such certified copies or other evidence shall be made available to holders upon request.
(c) Each of the Issuers and the Guarantors will indemnify and hold harmless each holder and beneficial owner from and against any Taxes withheld or deducted (other than Taxes excluded by clauses (i) through (ix) above) that are levied or imposed on a holder or beneficial owner (x) as a result of payments made under or with respect to the Notes or (y) with respect to any indemnification payments under the foregoing clause (x) or this clause (y), such that the net amount received by such holder or beneficial owner after such indemnification payments will not be less than the net amount the holder or beneficial owner would have received if the Taxes described in clauses (x) and (y) above had not been imposed.
(d) Whenever in this Indenture there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, premium (if any) and or interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, amount payable under or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to any of the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeNotes, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The Issuers will pay any present or future stamp, issue, registration, court or documentary Taxes, or any other excise, property or similar Taxes, that arise in any jurisdiction from the execution, issuance, delivery, registration or enforcement of the Notes, any Guarantee, this Indenture, or any other document or instrument referred to therein, or the receipt of any payments with respect to the Notes or the Guarantees (“Documentary Taxes”); provided that the Issuer will not be liable for any Luxembourg registration duties, which would become payable as a result of the registration, by any holder, of the documents relating to the Notes, any Guarantee, this Indenture, or any other document or instrument referred to herein or therein, when such registration is not required to enforce that holder’s rights under the documents relating to the Notes, any Guarantee, this Indenture, or any other document or instrument referred to herein or therein.
(f) The obligation to pay Additional Amounts and Documentary Taxes under the terms and conditions described above will survive any termination, defeasance or discharge of this Indenture, and will apply mutatis mutandis to any successor to the Issuers or any Guarantor and to any jurisdiction in which any such successor is incorporated, organized, resident or engaged in business for tax purposes, or any jurisdiction from or through which any such successor makes payment on the Notes or any Guarantee, and any political subdivision or Taxing Authority thereof or therein.
Appears in 2 contracts
Sources: Indenture (Mallinckrodt PLC), Indenture (Mallinckrodt PLC)
Additional Amounts. (a) All payments of principal of, and premium (if any) or in respect of, principal of and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will Securities shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature any kind whatsoever imposed or levied by or within any jurisdiction in which on behalf of the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (United Kingdom or any political subdivision or taxing any Taxing authority thereof or thereintherein ("U.K. Withholding Taxes"), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is U.K. Withholding Taxes are required by law the United Kingdom or by regulation any such subdivision or governmental policy having the force of lawauthority to be withheld or deducted. In the event that any such of (i) a Change in Tax Law or (ii) a failure by the Company to list or maintain a listing of the Securities on a "recognized stock exchange" (within the meaning of Section 841 of the United Kingdom Income and Corporation Taxes Act 1988) (a "Listing Failure"), the effect of which, in each case, is to require the withholding or deduction is so requiredby the Company or the Guarantors pursuant to the Securities or the Guarantees, respectively, of any amount for U.K. Withholding Taxes that would not have been required to be withheld or deducted absent such event, the Company, a Surviving Person Company or the applicable Subsidiary Guarantor or JV Subsidiary GuarantorGuarantors, as the case may be, will pay such additional amounts (“"Additional Amounts”") as will on the Securities that result (after deduction or withholding of such U.K. Withholding Taxes, including any deduction or withholding of such U.K. Withholding Taxes with respect to such Additional Amounts) in receipt by the payment to each Holder of each Note of such a Security the amounts as that would have been received by payable in respect of such Holder Security had no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(i) so payable for or on account of:
(Aa) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
for (1) the existence of any present or former connection between the a Holder or the beneficial owner of a Security (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note Holder, if such Holder is an estate, trust, partnership or corporation) and the Relevant Jurisdiction United Kingdom or the jurisdiction through which payments are made, any political subdivision or taxing authority thereof or therein (other than merely holding such Note mere ownership of, or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guaranteepayment under, such Security) including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a nationalresident, domiciliary or resident of such Relevant Jurisdiction or treated as a resident thereof national of, or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment in, the United Kingdom or any political subdivision or any Taxing authority thereof or therein;
, (2) the presentation of a Security or a Guarantee for payment in the United Kingdom or any political subdivision or any Taxing authority thereof or therein, unless such Note Security or Guarantee could not have been presented elsewhere, or (in cases in which 3) the presentation is required) of a Security or a Guarantee for payment on a date more than 30 days after the later of the date on which the such payment in respect of the principal of, premium, if any, and interest on, such Note Security became due and payable pursuant to the terms thereof or was made or duly provided for, whichever occurs later, except to the extent that the Holder thereof of such Security or such Guarantee would have been entitled to such Additional Amounts if it had presented such Note Security or such Guarantee for payment on any date within such 30-day period;.
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(Bb) any estate, inheritance, gift, sale, transfer, personal property or similar tax, duty, assessment or governmental charge;
(c) any tax, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of a Security to comply, or the delay in complying, with a request in writing of the Company or a Guarantor (which request shall be furnished to the Trustee)
(1) to provide information concerning the nationality, residence, place of establishment or identity of the Holder or such beneficial owner or (2) to make any declaration or other similar claim or satisfy any information or reporting requirement which, in the case of (1) or (2), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from or reduction of all or part of such tax, duty, assessment or other governmental charge;
(Cd) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding or deduction resulting from payments a Listing Failure with respect to any Security issued in the form of principal, premium (if any) and interest on a certificated Security pursuant to the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any)terms of this Indenture;
(De) any tax, assessmentduty, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation assessment or other official guidance enacted in governmental charge which is imposed on a payment to any jurisdiction implementing FATCAholder and is required to be made pursuant to any European Union Directive 2003/48 on the taxation of savings income proposed to come into effect from July 1, any intergovernmental agreement between 2005, at the United States and any other jurisdiction to implement FATCAearliest, or any agreement with the U.S. Internal Revenue Service under FATCAlaw complying with, or introduced in order to conform to, such Directive; or
(Ef) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses items (Aa), (Bb), (Cc), (d) and (D)e) above; or
(ii) nor shall Additional Amounts be paid with respect to a any payment of the principal of, or any interest on, any Security or Guarantee to any Holder that who is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of any payment such Security or Guarantee, to the extent that such payment would be required by the laws of the United Kingdom (or any political subdivision or relevant Taxing authority thereof or therein) to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, purposes of a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
(b) of the Security. At least 30 days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Company or a Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company or the Guarantor will deliver to the Trustee an Officer's 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 Trustee to pay such Additional Amounts to Holders on the payment date. Whenever in this Indenture there is mentioned mentioned, in any context context, the payment of principal ofprincipal, and Redemption Price, interest or any premium other amount payable under or interest on, with respect to any Note Security or under the net proceeds received on the sale or exchange of any Subsidiary Guarantee or JV Subsidiary GuaranteeSecurity, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to this Indenture.
Appears in 2 contracts
Sources: Indenture (Amvescap PLC/London/), Indenture (Amvescap PLC/London/)
Additional Amounts. (a) All payments of principal made under or with respect to the Notes or the Note Guarantees shall be made free and clear of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, for or on account of, any present or future taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges of whatever nature charge (including related penalties, interest and other liabilities) (hereinafter, “Taxes”) imposed or levied by or within on behalf of (1) the government of the United Kingdom, (2) the United States, (3) any other jurisdiction in which the Company, a Surviving Person Issuer or an applicable Subsidiary Guarantor or JV Subsidiary any Note Guarantor is organized or is otherwise resident for tax purposes purposes, (4) any jurisdiction from or through which payment is made and (5) any political subdivision or taxing governmental authority thereof or therein), including, without limitation, agency of or in any of the PRC foregoing having the power to tax (each, as applicable, a “Relevant Taxing Jurisdiction”), unless the Issuer or any jurisdiction through which payments are made, unless such withholding or deduction Note Guarantor is required to withhold or deduct Taxes by law or by regulation the interpretation or governmental policy having administration thereof.
(b) If the force of law. In the event that any such withholding Issuer or deduction a Note Guarantor is so requiredrequired to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or the Note Guarantees, the Company, a Surviving Person Issuer or the applicable Subsidiary Note Guarantor or JV Subsidiary Guarantor, as the case may be, will shall pay such additional amounts (“Additional Amounts”) as will result in receipt may be necessary so that the net amount received by the Holder of each Note of such amounts as would have been received by such Holder had no Holders and beneficial owners (including Additional Amounts) after such withholding or deduction will not be less than the amount the Holders and beneficial owners would have received if such Taxes had not been requiredwithheld or deducted; provided, except however, that no the foregoing obligation to pay Additional Amounts shall be payabledoes not apply to:
(i) for or on account of:
(A1) any tax, duty, assessment or other governmental charge Taxes that would not have been so imposed but for:
(1) for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of such Note and power over, the Relevant Jurisdiction relevant Holder or beneficial owner, if the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such relevant Holder or beneficial owner being is an estate, nominee, trust, partnership or having been a national, domiciliary or resident corporation) and the Relevant Taxing Jurisdiction (other than the mere receipt of such Relevant Jurisdiction payment or treated as a resident thereof the ownership or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereinholding of such Note);
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, salesales, excise, transfer, personal property Tax or similar tax, assessment or other governmental chargeTax;
(C3) any tax, assessment or other governmental charge that is Taxes which are payable otherwise than by withholding or deduction from payments of principal(or in respect of) principal of, or any premium or interest on, the Notes;
(if any4) any Taxes that are imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of a Note with a request by the Issuer addressed to the Holder or such beneficial owner (A) to provide information concerning the nationality, residence, identity or present or former connection with a Relevant Taxing Jurisdiction of the Holder or such beneficial owner or (B) to make any declaration or other similar claim or satisfy any certification, 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 as a precondition to exemption from all or part of such Tax;
(5) any withholding or deduction imposed on a payment to an individual required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income or any law implementing or introduced in order to conform to, such Directive;
(6) any combination of items (1), (2), (3), (4) and interest (5) above;
(7) any Taxes that would not have been so imposed, withheld or deducted if the beneficiary of the payment had presented the Note for payment within 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 such beneficiary would have been entitled to Additional Amounts had the Note been presented on the Notes or from payments under last day of the Subsidiary Guarantees or JV Subsidiary Guarantees (if any30-day period);
(D) 8) any tax, assessment, withholding payment under or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), with respect to a Note to any current Holder who is a fiduciary or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, partnership or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person Person other than the sole beneficial owner of any payment such payment, to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, or a member of that such a partnership or a the beneficial owner who of such payment would not have been entitled to such the Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the actual Holder thereofof such Note; or
(9) any withholding or deduction that is imposed on a Note presented for payments by or on behalf of a Holder or beneficial owner who would be able to avoid a withholding or deduction by presenting the relevant Note to another Paying Agent in a Member State.
(bc) Whenever there is mentioned If the Issuer or any Note Guarantor will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or the relevant Note Guarantee, as applicable, the Issuer or such Note Guarantor, as applicable, will deliver to the Trustee at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Issuer or the Note Guarantor, as applicable, shall notify the Trustee promptly thereafter but in no event later than two Business Days prior to the date of payment) notice of payment in the form of an Officer’s Certificate. In either circumstance, the Officer’s Certificate must state that Additional Amounts will be payable and the amount so payable. The Officer’s Certificate must also set forth any context other information necessary to enable the Paying Agent to pay Additional Amounts to Holders and beneficial owners on the relevant payment date.
(d) The Issuer will (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer will provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of principal of, the Taxes with respect to which Additional Amounts are paid. Certificated copies of such receipts and such other documentation shall be made available to Holders upon request and will be made available at the offices of the Paying Agent if the Notes are then listed on the Luxembourg Stock Exchange. The Issuer will attach to such copies an Officer’s Certificate stating (x) that the amount of withholding Taxes evidenced by such copies was paid in connection with any premium payment made under or interest on, with respect to the Notes or any Note Guarantee and (y) the amount of such withholding Taxes paid per £1,000 or under $1,000 of Notes, as applicable.
(e) Whenever in this Indenture there is mentioned, in any Subsidiary Guarantee context, the payment of principal, purchase prices in connection with a purchase of Notes, interest, or JV Subsidiary any other amount payable on or with respect to any of the Notes or any Note Guarantee, such mention that reference shall be deemed to include payment of Additional Amounts provided for in this Indenture section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The Issuer or a Note Guarantor 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 any jurisdiction from the execution, delivery, enforcement or registration of the Notes, the Note Guarantees, this Indenture or any other related document or instrument, or the receipt of any payments with respect to the Notes or the Note Guarantees, excluding taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction, and the Issuer will agree to indemnify the Holders or the Trustee for any such taxes paid by the Holders or the Trustee.
(g) The preceding provisions of this Section 2.13 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer or any Note Guarantor is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 2 contracts
Additional Amounts. (a) All payments of principal made by the Issuer or the Guarantors under or with respect to a Security shall be made free and clear of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, for or on account of, any present or future taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or within on behalf of the government of the United States, the United Kingdom or any other jurisdiction in which the Company, a Surviving Person Issuer or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is the Guarantors are organized or resident for tax purposes (purposes, or within or through which payment is made, or any political subdivision or taxing authority or agency thereof or thereintherein (any of the aforementioned being a “Taxing Jurisdiction”), including, without limitationunless the Issuer or the Guarantors is or are required to withhold or deduct any such Taxes by law or by the interpretation or administration thereof.
(b) If the Issuer or the Guarantors are so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to a Security or the Guarantees, the PRC (eachIssuer or the Guarantors, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will shall pay such additional amounts (“Additional Amounts”) as will result in receipt may be necessary so that the net amount received by the Holder of each Note of such amounts as would have been received by such Holder had no Security (including Additional Amounts) after such withholding or deduction of such Taxes will not be less than the amount such Holder would have received if such Taxes had not been requiredrequired to be withheld or deducted; provided, except however, that no notwithstanding the foregoing, Additional Amounts shall not be payablepaid with respect to:
(i) for or on account of:
(A1) any tax, duty, assessment or other governmental charge Taxes that would not have been imposed so imposed, deducted or withheld but for:
(1) for the existence of any present or former connection between the Holder or beneficial owner of such Note and a Security (or between a fiduciary, settler, beneficiary, member or shareholder of, or possessor of power over, the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Security, if the Holder or beneficial owner is an estate, nominee, trust, partnership or corporation) and the relevant Taxing Jurisdiction (other than the mere receipt of such payment or treated as a resident thereof the ownership or being holding of the execution, delivery, registration or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereinenforcement of such Security);
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal ofsubject to Section 4.21(f), premiumany estate, if anyinheritance, and interest ongift, such Note became due and payable pursuant to the terms thereof sales, excise, transfer or was made personal property tax or duly provided forsimilar tax, 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 date within such 30-day periodassessment or governmental charge;
(3) the failure of any Taxes that would not have been so imposed, deducted or withheld if the Holder or beneficial owner to comply with a timely request of the CompanySecurity or beneficial owner of any payment on such Security had (i) made a declaration of non-residence, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed other claim or filing for exemption, to which it is entitled or (ii) complied with any certification, identification, information, documentation or other reporting requirement concerning the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner of such Security or any Relevant payment on such note (provided that (x) such declaration of non-residence or other claim or filing for exemption or such compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of the imposition, deduction or withholding of, such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption or such compliance is required under the applicable law of the Taxing Jurisdiction, the relevant Holder at that time has been notified by the Company, the Guarantors or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption or such compliance is required to be made);
(4) a withholding or deduction imposed on a payment to an individual which is required to be made pursuant to the EU Directive on the taxation of savings income which was adopted by the ECOFIN Council on June 3, 2003, or any law implementing or complying with, or introduced in order to conform to, such Directive;
(5) any Taxes that would not have been so imposed, deducted or withheld if the beneficiary of the payment had presented the Security for payment within 30 days after the date on which such payment or such Security became due and payable or the jurisdiction through date on which payments are madepayment thereof is duly provided for, if and whichever is later (except to the extent that due and timely compliance with such request is required under the tax laws Holder would have been entitled to Additional Amounts had the Security been presented on the last day of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any30-day period);
(D6) any tax, assessment, withholding payment under or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) respect to a Security to any Holder that is a fiduciary, fiduciary or partnership or person any Person other than the sole beneficial owner of any such payment or Security, to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, or a member of that such partnership or a the beneficial owner who of such payment or Security would not have been entitled to such the Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the actual Holder thereofof such Security;
(7) a Security presented for payment by or on behalf of a Holder who or that would have reasonably been able to avoid such withholding or deduction by presenting the relevant Security to another paying agent maintained by the Issuer in a Member State of the European Union; or
(8) any combination of items (1) through (7) above. The foregoing provisions shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor Person to the Issuer or the Guarantors.
(bc) Whenever there is mentioned The Issuer or the Guarantors shall make any applicable withholding or deduction and remit the full amount deducted or withheld to the relevant authority in any context accordance with applicable law. The Issuer or the Guarantors shall furnish to the Trustee, within 30 days after the date the payment of principal ofany Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts or, if such tax receipts are not reasonably available to the Issuer or the Guarantors, such other documentation that provides reasonable evidence of such payment by the Issuer or the Guarantors. Copies of such receipts or other documentation shall be made available to the Holders or the Paying Agents, as applicable, upon request.
(d) At least 30 days prior to each date on which any payment under or with respect to any Securities is due and payable, unless such obligation to pay Additional Amounts arises after the 30th day prior to such date, in which case it shall be promptly paid thereafter, if the Issuer or the Guarantors shall be obligated to pay Additional Amounts with respect to such payment, the Issuer or the Guarantors shall deliver to the Trustee and the Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and shall set forth such other information necessary to enable such Trustee and Paying Agent to pay such Additional Amounts to Holders of such Securities on the payment date. Each Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters.
(e) Whenever in this Indenture there is mentioned, in any premium context, the payment of principal, premium, if any, interest, or interest on, of any Note other amount payable under or under with respect to any Subsidiary Guarantee or JV Subsidiary GuaranteeSecurity, such mention shall be deemed to include or mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The Issuer and the 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 any jurisdiction from the execution, delivery, enforcement or registration of the Securities, this Indenture or any other document or instrument in relation thereto or hereto, excluding all such taxes, charges or similar levies imposed by any jurisdiction outside any jurisdiction in which a Paying Agent is located, and the Issuer and the Guarantors hereby indemnify the Holders of the Securities for any such non-excluded taxes paid by such Holders.
Appears in 2 contracts
Sources: Indenture (Global Crossing Uk Telecommunications LTD), Indenture (Global Crossing LTD)
Additional Amounts. (a) All payments of of, or in respect of, principal of, and premium (if any) and interest on on, the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within on behalf of the Republic of Singapore, including any political subdivision or taxing authority thereof, or any other jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary any Guarantor is organized or resident for tax purposes (or from or through which payment is made, other than the United States or any political subdivision State or taxing authority thereof or therein), (including, without limitationin each case, any political subdivision thereof) (the PRC (each, as applicable, a “Relevant Jurisdiction”), ) or any jurisdiction through which payments are madeauthority thereof or therein having power to tax unless these taxes, unless such withholding or deduction is required by law or by regulation duties, assessments or governmental policy having the force of lawcharges are required to be withheld or deducted. In the event that any such withholding or deduction is so requiredevent, the Company, a Surviving Person Issuers (or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be), will jointly and severally, agree to pay such additional amount as will result (after deduction of such taxes, duties, assessments or governmental charges and any additional taxes, duties, assessments or governmental charges of the Relevant Jurisdiction) in the payment to each Holder of a Note of the amounts that would have been payable in respect of such Notes or under the Guarantees had no withholding or deduction been required (such amounts, “Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder had no such withholding or deduction been required), except that no Additional Amounts shall be payable:
(i) payable for or on account of:
(A1) any tax, duty, assessment or other governmental charge that would not have been imposed but forfor the fact that such Holder:
(1a) is or has been a domiciliary, national or resident of, engages or has been engaged in business, maintains or has maintained a permanent establishment, or is or has been physically present in Singapore or the existence of any present other jurisdiction, or former otherwise has or has had some connection between the Holder or beneficial owner of such Note and with the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding the mere ownership of, or receipt of payment under, such Note or under the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, Guarantees (including, without limitation, such the Holder or beneficial owner being or having been a national, domiciliary or resident of such in the 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;for tax purposes); or
(2b) the presentation of presented such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment in respect of the principal of, premium, if any, and interest on, such Note first became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, 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 date day within such 30-day periodperiod of 30 days;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B2) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C3) any tax, duty, assessment or other governmental charge which is payable otherwise than by deduction or withholding from payment of interest, principal or premium on the Notes or under the Guarantees;
(4) any tax, duty, assessment or other governmental charge that is payable otherwise than imposed or withheld by withholding reason of the failure to duly and timely comply by the Holder or deduction from payments the beneficial owner of principala Note with a request by the Company addressed to the Holder (A) to provide information concerning the nationality, premium residence, identity or connection with the Relevant Jurisdiction of the Holder or such beneficial owner or connection with the Relevant Jurisdiction or (if anyB) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); oris required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, duty, assessment or other governmental charge;
(ii5) any payment of the principal of or premium or interest on any Note to a any Holder that who is a fiduciary, partnership or person other than the sole beneficial owner of any the payment to the extent that such payment would be required to be included in that, if the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who had held the Note directly, such beneficial owner would not have been entitled to such the Additional Amounts;
(6) except in the case of a winding up of the Company, any tax, duty, assessment or other governmental charge which would not have been imposed but for the presentation of a Note for payment (where presentation is required) in the Relevant Jurisdiction (unless by reason of the Company’s actions, presentment could not have been made elsewhere); or
(7) any combination of the items listed above. Such Additional Amounts will also not be payable where, had that beneficiary, settlor, partner or the beneficial owner of the Note been the Holder thereof.
Holder, it would not have been entitled to payment of Additional Amounts by reason of clauses (b1) Whenever there is mentioned in through (7) above. If any context taxes are required to be deducted or withheld from payments on the Notes or under the Guarantees, the Company shall promptly provide a receipt of the payment of such taxes (or if such receipt is not available, any other evidence of payment reasonably acceptable to the Trustee). Any reference herein to the payment of the principal of, and any premium or interest on, on any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofunder this Indenture.
Appears in 2 contracts
Sources: Indenture (Avago Technologies Manufacturing (Singapore) Pte. Ltd.), Indenture (Avago Technologies LTD)
Additional Amounts. (a) All payments amounts of principal ofprincipal, premium, if any, and premium (interest, if any) and interest , on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees any series of Subordinated Debt Securities will be made paid by the Company without deduction or withholding or deduction for, or on account of, any and all present or and future income, stamp and other taxes, levies, imposts, duties, assessments charges, fees, deductions or governmental charges of whatever nature imposed withholdings now or levied hereafter imposed, levied, collected, withheld or assessed by or within any jurisdiction in which on behalf of the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (United Kingdom or any political subdivision or taxing any authority thereof or therein), including, without limitation, therein having the PRC power to tax (each, as applicable, a the “Relevant U.K. Taxing Jurisdiction”), or any jurisdiction through which payments are made, unless such deduction or withholding or deduction is required by law or by regulation or governmental policy having the force of law. In Unless otherwise specified in any Board Resolution, or an Officer’s Certificate, establishing the event that terms of Subordinated Debt Securities of a series in accordance with Section 3.01, if deduction or withholding of any such withholding taxes, levies, imposts, duties, charges, fees, deductions or deduction is so requiredwithholdings shall at any time be required by the U.K. Taxing Jurisdiction, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Company will pay such additional amounts with respect to interest and any redemption premium, if any, on any series of Subordinated Debt Securities (“Additional Amounts”) as will result may be necessary in receipt by order that the Holder net amounts paid to the Holders of each Note Subordinated Debt Securities of the particular series, after such deduction or withholding, shall equal the amounts of such amounts as payments which would have been received by payable in respect of such Holder Subordinated Debt Securities had no such deduction or withholding or deduction been required; provided, except however, that no Additional Amounts shall be payablethe foregoing will not apply to any such tax, levy, impost, duty, charge, fee, deduction or withholding that would not have been payable or due but for the fact that:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or the beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are madeSubordinated Debt Security is a domiciliary, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary national or resident of such Relevant Jurisdiction of, or treated as a resident thereof engaging in business or being or having been physically present or engaged in a trade or business therein or having or having had maintaining a permanent establishment therein;or physically present in, the U.K. Taxing Jurisdiction or otherwise has some connection with the U.K. Taxing Jurisdiction other than the mere holding or ownership of a Subordinated Debt Security, or the collection of the payment on any Subordinated Debt Security of the relevant series,
(2ii) except in the presentation case of such Note a winding-up of the Company in the United Kingdom, the relevant Subordinated Debt Security is presented (in cases in which where presentation is required) for payment in the United Kingdom,
(iii) the relevant Subordinated Debt Security is presented (where presentation is required) for payment more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had presented such Note Amount on presenting (where presentation is required) the Subordinated Debt Security for payment on any date within at the close of such 30-30 day period;,
(3iv) the failure Holder or the beneficial owner of the relevant Subordinated Debt Security or the payment on such Subordinated Debt Security failed to comply with a request by the Company or its liquidator or other authorized person addressed to the Holder (x) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (y) to comply with make any declaration or other similar claim to satisfy any requirement, which in the case of (x) or (y), is required or imposed by a timely request statute, treaty, regulation or administrative practice of the Company, U.K. Taxing Jurisdiction as a Surviving Person, any Subsidiary Guarantor precondition to exemption or relief from all or part of such deduction or withholding,
(v) the withholding or deduction is required to be made pursuant to European Council Directive 2003/48/EC on the taxation of savings income or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning Directive amending, supplementing or replacing such Holder’s Directive, or its beneficial owner’s nationalityany law implementing or complying with, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction introduced in order to reduce conform to, such Directive or eliminate any Directives,
(vi) the withholding or deduction as is required to which Additional Amounts would have otherwise been payable be made pursuant to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (“FATCA”)amended, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCATreasury entered into with respect thereto, any U.S. Treasury regulation issued thereunder or any other official interpretations or guidance issued with respect thereto; any intergovernmental agreement entered into with respect thereto, or any law, regulation, or other official interpretation or guidance promulgated pursuant to such an intergovernmental agreement,
(vii) the relevant Subordinated Debt Security is presented (where presentation is required) for payment by or on behalf of a Holder who would have been able to avoid such withholding or deduction by presenting (where presentation is required) the relevant Subordinated Debt Security to another paying agent in a Member State of the European Union, or
(Eviii) any combination of taxessubclauses (i) through (vii) above, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) nor shall Additional Amounts be paid with respect to a payment on the Subordinated Debt Securities to any Holder that who is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of any such payment to the extent that such payment would be required by the laws of the U.K. Taxing Jurisdiction to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, purposes of a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a beneficial owner who would not have been entitled to such Additional Amounts Amounts, had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
(b) Holder. Whenever in this Subordinated Debt Securities Indenture there is mentioned mentioned, in the context of any context Subordinated Debt Security, the payment of principal the principal, premium, if any, or interest, if any, on, or in respect of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeSubordinated Debt Security, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to the provisions of this Section and as if express mention of the payment of Additional Amounts (if applicable) were made in any provisions hereof where such express mention is not made.
Appears in 2 contracts
Sources: Fifth Supplemental Indenture (Royal Bank of Scotland Group PLC), Fifth Supplemental Indenture (Royal Bank of Scotland Group PLC)
Additional Amounts. (a) All payments of principal ofof and Distribution, and premium (if any) and interest Arrears of Distribution and/or Additional Distribution Amount on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees Securities will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by Mongolia or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor Company is organized or resident for tax purposes or any jurisdiction in which the Company is found to have a permanent establishment for tax purposes or any jurisdiction from or through which payment is made (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC ) (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Company will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note Security of such amounts payable under the Securities as would have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or beneficial owner of such Note Security and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note Security or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guaranteethe enforcement of rights thereunder, as the case may be, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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;
(2) the presentation of such Note Certificate (in cases in which presentation is required) more than 30 days after for payment in the later of the date on which the payment of the principal ofRelevant Jurisdiction, premium, if any, and interest on, unless such 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 Security could not have been entitled to such Additional Amounts if it had presented such Note for payment on any date within such 30-day periodelsewhere;
(3) the failure of the Holder or beneficial owner to comply with a timely reasonable request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor Company addressed to the Holder at least 60 days prior to the first payment with respect to which it is applicable, to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, if and to the extent that due and timely compliance with such request is required under the tax laws of would have reduced (and in such jurisdiction in order case Additional Amounts will be payable only with respect to reduce such reduced amount) or eliminate eliminated any withholding or deduction as to which Additional Amounts would have otherwise been payable to the Holder, provided further that (i) while the Securities are held in global form, this clause (3) shall apply only if the clearing system has reasonable procedures in place to provide notices to, and collect information from, holders of interests in the Global Securities and to allocate payments of additional amounts thereto and (ii) no holder of an interest in the Securities that is a pass-through entity, or a beneficial owner that holds an interest in the Securities through such Holderpass-through entity, shall have any obligation to establish eligibility for a reduced withholding tax rate under any income tax treaty to the extent it is not reasonably practicable for such holder or beneficial owner to do so; or
(4) the presentation surrender (in the case of a payment of principal, Distribution, Arrears of Distribution or Additional Distribution Amount on redemption) of the relevant Certificate for payment more than 30 days after the Relevant Date except to the extent that the relevant Holder would have been entitled to such Additional Amounts if it had surrendered the relevant Certificate on the last day of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhereperiod of 30 days;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;; or
(C) any tax, duty, assessment or other governmental charge that which is payable otherwise other than by deduction or withholding or deduction from payments of principalprincipal of, premium (if any) and interest or Distribution, Arrears of Distribution and/or Additional Distribution Amount, on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);Securities; or
(D) any tax, assessment, withholding or deduction required by sections taxes imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended or future U.S. Treasury Regulations or rulings promulgated thereunder (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, any law, regulation or other official guidance enacted or published in any jurisdiction implementing FATCA or an intergovernmental agreement with respect thereto, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A(A), (B(B), (C) and (D(C), or (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment payment, to the extent that such payment would be required to be included for tax purposes in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner member or beneficial owner been the Holder thereof.
(b) Whenever there In this Section 4.05, “Relevant Date” means whichever is mentioned in any context the later of (1) the date on which the payment of principal ofin question first becomes due and (2) if the full amount payable has not been received by the Principal Paying Agent or the Trustee on or prior to such due date, the date on which the full amount having been so received and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed notice to include payment of Additional Amounts provided for in this Indenture that effect has been given to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofHolders.
Appears in 2 contracts
Sources: Indenture (Energy Resources Rail LLC), Indenture (Enrestechnology LLC)
Additional Amounts. (a) All Any and all payments of principal ofmade by the Company to the Holders, and premium (if any) and interest on under or with respect to the Notes or under the Subsidiary Guarantees and JV 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 taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges of whatever nature charge (including any interest or penalties with respect thereto) imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (on behalf of Mexico or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC by any authority or agency therein or thereof having power to tax (each, as applicable, a hereinafter “Relevant JurisdictionMexican Withholding Taxes”), or any jurisdiction through which payments are made, unless such the withholding or deduction of such Mexican Withholding Taxes is required by law or by regulation or governmental policy having the force of lawadministration thereof. In the event that any such withholding Mexican Withholding Taxes are required to be so withheld or deduction is so requireddeducted, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Company will (i) pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note Holders of such amounts as would have been received by such Holder them had no such withholding or deduction been required, except that (ii) deduct or withhold such Mexican Withholding Taxes and (iii) remit the full amount so deducted or withheld to the relevant taxing or other authority. Notwithstanding the foregoing, no such Additional Amounts shall be payable:
(i) payable for or on account of:
(Aa) any tax, duty, assessment or other governmental charge that Mexican Withholding Taxes which would not have been imposed or levied on a Holder but for:
(1) for the existence of any present or former connection between the Holder or beneficial owner of such Note the Notes and the Relevant Jurisdiction Mexico or the any political subdivision or territory or possession thereof or area subject to its jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, (including, without limitation, such Holder or beneficial owner (i) being or having been a national, domiciliary citizen or resident of such Relevant Jurisdiction thereof, (ii) maintaining or treated as a resident thereof having maintained an office or permanent establishment therein or (iii) being or having been physically present or engaged in a trade or business therein therein) except for a connection solely arising from the mere ownership of, or having receipt of payment under, such Note or having had a permanent establishment thereinthe exercise or enforcement of rights under such Note or this Indenture;
(2b) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal ofexcept as otherwise provided, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, salesales, transfer, or personal property or similar tax, assessment or other governmental chargecharge imposed with respect to the Notes;
(Cc) any taxMexican Withholding Taxes that are imposed or levied by reason of the failure by the Holder or beneficial owner of such Note to comply with any certification, assessment identification, information, documentation, declaration or other governmental charge reporting requirement concerning the nationality, residency, identity or connection with Mexico which is required or imposed by a statute, treaty, regulation or general rule as a precondition to exemption from, or reduction in the rate of, the imposition, withholding or deduction of any Mexican Withholding Taxes; provided that at least 60 days prior to (i) the first payment date with respect to which the Company shall apply this clause (c) and, (ii) in the event of a change in such certification, identification, information, documentation, declaration or other reporting requirement, the first payment date subsequent to such change, the Company shall have notified the Trustee, in writing, that the Holders or beneficial owners of the Notes will be required to provide such certification, identification, information or documentation, declaration or other reporting;
(d) the presentation of such Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable otherwise or the date on which payment thereof is duly provided for, whichever occurs later, except to the extent that the Holder or the beneficial owner of such Note would have been entitled to Additional Amounts in respect of such Mexican Withholding Taxes on presenting such Note for payment on any date during such 30-day period;
(e) any Mexican Withholding Taxes that are payable only by a method other than by withholding or deduction from payments of principal, premium (if any) and interest payment on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCANotes; or
(Ef) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses items (Aa), (Bb), (Cc), (d) and (D); or
(iie) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereofabove.
(bg) Whenever there is mentioned in any context Notwithstanding the payment of principal offoregoing, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed the limitations on the Company’s obligation to include payment of pay Additional Amounts provided for set forth in this Indenture to clause (c) above shall not apply if the extent thatprovision of the certification, in such contextidentification, Additional Amounts areinformation, were documentation, declaration or would be payable in respect thereof.other
Appears in 2 contracts
Sources: Indenture (Kansas City Southern), Indenture (Kansas City Southern De Mexico, S.A. De C.V.)
Additional Amounts. (a) All payments of principal ofprincipal, premium, if any, and premium (if any) and interest made by or on behalf of the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will Company in respect of any Security shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (collectively, “Taxes”) imposed or levied by or within Bermuda, the British Virgin Islands, Cayman Islands, Hong Kong, the PRC or any jurisdiction in which where the Company, Company or the Paying Agent is otherwise considered by a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or taxing authority to be a resident for tax purposes (or in each case, including any political subdivision or taxing any authority therein or thereof or therein), including, without limitation, having power to tax) (the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction of such Taxes is required by law or by regulation or governmental policy having the force of law. In If the event that any Company is required to make such withholding or deduction is so requireddeduction, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will Company shall pay such additional amounts (“Additional Amounts”) as will result in receipt by the each Holder of each Note Securities of such amounts as would have been received by such Holder had no such withholding or deduction of such Taxes been required, except that no such Additional Amounts shall be payable:
(i) for or on account of:
(A) in respect of any tax, duty, assessment or other governmental charge such Taxes that would not have been imposed imposed, deducted or withheld but for:
(1) for the existence of any connection (whether present or former connection former) between the Holder or beneficial owner of such Note a Security and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note Security or the receipt of payments thereunder receiving principal, premium, if any, or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, interest in respect thereof (including such Holder or beneficial owner being or having been a national, domiciliary 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);
(2ii) the presentation in respect of such Note any Security presented for payment (in cases in which where presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided forrelevant date, except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had presented such Note on presenting the same for payment on any date within the last day of such 30-day period. For this purpose, the “relevant date” in relation to any Security means the later of (a) the due date for such payment or (b) the date such payment was made or duly provided for;
(3iii) the in respect of any Taxes that would not have been imposed, deducted or withheld but for a failure of the Holder or beneficial owner of a Security to comply with a timely request of by the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor Company addressed to the Holder or beneficial owner to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or;
(4iv) the presentation in respect of such Note any Taxes imposed as a result of a Security being presented for payment (in cases in which where presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, unless such Note Security could not have been presented for payment elsewhere;
(Bv) in respect of any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental chargeTaxes;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(iivi) to any Holder of a Holder Security that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof;
(vii) in respect of any such Taxes withheld or deducted from any payment under or with respect to any Security where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26—27, 2000 on the taxation of saving income or any law implementing or complying with, or introduced in order to conform to, any such directive;
(viii) with respect to any withholding or deduction that is imposed in connection with Sections 1471-1474 of the U.S. Internal Revenue Code and U.S. Treasury regulations thereunder (“FATCA”), any intergovernmental agreement between the United States and any other jurisdiction implementing or relating to FATCA or any non-U.S. law, regulation or guidance enacted or issued with respect thereto;
(ix) any such Taxes payable otherwise than by deduction or withholding from payments under or with respect to any Security; or
(x) any combination of Taxes referred to in the preceding clauses (i) through (ix) above.
(b) Whenever there In the event that any withholding or deduction for or on account of any Taxes is mentioned in any context the required and Additional Amounts are payable with respect thereto, at least 10 Business Days prior to each date of payment of principal of, premium, if any, or interest on the Securities, the Company shall furnish to the Trustee and the Paying Agent, if other than the Trustee, an Officers’ Certificate specifying the amount required to be withheld or deducted on such payments to such Holders, certifying that the Company shall pay such amounts required to be withheld to the appropriate governmental authority and certifying to the fact that the Additional Amounts will be payable and the amounts so payable to each Holder, and that the Company will pay to the Trustee or such Paying Agent the Additional Amounts required to be paid; provided that no such Officers’ Certificate will be required prior to any date of payment of principal of, premium, if any, or interest on such Securities if there has been no change with respect to the matters set forth in a prior Officers’ Certificate. The Trustee and each Paying Agent shall be entitled to rely on the fact that any Officers’ Certificate contemplated by this Section 6.05(b) has not been furnished as evidence of the fact that no withholding or deduction for or on account of any Taxes is required. The Company covenants to indemnify the Trustee and any premium Paying Agent for and to hold them harmless against any loss, liability or reasonably incurred expense without fraudulent activity, gross 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 such Officers’ Certificate furnished pursuant to this Section 6.05(b) or on the fact that any Officers’ Certificate contemplated by this Section 6.05(b) has not been furnished.
(c) Whenever in this Indenture there is mentioned, in any context, the payment of principal, premium, if any, or interest on, in respect of any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeSecurity, such mention shall be deemed to include the payment of Additional Amounts provided for in this Indenture Indenture, to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to this Indenture.
(d) Sections 6.05(a), (b) and (c) shall apply in the same manner with respect to the jurisdiction in which any successor Person to the Company is organized or resident for tax purposes or any authority therein or thereof having the power to tax (a “Successor Jurisdiction”), substituting such Successor Jurisdiction for the Relevant Jurisdiction.
(e) If the Company or its successor is required to make any deduction or withholding from any payments or deliveries with respect to the Notes, it shall deliver to the Trustee, the Paying Agent and the Holders official tax receipts evidencing the remittance to the relevant tax authorities of the amounts so withheld or deducted.
(f) The obligation of the Company to make payments of Additional Amounts under this Section 6.05 shall survive any termination, defeasance or discharge of this Indenture.
Appears in 2 contracts
Sources: Indenture (MicroAlgo Inc.), Indenture (Pinduoduo Inc.)
Additional Amounts. (a) All Unless otherwise required by the Netherlands law or Indonesian law, neither the Issuer nor any of the Guarantors will deduct or withhold from payments of principal of, and premium (if any) and interest on made with respect to the Notes or under and the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or Guarantee on account of, of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or on behalf of any political subdivision subdivisions or taxing authority thereof authorities in the Netherlands or therein), including, without limitation, Indonesia having the PRC power to tax (each, as applicable, a “Relevant JurisdictionTaxing Authority,” and such taxes, “Taxes”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that either the Issuer or any of the Guarantors is required to withhold or deduct on account of any Taxes from any payment made under or with respect to such withholding Notes or deduction is so requiredthe Guarantee, as the case may be, the Company, a Surviving Person Issuer or any of the applicable Subsidiary Guarantor or JV Subsidiary GuarantorGuarantors, as the case may be, will pay such additional amounts (so that the net amount received by each holder of Notes, including those additional amounts, will equal the amount that such holder would have received if such Taxes had not been required to be withheld or deducted. The amounts that the Issuer or any of the Guarantors are required to pay to preserve the net amount receivable by the holders of Notes are referred to as “Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder had no such withholding or deduction been required, except that no .” Additional Amounts shall will not be payablepayable with respect to a payment made to a holder of Notes to the extent:
(ia) for or on account of:
(A) that any tax, duty, assessment or other governmental charge that such Taxes would not have been imposed but for:
(1) for the existence of any present or former connection between the Holder holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are maderelevant Taxing Authority imposing such Taxes, other than merely holding such Note notes or the receipt exercise or enforcement of payments thereunder or rights under a Subsidiary such Notes, their Guarantee or JV Subsidiary Guaranteethe Indenture, including, without limitation, such Holder holder or the beneficial owner of such Notes being or having been a national, domiciliary 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;
(2b) that any such Taxes would not have been imposed but for the presentation of such Note (in cases in which Notes or the Guarantees, where presentation is required) , for payment on a date more than 30 days after the later of 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 beneficiary or holder of a Note thereof would have been entitled to Additional Amounts had the Notes been presented for payment on any date during such 30-day period;
(c) of any estate, inheritance, gift sale, transfer, personal property or other similar tax assessment or other governmental charge imposed with respect to such Note;
(d) that any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure of such holder of a Note or the beneficial owner of such Notes to comply with a request by the Issuer addressed to such holder of a Note to provide information concerning the nationality, residence or identity of such holder of a Note or such beneficial owner, or to make any declaration or other similar claim, or satisfy any information or reporting requirement, which, in either case, is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge;
(e) any combination of the above; or
(f) with respect to any payment of the principal of, premium, if any, and or interest on, on such Notes or the Guarantee to such holder of a Note became due and payable pursuant to the terms thereof (including a fiduciary or was made or duly provided for, except partnership) 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who Notes would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.holder of the Notes. Each of the Issuer and the Guarantors, as applicable, will also:
(b1) Whenever there is mentioned withhold or deduct the Taxes as required;
(2) remit the full amount of Taxes deducted or withheld to the relevant Taxing Authority in any context accordance with all applicable laws;
(3) use its reasonable efforts to obtain from each relevant Taxing Authority imposing such Taxes certified copies of tax receipts evidencing the payment of principal ofany Taxes deducted or withheld; and
(4) upon request, and any premium or interest onmake available to the holders of Notes, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include within 60 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Issuer or any relevant Guarantor or, if, notwithstanding the efforts of the Issuer or Guarantor to obtain such receipts, the same are not obtainable, other evidence of such payments. In addition, the Issuer and the Guarantors, as applicable, will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts provided for in this Indenture to the extent thatwith respect thereto, in such context, Additional Amounts are, were or would be payable in the Netherlands or the United States or any political subdivision or taxing authority of or in the foregoing in respect thereofof the creation, issue, offering, enforcement, redemption or retirement of any Notes or Guarantee.
Appears in 2 contracts
Sources: Indenture (PT Indosat TBK), Indenture (P T Indosat TBK)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on the Notes or and all payments under the Subsidiary Guarantees and JV Subsidiary Guarantees any Note Guarantee will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within Peru, any jurisdiction from or through which payment on the notes is made or any jurisdiction in which the CompanyIssuer or any applicable Guarantor, or any successor of the Issuer or any applicable Guarantor, wherein any successor assumes the obligations of the Notes and this Indenture following a Surviving Person merger, consolidation or an applicable Subsidiary Guarantor transfer, lease or JV Subsidiary Guarantor conveyance of substantially all of the predecessors assets, is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC ) (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person Issuer or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will make such deduction or withholding, make payment of the amount so withheld to the appropriate Governmental Authority and will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note Holders of such amounts as would have been received by such Holder the Holders had no such withholding or deduction been required, except that no Additional Amounts shall will be payable:
(ia) for or on account of:
(Ai) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or beneficial owner of such Note or Note Guarantee, as the case may be, and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary GuaranteeJurisdiction, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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 Note or the receipt of payments thereunder or under the Note Guarantee;
(2) the presentation of such Note (in cases in which where presentation is required) more than 30 thirty (30) days after the later of the date on which the payment of the principal of, premium, if any, and or interest on, such 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 date day within such thirty (30-) day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor Issuer or any JV Subsidiary Guarantor addressed to the Holder or beneficial owner, as the case may be, to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce applicable law, regulation or eliminate 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 Note (in cases in which where presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, unless such Note could not have been presented for payment elsewhere;
(Bii) any estate, inheritance, gift, sale, transfer, excise or personal property or similar tax, assessment or other governmental charge;
(Ciii) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and or interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any)Notes;
(Div) any tax, assessmentassessment or other governmental charge required to be withheld by any paying agent from any payment of principal, premium (if any) or interest on the Note, if such tax, assessment or other governmental charge results from the presentation of such Note for payment (where presentation is required) and the payment can be made without such withholding or deduction required by sections 1471 through 1474 the presentation of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or such Note for payment to at least one other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCAPaying Agent; or
(Ev) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (Ai), (Bii), (C) iii), and (Div) of this Section 2.12(a); or.
(iib) With respect to any payment of the principal of, or premium, if any, or interest on, such Note or any payment under any Note Guarantee to a Holder, if the Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any such payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a another beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner partner, or beneficial owner been the Holder thereof.
(bc) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Note Guarantee, such mention shall will be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(d) The Issuer intends to withhold Peruvian taxes from interest payments on the Notes at a rate 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 Notes are held by DTC or its nominee.
(e) The Issuer will promptly furnish to the Trustee either certified copies of tax receipts evidencing the payment of any taxes so deducted or withheld pursuant to applicable law by the Issuer, or, if such receipts are not obtainable, other evidence of such payments by the Issuer reasonably satisfactory to the Trustee.
(f) The obligation of the Issuer to pay Additional Amounts will survive the repayment of the Notes and the sale or transfer of the Notes (or beneficial interests therein) by any investor.
Appears in 2 contracts
Sources: Indenture (Camposol Holding PLC), Indenture (Camposol Holding PLC)
Additional Amounts. (a) All payments of principal of, under and premium (if any) and interest on with respect to the Notes or under and the Subsidiary Guarantees and JV Subsidiary Guarantees will be made by or on behalf of the Issuers and the Guarantors without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed by the United States or levied by or within any jurisdiction from or through which any payment is made on the Notes or the Guarantees (including the jurisdiction of any Paying Agent), in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or each case including any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC therein (each, as applicable, a “Relevant Taxing Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law (x) the laws (or any regulations or rulings promulgated thereunder) of the Relevant Taxing Jurisdiction or (y) an official written 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 regulation or governmental policy having a taxing authority in the force of lawRelevant Taxing Jurisdiction). In the event that If any such withholding or deduction is so required, the CompanyIssuers will, a Surviving Person or subject to the applicable Subsidiary Guarantor or JV Subsidiary Guarantorexceptions and limitations set forth below, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary in order that every net payment on such Note (including payment of the principal of, and premium and redemption price, if any, and interest on such Note) by or on behalf of the Issuers and the Guarantors (including by a Paying Agent), after such deduction or withholding, will result not be less than the amount provided in receipt by such Note to be then due and payable; provided, however, that the Holder of each Note of such amounts as foregoing obligation to pay Additional Amounts will not apply to:
(1) any tax, duty, assessment or other governmental charge that would not have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall be payableso imposed but for:
(i) the existence of any present or former connection between the relevant Holder or beneficial owner of such Note (or between a fiduciary, settlor or beneficiary of, or a person holding a power over, such Holder, if such Holder is an estate or a trust, or a member or shareholder of such holder, if such Holder is a partnership or corporation) and the Relevant Taxing Authority, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, person holding a power, member or shareholder) being or having been a citizen or resident of the Relevant Taxing Jurisdiction or treated as a resident thereof for tax purposes or on account of:being or having been engaged in a trade or business for tax purposes therein or having or having had a permanent establishment therein; or
(Aii) such Holder’s or beneficial owner’s past or present status, as applicable (under prior or current law), as a personal holding company, foreign personal holding company, foreign private foundation or other foreign tax exempt organization with respect to the United States, passive foreign investment company, a controlled foreign corporation for U.S. tax purposes that is related to the Issuers directly, indirectly, or constructively through stock ownership, or a corporation that accumulates earnings to avoid U.S. Federal income tax;
(2) any estate, inheritance, gift, sales, transfer, wealth or personal property tax or any similar tax, duty, assessment or other governmental charge;
(3) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) for the existence of any present or former connection between presentation by the Holder or beneficial owner of such the applicable Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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;
(2) the presentation of such Note (in cases in which presentation is required) for payment more than 30 days after the later of date on which such payment became due and payable or the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day periodwhichever occurred later;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any taxduty, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest the payment on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any)Note;
(D5) any tax, assessmentduty, assessment or other governmental charge required to be withheld by any Paying Agent from a payment on a Note, if such payment could be made without such withholding by any other Paying Agent;
(6) any tax, duty, assessment or other governmental charge that would not have been imposed but for a failure by the Holder or beneficial owner of the Note to comply with (upon receipt of a written request, with reasonable notice, from the Issuers or a Paying Agent addressed to the Holder) applicable certification, information, documentation, identification or other reporting requirements concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of the Holder or a beneficial owner of a Note if such compliance is required by statute or regulation of the Relevant Taxing Jurisdiction or by an applicable tax treaty to which the Relevant Taxing Jurisdiction is a party as a precondition to relief or exemption from such tax, duty, assessment or other governmental charge;
(7) any tax, duty, assessment or other governmental charge imposed on a Holder or a beneficial owner that actually or constructively owns 10 percent or more of the combined voting power of all classes of the Issuers’ stock or that is a bank receiving interest on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business; or
(8) any combination of items (1) through (7) of this Section 4.10, nor shall Additional Amounts be paid with respect to a payment on a Note to a Holder or a beneficial owner that is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to Additional Amounts (or payment of Additional Amounts would not have been necessary) had such beneficiary, settlor, member or beneficial owner been the Holder. At least 30 days prior to each date on which any payment under or with respect to the Notes is due and payable (unless such obligation to pay Additional Amounts arises after the 45th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), if the Issuer will be obligated to pay Additional Amounts with respect to such payment, the Issuer will deliver to the Trustee and the Paying Agents an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Trustee and the Paying Agents to pay such Additional Amounts to the holders of such Notes on the payment date. Notwithstanding anything to the contrary in this Section 4.10, the Issuers, the Trustee and any person making payments on behalf of the Issuers shall be entitled to deduct and withhold as required, and shall not be required to pay any Additional Amounts with respect to any such withholding or deduction required by sections imposed on or in respect of any Note, pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986, (such Sections commonly referred to as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereundertreaty, any law, regulation or other official guidance enacted in by any jurisdiction implementing FATCA, any intergovernmental agreement between agreements under Section 1471(b) of the United States and any other jurisdiction to implement FATCACode, or any agreement with the U.S. Internal Revenue Service under law implementing an intergovernmental approach to FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Sources: Indenture (Vantiv, Inc.), Indenture
Additional Amounts. (a) All payments Amounts to be paid on any series of principal of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees Senior Debt Securities will be made without deduction or withholding or deduction for, or on account of, any and all present or and future income, stamp and other taxes, levies, imposts, duties, assessments charges or governmental charges of whatever nature imposed fees imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which on behalf of the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (United Kingdom or any political subdivision or taxing authority thereof or therein), including, without limitation, therein having the PRC power to tax (each, as applicable, a the “Relevant Taxing Jurisdiction”), or any jurisdiction through which payments are made, unless such deduction or withholding or deduction is required by law or by regulation or governmental policy having the force of law. In If at any time a Taxing Jurisdiction requires the event that any Company to make such withholding deduction or deduction is so requiredwithholding, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Company will pay such additional amounts with respect to interest only on, the Senior Debt Securities (“Additional Amounts”) as will result that are necessary in receipt by order that the Holder net amounts of each Note interest paid to the Holders of such Senior Debt Securities of the particular series, after the deduction or withholding, shall equal the amounts as of interest only which would have been received by such Holder payable on the Senior Debt Securities if the deduction or withholding had no such withholding or deduction not been required. However, except that no Additional Amounts shall be payablethis will not apply to any such tax, levy, impost, duty, charge or fee, which would not have been deducted or withheld but for the fact that:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or the beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are madeSenior Debt Security is a domiciliary, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary national or resident of such Relevant Jurisdiction of, or treated as a resident thereof engaging in business or being or having been physically present or engaged in a trade or business therein or having or having had maintaining a permanent establishment therein;or is physically present in, the Taxing Jurisdiction or otherwise has some connection with the Taxing Jurisdiction other than the holding or ownership of a Senior Debt Security, or the collection of any payment of (or in respect of) principal of, or any interest, or other payment on, any Senior Debt Security of the relevant series,
(2ii) except in the presentation case of such Note winding-up in the United Kingdom, the relevant Senior Debt Security is presented (in cases in which where presentation is required) for payment in the United Kingdom,
(iii) the relevant Senior Debt Security is presented (where presentation is required) for payment more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the Holder thereof would have been entitled to such the Additional Amounts if it had presented such Note on presenting the same for payment on any date within such 30-at the close of that 30 day period;,
(3iv) the failure Holder or the beneficial owner of the relevant Senior Debt Security or the beneficial owner of any payment of (or in respect of) principal of or any interest or other payment on, the Senior Debt Security failed to comply with a request of the Company or its liquidator or other authorized person addressed to the Holder (x) to provide information concerning the nationality, residence or identity of the Holder or the beneficial owner or (y) to comply with make any declaration or other similar claim to satisfy any requirement, which in the case of (x) or (y), is required or imposed by a timely request statute, treaty, regulation or administrative practice of the CompanyTaxing Jurisdiction as a precondition to exemption from all or part of the tax, a Surviving Personlevy, impost, duty, charge or fee,
(v) the deduction or withholding is imposed by reason of any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to agreement with the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or U.S. Internal Revenue Service in connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through Sections 1471-1474 of the U.S. Internal Revenue Code of 1986, as amended and the U.S. Treasury regulations thereunder (“FATCA”), any current intergovernmental agreement between the United States and the United Kingdom or future Treasury Regulations any other jurisdiction with respect to FATCA, or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCAimplementing, or relating to, FATCA or any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAagreement, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(Evi) any combination of taxessubclauses (i) through (v) above, duties, assessments or other governmental charges referred nor shall Additional Amounts be paid with respect to in any interest only on the preceding clauses (A), (B), (C) and (D); or
(ii) Senior Debt Securities to a any Holder that who is a fiduciary, fiduciary or partnership or any person other than the sole beneficial owner of any such payment to the extent that such payment would be required by the laws of any Taxing Jurisdiction to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, purposes of a beneficiary or partner or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a beneficial owner who would not have been entitled to such Additional Amounts Amounts, had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
(b) Holder. Whenever in this Senior Debt Securities Indenture there is mentioned mentioned, in any context context, the payment of principal of, and any premium or interest on, in respect of, any Note or under Senior Debt Security of any Subsidiary Guarantee or JV Subsidiary Guarantee, series such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to the provisions of this Section and as if express mention of the payment of Additional Amounts (if applicable) were made in any provisions hereof where such express mention is not made. Upon request from the Trustee or a paying agent, the Company shall provide information reasonably necessary and readily available in order to enable to the Trustee or paying agent to determine whether any withholding obligations under FATCA apply. Neither the Company, the Trustee or a paying agent shall have any liability in connection with the Company’s or Trustee’s or paying agent’s compliance with any such withholding obligation under applicable law.
Appears in 2 contracts
Sources: Supplemental Indenture (Lloyds Banking Group PLC), Fifteenth Supplemental Indenture (Lloyds Banking Group PLC)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, If any present or future taxes, duties, assessments or other governmental charges of whatever nature are imposed or levied by or within any jurisdiction in which the Companyjurisdiction, a Surviving Person or an applicable Subsidiary other than the United States, where the Guarantor or JV Subsidiary a successor to the Company or the Guarantor (a “Payor”) is organized or otherwise considered to be a resident for tax purposes (purposes, any jurisdiction, other than the United States, from or through which the Payor makes a payment on the Securities of any Series, or, in each case, any political subdivision organization or taxing governmental authority thereof or therein), including, without limitationtherein having the power to tax (the “Relevant Tax Jurisdiction”) in respect of any payments under the Securities of such Series, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force Payor shall pay to each Holder of law. In the event that any such withholding or deduction Security, to the extent it may lawfully do so, such Additional Amounts as may be necessary in order that the net amounts paid to such Holder will be not less than the amount specified in such Security to which such Holder is so requiredentitled; provided, however, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder Payor shall not be required to make any payment of each Note of such amounts as would have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(i) for or on account of:
(Aa) any tax, duty, assessment or other governmental charge that which would not have been imposed but for:
for (1i) the existence of any present or former connection between the such Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note Holder, if such Holder is an estate, trust, partnership, limited liability company or corporation) and the Relevant Tax Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder (or beneficial owner such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary 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;
therein or (2ii) the presentation of such Note a Security (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which where presentation is required) for payment in on a date more than 30 days after (x) the Relevant Jurisdiction date on which such payment became due and payable or (y) the jurisdiction through date on which payments are madepayment thereof is duly provided for, unless such Note could not have been presented for payment elsewherewhichever occurs later;
(Bb) any estate, inheritance, gift, salesales, transfer, personal property or similar tax, assessment or other governmental charge;
(Cc) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of (or in respect of) principal of, premium, if any, or any interest on, the Securities of such Series;
(d) any tax, assessment or other governmental charge that is payable otherwise than imposed or withheld by withholding reason of the failure by the Holder or deduction from payments the beneficial owner of principalthe Securities of such Series to comply with a request of the Payor addressed to the Holder to provide information, premium (if any) and interest on documents or other evidence concerning the Notes nationality, residence or from payments under identity of the Subsidiary Guarantees Holder or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction such beneficial owner which is required by sections 1471 through 1474 of the Internal Revenue Code of 1986a statute, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any lawtreaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCAgovernmental charge; or
(Ee) any combination of taxesthe above; nor will Additional Amounts be paid with respect to any payment of the principal of, dutiesor any premium or interest on, assessments or other governmental charges referred any Securities of such Series to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a any Holder that who is a fiduciary, fiduciary or partnership or person limited liability company or other than the sole beneficial owner of any such payment to the extent that such payment would be required by the laws of the Relevant Tax Jurisdiction to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, purposes of a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of that partnership such partnership, or limited liability company or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Holder of such Securities. The Payor shall provide the Trustee with the official acknowledgment of the relevant tax authority (or, if such acknowledgment is not available, a certified copy thereof.
(b) Whenever there is mentioned in any context evidencing the payment of the withholding taxes by the Payor. Copies of such documentation shall be made available to the Holders of the Securities of such Series or the Paying Agent, as applicable, upon written request therefor. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of, and of or any premium or interest on, or in respect of, any Note Security of any Series or under the net proceeds received on the sale or exchange of any Subsidiary Guarantee or JV Subsidiary GuaranteeSecurity of any Series, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture by the terms of such Series established hereby or pursuant hereto to the 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 Additional Amounts in those provisions hereof where such express mention is not made. Except as otherwise provided in or pursuant to this Indenture or the Securities of the applicable Series, at least 10 days prior to the first Interest Payment Date with respect to such Series of Securities (or if the Securities of such Series shall not bear interest prior to Maturity, the first day on which a payment of principal is made), and at least 10 days prior to each date of payment of principal or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company shall furnish to the Trustee and the 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, or interest on, if any, and Additional Amounts, if any, with respect to the Securities of such Series shall be made to Holders of Securities of such Series without withholding for or on account of any tax, assessment or other governmental charge. 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, that the Company will pay all such amounts required to be withheld to the relevant governmental authority and the Company agrees to pay to the Trustee or such Paying Agent the Additional Amounts required by the terms of such Securities. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold each of them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith 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 pursuant to this Section 3.4.
Appears in 2 contracts
Sources: Subordinated Indenture (Alterra Finance LLC), Senior Indenture (Alterra Finance LLC)
Additional Amounts. (a) All Any and all payments of principal ofmade by the Company to the Holders, and premium (if any) and interest on under or with respect to the Notes or under the Subsidiary Guarantees and JV 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 taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges of whatever nature charge (including any interest or penalties with respect thereto) imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (on behalf of Mexico or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC by any authority or agency therein or thereof having power to tax (each, as applicable, a hereinafter “Relevant JurisdictionMexican Withholding Taxes”), or any jurisdiction through which payments are made, unless such the withholding or deduction of such Mexican Withholding Taxes is required by law or by regulation the interpretation or governmental policy having the force of lawadministration thereof. In the event that any such withholding Mexican Withholding Taxes are required to be so withheld or deduction is so requireddeducted, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Company will (i) pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note Holders of such amounts as would have been received by such Holder them had no such withholding or deduction been required, except that (ii) deduct or withhold such Mexican Withholding Taxes and (iii) remit the full amount so deducted or withheld to the relevant taxing or other authority. Notwithstanding the foregoing, no such Additional Amounts shall be payable:
(i) payable for or on account of:
(Aa) any tax, duty, assessment or other governmental charge that Mexican Withholding Taxes which would not have been imposed or levied on a Holder but for:
(1) for the existence of any present or former connection between the Holder or beneficial owner of such Note the Notes and the Relevant Jurisdiction Mexico or the jurisdiction through which payments are made, other than merely holding such Note any political subdivision or the receipt of payments thereunder territory or under a Subsidiary Guarantee possession thereof or JV Subsidiary Guaranteearea subject to its jurisdiction, including, without limitation, such Holder or beneficial owner (i) being or having been a national, domiciliary citizen or resident of such Relevant Jurisdiction thereof, (ii) maintaining or treated as a resident thereof having maintained an office, permanent establishment, fixed base or branch therein, or (iii) being or having been physically present or engaged in a trade or business therein therein, except for a connection solely arising from the mere ownership of, or having receipt of payment under, such Note or having had a permanent establishment thereinthe exercise of rights under this Indenture;
(2b) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal ofexcept as otherwise provided, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, salesales, transfer, or personal property or similar tax, assessment or other governmental charge;
(Cc) any taxMexican Withholding Taxes that are imposed or levied by reason of the failure by the Holder or beneficial owner of such Note to comply with any certification, assessment identification, information, documentation, declaration or other governmental charge that reporting requirement which is payable otherwise than required or imposed by withholding a statute, treaty, regulation, general rule or deduction from payments of principaladministrative practice as a precondition to exemption from, premium (if any) and interest on or reduction in the Notes or from payments under rate of, the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessmentimposition, withholding or deduction required by sections 1471 through 1474 of any Mexican Withholding Taxes; provided that at least 60 days prior to (i) the first payment date with respect to which the Company shall apply this clause (c) and, (ii) in the event of a change in such certification, identification, information, documentation, declaration or other reporting requirement, the first payment date subsequent to such change, the Company shall have notified the Trustee, in writing, that the Holders or beneficial owners of the Internal Revenue Code Notes will be required to provide such certification, identification, information or documentation, declaration or other reporting;
(d) any Mexican Withholding Taxes that are imposed or levied by reason of 1986the failure by the Holder or beneficial owner of such Note to timely comply (subject to the conditions set forth below) with a written request by or on behalf of the Company to provide information, as amended documentation or other evidence concerning the nationality, residence, identity, or registration with the Ministry of Finance and Public Credit of the Holder or beneficial owner of such Note that is necessary from time to time to determine the appropriate rate of deduction or withholding of Mexican Withholding Taxes applicable to such Holder or beneficial owner; provided that at least 60 days prior to the first payment date with respect to which the Company shall apply this clause (“FATCA”d), any current the Company shall have notified the Trustee, in writing, that such Holders or future Treasury Regulations or rulings promulgated thereunderbeneficial owners of the Notes will be required to provide such information, any law, regulation documentation or other official guidance enacted evidence;
(e) the presentation of such Note (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 to the extent that the Holder or the beneficial owner of such Note would have been entitled to Additional Amounts in respect of such Mexican Withholding Taxes on presenting such Note for payment on any jurisdiction implementing FATCA, date during such 30-day period;
(f) any intergovernmental agreement between the United States and any Mexican Withholding Taxes that are payable only by a method other jurisdiction to implement FATCA, than withholding or any agreement with the U.S. Internal Revenue Service under FATCAdeduction; or
(Eg) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses item (Aa), (Bb), (C) and c), (Dd); or
, (ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciarye), or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof(f) above.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 2 contracts
Sources: Indenture (Kansas City Southern), Indenture (TFM Sa De Cv)
Additional Amounts. (a) All Unless otherwise required by the Netherlands law or Indonesian law, neither the Issuer nor any of the Guarantors will deduct or withhold from payments of principal of, and premium (if any) and interest on made with respect to the Notes or under and the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or Guarantee on account of, of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or on behalf of any political subdivision subdivisions or taxing authority thereof authorities in the Netherlands or therein), including, without limitation, Indonesia having the PRC power to tax (each, as applicable, a “Relevant JurisdictionTaxing Authority,” and such taxes, “Taxes”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that either the Issuer or any of the Guarantors is required to withhold or deduct on account of any Taxes from any payment made under or with respect to such withholding Notes or deduction is so requiredthe Guarantee, as the case may be, the Company, a Surviving Person Issuer or any of the applicable Subsidiary Guarantor or JV Subsidiary GuarantorGuarantors, as the case may be, will pay such additional amounts (so that the net amount received by each holder of Notes, including those additional amounts, will equal the amount that such holder of Notes would have received if such Taxes had not been required to be withheld or deducted. The amounts that the Issuer or any of the Guarantors are required to pay to preserve the net amount receivable by the holders of Notes are referred to as “Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder had no such withholding or deduction been required, except that no .” Additional Amounts shall will not be payablepayable with respect to a payment made to a holder of Notes to the extent:
(ia) for or on account of:
(A) that any tax, duty, assessment or other governmental charge that such Taxes would not have been imposed but for:
(1) for the existence of any present or former connection between the Holder holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are maderelevant Taxing Authority imposing such Taxes, other than merely holding such Note notes or the receipt exercise or enforcement of payments thereunder or rights under a Subsidiary such Notes, their Guarantee or JV Subsidiary Guaranteethe Indenture, including, without limitation, such Holder holder or the beneficial owner of such Notes being or having been a national, domiciliary 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;
(2b) that any such Taxes would not have been imposed but for the presentation of such Note (in cases in which Notes or the Guarantees, where presentation is required) , for payment on a date more than 30 days after the later of 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 beneficiary or holder of Notes thereof would have been entitled to Additional Amounts had the Notes been presented for payment on any date during such 30-day period;
(c) of any estate, inheritance, gift sale, transfer, personal property or other similar tax assessment or other governmental charge imposed with respect to such Note;
(d) that any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure of such holder or the beneficial owner of such Notes to comply with a request by the Issuer addressed to such holder of Notes to provide information concerning the nationality, residence or identity of such holder of Notes or such beneficial owner, or to make any declaration or other similar claim, or satisfy any information or reporting requirement, which, in either case, is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge;
(e) any combination of the above; or
(f) with respect to any payment of the principal of, premium, if any, and or interest on, on such Note became due and payable pursuant Notes or the Guarantee to the terms thereof such holder of Notes (including a fiduciary or was made or duly provided for, except partnership) 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who Notes would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.holder of the Notes. Each of the Issuer and the Guarantors, as applicable, will also:
(b1) Whenever there is mentioned withhold or deduct the Taxes as required;
(2) remit the full amount of Taxes deducted or withheld to the relevant Taxing Authority in any context accordance with all applicable laws;
(3) use its reasonable efforts to obtain from each relevant Taxing Authority imposing such Taxes certified copies of tax receipts evidencing the payment of principal ofany Taxes deducted or withheld; and
(4) upon request, make available to the holders of Notes, within 60 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Issuer or any relevant Guarantor or, if, notwithstanding the efforts of the Issuer or Guarantor to obtain such receipts, the same are not obtainable, other evidence of such payments. In addition, the Issuer and the Guarantors, as applicable, will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in the Netherlands or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of any Notes or Guarantee. Any reference herein to principal, premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall will be deemed also to include payment of refer to any Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would which may be payable in respect thereofpayable.
Appears in 2 contracts
Sources: Indenture (PT Indosat TBK), Indenture (P T Indosat TBK)
Additional Amounts. (a) All The Company and the Guarantors shall make all payments of principal of, and premium (if any) or in respect of, principal of and interest on the Notes or under Securities, and all payments pursuant to the Subsidiary Guarantees and JV Subsidiary Guarantees will be made Guarantees, without withholding or deduction for, or on account ofof any Taxes, unless such Taxes are required by the Isle of Man or the jurisdiction of incorporation of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which successor to the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (Company or any political subdivision or taxing authority thereof or thereinof the Owners (each a "Successor Jurisdiction"), including, without limitation, as the PRC (each, as applicable, a “Relevant Jurisdiction”)case may be, or any jurisdiction through which payments are made, unless such withholding authority to be withheld or deduction is required by law or by regulation or governmental policy having the force of lawdeducted. In the event that any such withholding Taxes are to be withheld or deduction is so requireddeducted, the Company, a Surviving Person or the applicable Subsidiary relevant Guarantor or JV Subsidiary Guarantorany successor, as the case may be, will pay such additional amounts of, or in respect of, principal and interest or with respect to payments pursuant to the Guarantees (“"Additional Amounts”") as will result in receipt by may be necessary so that the Holder of each Note of such amounts as would have been net amount received by such each Holder had no (including Additional Amounts) after such withholding or deduction will not be less than the amounts that the Holder would have received if such Taxes had not been requiredwithheld or deducted, except that no Additional Amounts shall be payable:
(i) so payable for or on account of:
(A1) any tax, duty, assessment or other governmental charge Taxes that would not have been imposed but for:
(1a) the existence of any present or former connection between the such Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note Holder, if such Holder is an estate, trust, partnership or corporation) and the Relevant Isle of Man or any Successor Jurisdiction (including any territory or political subdivision of the jurisdiction through which payments are madeforegoing), other than merely holding such Note or as the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guaranteecase may be, including, without limitation, including such Holder (or beneficial owner such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary 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;
(2b) the presentation of such Note Security for payment in the Isle of Man or any Successor Jurisdiction, as the case may be, or any of their respective territories or political subdivisions, unless such Security could not have been presented for payment elsewhere; or
(in cases in which c) the presentation is required) of such Security more than 30 days after the later of the date on which the payment in respect of the principal of, premium, if any, and interest on, such Note Security became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had presented such Note Security for payment on any date day within such 30-day periodperiod of 30 days;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B2) any estate, inheritance, gift, sale, transfer, personal property or of similar tax, assessment or other governmental charge;
(C3) any tax, assessment or other governmental charge that is payable otherwise than imposed or withheld by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 reason of the Internal Revenue Code failure of 1986the Holder or beneficial owner of a Security to comply with a request of the Company or any of the Guarantors, as amended the case may be, addressed to the Holder (“FATCA”a) to provide reasonable information concerning the nationality, residence or identity of the Holder or such beneficial owner or (b) to make any reasonable declaration or other similar claim or satisfy any reasonable information or reporting requirement, which, in the case of (a) or (b), any current is required or future Treasury Regulations or rulings promulgated thereunderimposed by a statute, any lawtreaty, regulation or other official guidance enacted in any administrative practice of the taxing jurisdiction implementing FATCAas a precondition to exemption from all or part of such tax, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, assessment or any agreement with the U.S. Internal Revenue Service under FATCAgovernmental charge; or
(E4) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A1), (B), (C2) and (D3); or
(ii) nor shall Additional Amounts be paid with respect to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment of the principal of or any premium or interest on any such Security, or payment pursuant to the Guarantees, to any Holder (including a fiduciary or partnership) to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
of the Security. The Company or the relevant Guarantors, as the case may be, will also (bi) Whenever there is mentioned make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in any context accordance with applicable law. The Company or the relevant Guarantors, as the case may be, will furnish to Holders of Securities that are outstanding on the date of the withholding, or deduction for or on account of Taxes, within 30 days after the date of the payment of principal ofany Taxes due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or the relevant Guarantors, as the case may be. The Company or the relevant Guarantors, as the case may be, 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 any jurisdiction from the execution, delivery, enforcement or registration of the Securities or the Guarantees or any other document or instrument in relation thereto, or the receipt of any payments with respect to the Securities or Guarantees, excluding such taxes, charges or similar levies imposed by any jurisdiction outside of the Isle of Man, any Successor Jurisdiction or any jurisdiction in which a Paying Agent is located (except those resulting from or required to be paid in connection with, the enforcement of the Securities or the Guarantees or an other such document or instrument following the occurrence of any Event of Default), and the Company and the Guarantors hereby agree to indemnify the Holders for any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in taxes paid by such context, Additional Amounts are, were or would be payable in respect thereofHolders.
Appears in 2 contracts
Sources: Indenture (Navigator Gas Iom I-E LTD), Indenture (Navigator Gas Iom I-E LTD)
Additional Amounts. (a) All The Issuer and the Guarantors are required to make all payments of principal of, and premium (if any) and interest under this Indenture or on the Notes or under the Subsidiary Guarantees free and JV Subsidiary Guarantees will be made clear of and without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments or governmental charges of whatever nature Taxes imposed or levied by or on behalf of the government of the Netherlands, the United States or, in each case, any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which the CompanyIssuer (or its successor), a Surviving Person the Company (or an applicable Subsidiary Guarantor its successor) or JV any Subsidiary Guarantor is organized or is otherwise resident for tax purposes (or any political subdivision jurisdiction from or taxing authority thereof or therein), including, without limitation, the PRC through which payment is made (each, as applicable, each a “Relevant Taxing Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredIssuer, the Company, a Surviving Person Company or the applicable Subsidiary Guarantor or JV such Subsidiary Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Issuer, the Company or any Subsidiary Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, the Issuer, the Company or such Guarantor will be required to pay such additional amounts (“Additional Amounts”) as will result in receipt by may be necessary so that the Holder of each Note of such amounts as would have been net amount received by such any Holder had no or beneficial owner (including 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 requiredwithheld or deducted; provided, except however, that no the foregoing obligation to pay Additional Amounts shall be payabledoes not apply to:
(i) for or on account of:
(A1) any tax, duty, assessment or other governmental charge Taxes that would not have been so imposed but for:
(1) for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of such Note and power over, the Relevant Jurisdiction or relevant Holder, if the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such relevant Holder or beneficial owner being is an estate, nominee, trust or having been a national, domiciliary or resident corporation) and the Relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership or holding outside of the Relevant Taxing 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 thereinof such Note);
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent any Taxes that the Holder thereof would not have been entitled to such Additional Amounts if it had presented such Note imposed, withheld or deducted but for payment on any date within such 30-day period;
(3) the failure of by the Holder or the beneficial owner of the Note to comply with a timely written request of the CompanyIssuer, a Surviving Person, any Subsidiary Guarantor the Company or any JV Subsidiary Guarantor addressed to the Holder or the beneficial owner, after reasonable notice at least 30 days before any such Taxes would be imposed, withheld or deducted, to provide information certification, information, documents or other evidence concerning such Holder’s or its beneficial owner’s the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of the Holder or such beneficial owners or to make any declaration or similar claim or satisfy any certification, identification, information or other reporting requirement relating to such matters, required by applicable law, regulation, treaty, any (multilateral) exchange of information regime, or administrative practice of, or entered into by, the Relevant Taxing Jurisdiction as a precondition to exemption from all or the jurisdiction through which payments part of such Tax;
(3) any Taxes that are made, if and payable otherwise than by deduction or withholding from a payment under or with respect to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce Notes or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; orNotes Guarantee;
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, salevalue added, sales, transfer, personal property or similar tax, assessment or other governmental chargeTaxes;
(C5) any taxTaxes imposed in connection with a Note presented for payment (where presentation is permitted or required 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, assessment or other governmental charge otherwise accepting payment from, another paying agent;
(6) any Taxes which would not have been imposed if the Holder had presented the Note for payment (where presentation is permitted or required for payment) within 30 days after the relevant payment was first made available for payment to the Holder (except for Additional Amounts with respect to Taxes that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on would have been imposed had the Notes or from payments under Holder presented the Subsidiary Guarantees or JV Subsidiary Guarantees (if anyNote for payment within such 30-day period);
(D7) any tax, assessment, withholding Taxes imposed on or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction with respect to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) a payment to a Holder that is a fiduciary, fiduciary or partnership or person any Person other than the sole beneficial owner of any such payment or Note, to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, or a member of that such partnership or a the beneficial owner who of such payment or Note would not have been entitled to such the Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the actual Holder of such Note;
(8) any Taxes imposed pursuant to Sections 1471 to 1474 of the Code (or any regulations or agreements thereunder or official interpretations thereof) also referred to as “FATCA,” any intergovernmental agreement facilitating the implementation thereof (or any law implementing such intergovernmental agreement), any successor law or regulation implementing or complying with, or introduced in order to conform to, such sections of the Code, or any agreement entered into pursuant to Section 1471(b)(1) of the Code; or
(9) any combination of the above.
(bc) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer will deliver to the Trustee and paying agent for the affected Notes notice 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 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.
(d) Upon request, the Issuer will provide the Trustee with official receipts or other documentation evidencing the payment of the Taxes with respect to which Additional Amounts are paid. The Issuer 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.
(e) Whenever there reference is mentioned made in this Indenture, in any context context, to (i) the payment of principal ofor premium, and (ii) redemption prices or purchase prices in connection with a redemption or purchase of Notes, (iii) interest or (iv) any premium other amount payable on or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guaranteewith respect to the Notes, such mention shall reference will be deemed to include payment of Additional Amounts provided for in as described under this Indenture heading to the extent that, in such context, Additional Amounts are, were are or would be payable in respect thereof.
(f) The obligations described under this Section 2.13 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer or any Guarantor is organized or any political subdivision or taxing authority or agency thereof or therein.
(g) The Issuer and the Guarantors shall indemnify and hold harmless the Trustee for the amount of any Taxes in respect of which the Issuer, or any Guarantor, is required to pay Additional Amounts pursuant to Section 2.13(b) that are levied or imposed and paid by the Trustee as a result of payments made under or with respect to the Notes or any Guarantee, including any reimbursements under this Section 2.13(g).
Appears in 2 contracts
Sources: Indenture (Alcoa Upstream Corp), Indenture (Alcoa Inc.)
Additional Amounts. (a) All payments under or in respect of principal the Notes or any Note Guaranty shall be made free and clear of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, for or on account of, any present or future taxes, duties, levies, imposts, assessments or governmental charges (including penalties, interest and additions related thereto) (collectively, "Taxes") of whatever nature imposed imposed, levied, collected, withheld or levied by or within assessed of any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, Tax Jurisdiction unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that of any such withholding or deduction imposed or levied by a Tax Jurisdiction is so requiredrequired to be made from any payments under or with respect to the Notes or any Note Guaranty, the Company, a Surviving Person Company or the applicable Subsidiary Guarantor or JV Subsidiary relevant Guarantor, as applicable, shall pay to Holders of the case may be, will pay Notes such additional amounts (“"Additional Amounts”") as will result in receipt by the net payment to such Holder (including Additional Amounts) of each Note of such amounts as the amount that would otherwise have been received receivable by such Holder had no in the absence of such withholding or deduction been requireddeduction, except that no such Additional Amounts shall be payablepayable with respect to:
(i) for or on account of:
(Aa) any tax, duty, assessment or other governmental charge Taxes that would not have been imposed so withheld or deducted but for:
(1) the existence of any present or former connection between for the Holder or beneficial owner of the Notes having a present or former connection to the relevant Tax Jurisdiction (including having a permanent establishment in such Note and Tax Jurisdiction, being a citizen or resident or national of, incorporated in or carrying on a business, in the Relevant relevant Tax Jurisdiction or the jurisdiction through in which payments such Taxes are made, imposed) other than merely the mere receipt of payments in respect of the Notes or any Note Guaranty, the mere holding or ownership of such Note or beneficial interest in the receipt Note or the exercise of payments thereunder any rights under the Notes, any Note Guaranty, this Indenture or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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 thereinthe Registration Rights Agreement;
(2b) the presentation of such Note (in cases in which where presentation is required) more than required for payment on a Note, any Taxes that would not have been so withheld or deducted if the Note had been presented for payment within 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided forRelevant Date, except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had the Note been presented such Note for payment on any date within day during such 30-30 day periodperiod and there were no additional withholdings or deductions as a result of such late presentment;
(3c) any Taxes that would not have been so withheld or deducted but for the failure by the Holder or the beneficial owner of the Note or any payment in respect of such Note, after written request made to that Holder or beneficial owner at least 30 days before any such withholding or deduction would be payable, by the Company or the relevant Guarantor, as applicable, to comply with a timely request of the Companyany certification, a Surviving Personidentification, any Subsidiary Guarantor information, documentation or any JV Subsidiary Guarantor addressed to the Holder to provide information other similar reporting requirement concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through relevant Tax Jurisdiction, which payments are made, if and to the extent that due and timely compliance with such request is required under or imposed by a statute, regulation or administrative practice of the tax laws relevant Taxing Jurisdiction as a precondition to exemption from all or part of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhereTaxes;
(Bd) any estate, inheritance, gift, salesales, transfer, personal property or similar tax, assessment or other governmental chargeTaxes imposed with respect to any Note;
(Ce) any tax, assessment or Taxes payable other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any)deduction;
(Df) any tax, assessment, withholding or deduction imposed on a payment to an individual that is required by sections 1471 through 1474 to be made pursuant to the European Union Directive on the taxation of savings income (the "Directive") implementing the conclusions of the Internal Revenue Code European Counsel of 1986Economic and Finance Ministers (ECOFIN) meeting on June 3, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA2003, or any agreement with the U.S. Internal Revenue Service under FATCA; orlaw implementing or complying with, or introduced in order to conform to, such Directive;
(Eg) any combination Taxes imposed in connection with a Note presented for payment by or on behalf of taxes, duties, assessments a Holder or other governmental charges referred beneficial owner thereof who would have been able to in avoid such tax by presenting the preceding clauses (A), (B), (C) and (D); orrelevant Note to another paying agent;
(iih) any payment on a Note or a Note Guaranty to a Holder that is a fiduciary, fiduciary or partnership or a person other than the sole beneficial owner of any payment such payment, to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, or a member of that such a partnership or a the beneficial owner who of the payment would not have been entitled to such the Additional Amounts had that the beneficiary, settlor, partner member or beneficial owner been the Holder thereof.of the Note or Note Guaranty; or
(bi) Whenever there any combination of (a) through (h) above. Notwithstanding the foregoing, the limitations on the Company's or relevant Guarantor's obligation to pay Additional Amounts set forth in clauses (c) and (h) above shall not apply if (i) the provision of information, documentation or other evidence described in such clauses (c) and (h) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note (taking into account any relevant differences between U.S. and Mexican law rules, regulations or administrative practice) than comparable information or other reporting requirements imposed under U.S. tax law, regulation and administrative practice (such as IRS Forms W-8BEN and W-9) or (ii) Rule 3.23.8 issued by the Ministry of Finance and Public Credit on April 28, 2006 or a substantially similar successor of such rule is mentioned in effect, unless the provision of the information, documentation or other evidence described in clauses (c) and (h) is expressly required by statute, regulation, rule, ruling or administrative practice in order to apply Rule 3.23.8 (or a substantially similar successor of such rule), the Company cannot obtain such information, documentation or other evidence on its own through reasonable diligence and the Company otherwise would meet the requirements for application of Rule 3.23.8 (or such successor of such rule). In addition, such clauses (c) and (d) shall not be construed to require that a non-Mexican pension or retirement fund or a non-Mexican financial institution or another Holder register with the Ministry of Finance and Public Credit for the purpose of establishing eligibility for an exemption from or reduction of Mexican withholding tax or to require that a Holder or beneficial owner certify or provide information concerning whether it is or is not a tax-exempt pension or retirement fund. If the Directive imposes taxes upon Notes presented for payment, the Company or relevant Guarantor will use commercially reasonable efforts to maintain a Paying Agent with a specified office in a Member State of the European Union that will not be obligated to withhold or deduct tax pursuant to the Directive or any context law implementing or complying with, or introduced in order to conform to, the payment Directive. References to principal, interest or any other amount payable on or in respect of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed also to include payment of refer to any Additional Amounts provided for which may be payable as set forth in this Indenture or in the Notes to the extent that, in such context, that Additional Amounts are, were or would be payable in respect thereof. At least 10 Business Days prior to the first Interest Payment Date (and at least 10 Business Days prior to each succeeding Interest Payment Date if there has been any change with respect to the matters set forth in the below mentioned Officers' Certificate), the Company or the relevant Guarantor, as applicable, will furnish to the Trustee and the Paying Agent an Officers' Certificate instructing the Trustee and the Paying Agent whether payments of principal of or interest on the Notes due on such Interest Payment Date shall be without deduction or withholding for or on account of any Taxes by the Tax Jurisdictions. If any such deduction or withholding shall be required, at least 20 days prior to such Interest Payment Date (unless the obligation to pay Additional Amounts arises after the 20th day prior to the payment date, in which case the Company or the relevant Guarantor shall notify the Trustee and the Paying Agent in writing promptly thereafter), the Company, or the relevant Guarantor, as applicable, will furnish the Trustee and the Paying Agent with an Officers' Certificate that specifies the amount, if any, required to be withheld on such payment to Holders of the Notes. If the Company or any Guarantor is obligated to pay Additional Amounts with respect to such payment, the Officers' Certificate must also set forth any other information reasonably necessary to enable the Paying Agent to pay Additional Amounts to the Holders on the relevant payment date. For these purposes, any Officers' Certificate required by this Indenture to be provided to the Trustee and the Paying Agent shall be deemed to be duly provided if telecopied to the Trustee and such Paying Agent. Each of the Company and the Guarantors, jointly and severally, agree to indemnify the Trustee and the Paying Agent for, and to hold each harmless against, any loss, liability or expense reasonably incurred without bad faith on its part arising out of or in connection with actions taken or omitted by it in reliance on any Officer's Certificate furnished pursuant to this Section 4.22 or any failure to furnish such a certificate. The Company or the relevant Guarantor, as applicable, 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. The Company or the relevant Guarantor, as applicable, will obtain official receipts from each tax authority evidencing the payment of any Taxes so deducted or withheld, or, if such receipts are not obtainable, such other documentation reasonably acceptable to the Trustee. The Company, or the relevant Guarantor, as applicable, shall furnish to the Trustee the official receipts (or a certified copy of the official receipts or other such documentation, as applicable) evidencing payment of Taxes. The Company or the relevant Guarantor, as applicable, will attach to each certified copy or other such documentation, as applicable, a certificate stating (x) that the amount of such Tax evidenced by the certified copy was paid in connection with payments under or with respect to the Notes then outstanding upon which such Taxes were due and (y) the amount of such withholding tax paid per $1,000 of principal amount of the Notes. Copies of such receipts or other such documentation, as applicable, shall be made available to Holders of the Notes upon request. The Company and the relevant Guarantor, as applicable, shall promptly pay when due, and indemnify the Holder for, any present or future stamp, issue, registration, court and/or documentary taxes, and/or any other excise taxes, similar charges or similar levies imposed by the Tax Jurisdictions on the execution, delivery, registration or enforcement of any of the Notes, this Indenture, any Note Guaranty or any other document or instrument referred to herein or therein. The Company and the relevant Guarantor, as applicable, will indemnify and hold harmless each Holder of Notes and, upon written request of any Holder of Notes, reimburse each such Holder, for the amount of:
(1) any Taxes (other than Taxes excluded under clauses (a) through (h)) levied or imposed and paid by such Holder as a result of payments made on or with respect to the Notes; provided that reasonable supporting documentation is provided; and
(2) any Taxes (other than Taxes excluded under clauses (a) through (h)) levied or imposed with respect to any reimbursement under the foregoing clause (1), so that the net amount received by such Holder after such reimbursement will not be less than the net amount the Holder would have received if Taxes (other than Taxes excluded under clauses (a) through (h)) on such reimbursement had not been imposed. Any payments made pursuant to the preceding sentence will be treated as Additional Amounts for all relevant purposes. The obligations of the Company and the Guarantor pursuant to this Section 4.22 shall survive termination or discharge of this Indenture, payment of the Notes and/or resignation or removal of the Trustee or the Paying Agent.
Appears in 2 contracts
Sources: Indenture (Vitro Sa De Cv), Indenture (Vitro Sa De Cv)
Additional Amounts. (a) All Any and all payments of principal ofmade by the Company to the Holders, and premium (if any) and interest on under or with respect to the Notes or under the Subsidiary Guarantees and JV 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 taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges of whatever nature charge (including any interest or penalties with respect thereto) imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (on behalf of Mexico or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC by any authority or agency therein or thereof having power to tax (each, as applicable, a hereinafter “Relevant JurisdictionMexican Withholding Taxes”), or any jurisdiction through which payments are made, unless such the withholding or deduction of such Mexican Withholding Taxes is required by law or by regulation the interpretation or governmental policy having the force of lawadministration thereof. In the event that any such withholding Mexican Withholding Taxes are required to be so withheld or deduction is so requireddeducted, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Company will (i) pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note Holders of such amounts as would have been received by such Holder them had no such withholding or deduction been required, except that (ii) deduct or withhold such Mexican Withholding Taxes and (iii) remit the full amount so deducted or withheld to the relevant taxing or other authority. Notwithstanding the foregoing, no such Additional Amounts shall be payable:
(i) payable for or on account of:
(Aa) any tax, duty, assessment or other governmental charge that Mexican Withholding Taxes which would not have been imposed or levied on a Holder but for:
(1) for the existence of any present or former connection between the Holder or beneficial owner of such Note the Notes and the Relevant Jurisdiction Mexico or the jurisdiction through which payments are made, other than merely holding such Note any political subdivision or the receipt of payments thereunder territory or under a Subsidiary Guarantee possession thereof or JV Subsidiary Guaranteearea subject to its jurisdiction, including, without limitation, such Holder or beneficial owner (i) being or having been a national, domiciliary citizen or resident of such Relevant Jurisdiction thereof, (ii) maintaining or treated as a resident thereof having maintained an office, permanent establishment, fixed base or branch therein, or (iii) being or having been physically present or engaged in a trade or business therein therein, except for a connection solely arising from the mere ownership of, or having receipt of payment under, such Note or having had a permanent establishment thereinthe exercise of rights under this Indenture;
(2b) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal ofexcept as otherwise provided, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, salesales, transfer, or personal property or similar tax, assessment or other governmental charge;
(Cc) any taxMexican Withholding Taxes that are imposed or levied by reason of the failure by the Holder or beneficial owner of such Note to comply with any certification, assessment identification, information, documentation, declaration or other governmental charge that reporting requirement which is payable otherwise than required or imposed by withholding a statute, treaty, regulation, general rule or deduction from payments of principaladministrative practice as a precondition to exemption from, premium (if any) and interest on or reduction in the Notes or from payments under rate of, the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessmentimposition, withholding or deduction required by sections 1471 through 1474 of any Mexican Withholding Taxes; provided that at least 60 days prior to (i) the first payment date with respect to which the Company shall apply this clause (c) and, (ii) in the event of a change in such certification, identification, information, documentation, declaration or otherreporting requirement, the first payment date subsequent to such change, the Company shall have notified the Trustee, in writing, that the Holders or beneficial owners of the Internal Revenue Code Notes will be required to provide such certification, identification, information or documentation, declaration or other reporting;
(d) any Mexican Withholding Taxes that are imposed or levied by reason of 1986the failure by the Holder or beneficial owner of such Note to timely comply (subject to the conditions set forth below) with a written request by or on behalf of the Company to provide information, as amended documentation or other evidence concerning the nationality, residence, identity, or registration with the Ministry of Finance and Public Credit of the Holder or beneficial owner of such Note that is necessary from time to time to determine the appropriate rate of deduction or withholding of Mexican Withholding Taxes applicable to such Holder or beneficial owner; provided that at least 60 days prior to the first payment date with respect to which the Company shall apply this clause (“FATCA”d), any current the Company shall have notified the Trustee, in writing, that such Holders or future Treasury Regulations or rulings promulgated thereunderbeneficial owners of the Notes will be required to provide such information, any law, regulation documentation or other official guidance enacted evidence;
(e) the presentation of such Note (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 to the extent that the Holder or the beneficial owner of such Note would have been entitled to Additional Amounts in respect of such Mexican Withholding Taxes on presenting such Note for payment on any jurisdiction implementing FATCA, date during such 30-day period;
(f) any intergovernmental agreement between the United States and any Mexican Withholding Taxes that are payable only by other jurisdiction to implement FATCA, than withholding or any agreement with the U.S. Internal Revenue Service under FATCAdeduction; or
(Eg) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses item (Aa), (Bb), (C) and c), (Dd); or
, (ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciarye), or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof(f) above.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Sources: Indenture (Kansas City Southern)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on the Notes made by or under on behalf of the Subsidiary Guarantees and JV Subsidiary Guarantees Issuer (which term shall include, for purposes of this provision, any surviving entity) will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor Issuer is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are madepayment is made by or on behalf of the Issuer or any political subdivision or taxing authority thereof or therein (the “Relevant Jurisdictions”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that If any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Issuer will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall will be payable:
(i1) for or on account of:
(Ai) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1A) the existence of any present or former connection between the Holder or beneficial owner of such Note the Notes and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note of the Notes or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guaranteethereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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;
(2B) the presentation of such Note the Notes (in cases in which presentation is required) more than 30 thirty (30) days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note the Notes 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 the Notes for payment on any date within such 30-day thirty (30)-day period;
(3C) the presentation of the Notes (in cases in which presentation is required) for payment in the Relevant Jurisdiction, unless the Notes could not have been presented for payment elsewhere; or
(D) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor Issuer (or any JV Subsidiary Guarantor agent thereof), addressed to the Holder Holder, to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are madeJurisdiction, if and to the extent that due and timely compliance with such request is required under the tax laws statutes, regulations or official administrative guidance having a force of such jurisdiction law of the Relevant Jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(Bii) any estate, inheritance, gift, sale, transfer, personal property or similar tax, duty, assessment or other governmental charge;
(Ciii) any tax, duty, assessment or other governmental charge that which is payable otherwise other than by deduction or withholding or deduction from payments of principal, principal of or interest or any premium (if any) and interest on under or with respect to the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any)Notes;
(Div) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (including any successor provisions) (“FATCA”), any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA (or any fiscal or regulatory legislation, rules or practices implementing such an intergovernmental agreement), any current or future Treasury Regulations regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(Ev) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (Ai), (Bii), (Ciii) and (Div); or
(ii2) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereofHolder.
(b) The Issuer will (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 Issuer will make reasonable efforts to obtain original tax receipts or certified copies thereof evidencing the payment of any taxes, duties, assessments or governmental charges so deducted or withheld and paid to the Relevant Jurisdiction. The Issuer will furnish to the Trustee within sixty (60) days after the date the payment of any taxes, duties, assessments or governmental charges so deducted or withheld is due pursuant to Applicable Law, either original tax receipts or certified copies thereof evidencing such payment or, if such receipts are not obtainable, other evidence of such payments.
(c) At least thirty (30) days prior to each date on which any payment under or with respect to the Notes is due and payable (unless the obligation to pay Additional Amounts arises after the forty-fifth (45th) day prior to that payment date, in which case promptly thereafter), if the Issuer will be obligated to pay Additional Amounts with respect to such payment, the Issuer will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable.
(d) The Trustee will make payments free of withholdings or deductions on account of taxes unless required by applicable law. If such a deduction or withholding is required, the Trustee will not be obligated to pay any Additional Amount to the recipient unless such an Additional Amount is received by the Trustee. In addition, the Issuer will pay any stamp, issue, registration, documentary or other similar taxes and duties (including interest and penalties) payable in any Relevant Jurisdiction in respect of the creation, issue, offering, execution or enforcement of the Notes or any documentation with respect thereto. Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeNotes, such mention shall will be deemed to include payment of Additional Amounts provided for in this Indenture Trust Deed to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Sources: Trust Deed (ReNew Energy Global PLC)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on by the Notes Issuer in respect of the Securities or under by the Subsidiary Guarantors in respect of the Guarantees and JV Subsidiary Guarantees will shall be made without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments assessments, or other governmental charges of whatever nature imposed or levied by or within on behalf of Austria, Brazil or any other jurisdiction or political subdivision thereof from or through which a payment is made or in which the Company, a Surviving Person Issuer or an applicable Subsidiary Guarantor the Guarantors (or JV Subsidiary Guarantor any successor to the Issuer or the Guarantors) is organized or incorporated, as applicable, or is a resident for tax purposes having power to tax (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Taxing Jurisdiction”), unless the Issuer or any jurisdiction through which payments the Guarantors are madecompelled by law to deduct or withhold such taxes, unless duties, assessments, or governmental charges. In such event, the Issuer or the Guarantors shall make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts as may be necessary to ensure that the net amounts receivable by Holders of Securities after such withholding or deduction is required by law or by regulation or governmental policy having shall equal the force respective amounts of law. In principal and interest which would have been received in respect of the event that any Securities in the absence of such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note of ). No such amounts as would have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(i) for in respect of any taxes, duties, assessments or on account of:
(A) any tax, duty, assessment or other governmental charge charges that would not have been imposed so withheld or deducted but for:
(1) for the existence of any present or former connection between the Holder or beneficial owner of the Security (or between a fiduciary, settlor, beneficiary, member or shareholder of such Note Holder or beneficial owner, if such Holder or beneficial owner is an estate, a trust, a partnership, a limited liability company or a corporation) and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary GuaranteeTaxing Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a national, domiciliary 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 or present therein or having having, or having had had, a permanent establishment therein, other than the mere holding of the Security or enforcement of rights and the receipt of payments with respect to the Security;
(2ii) the presentation in respect of such Note (in cases in which presentation is required) Securities presented for payment more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date (as defined below) except to the extent that the Holder thereof of such Security would have been entitled to such Additional Amounts if it had presented Amounts, on surrender of such Note Security for payment on any date within the last day of such 30-day periodperiod of 30 days;
(3iii) the failure in respect of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to that would not have been so withheld or deducted but for the failure by the Holder, the beneficial owner of the Security, or, in the preceding clauses case of amounts payable to the Trustee, the Trustee to (i) make a declaration of non-residence, or any other claim or filing for exemption, to which it is entitled, or (ii) comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, if (A)) compliance is required by the Relevant Taxing Jurisdiction, as a precondition to, exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and (B)) the Issuer has given the holders or the Trustee, as applicable, at least 30 days’ notice that Holders will be required to provide such certification, identification or other requirement; provided that, in no event, shall such Holder’s, beneficial owner’s, or Trustee’s requirement to make a valid and legal claim for exemption from or reduction of such taxes require such Holder, beneficial owner or the Trustee to provide any materially more onerous information, documents or other evidence than would be required to be provided had such Holder, beneficial owner or the Trustee been required to file U.S. Internal Revenue Service Forms W-8 or W-9, as applicable;
(Civ) and in respect of any estate, inheritance, gift, sales, transfer, capital gains, excise or personal property or similar tax, assessment or governmental charge;
(D)v) any withholding or deduction that is imposed on the Securities that is presented for payment, where presentation is required, by or on behalf of a Holder who would have been able to avoid such withholding or deduction by presenting such Securities to another paying agent in a member state of the European Union;
(vi) in respect of any tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments of principal of or interest on the Securities; or
(iivii) in respect of any combination of the above.
(b) In addition, no Additional Amounts shall be paid with respect to any payment on a Security to a Holder that who is a fiduciary, partnership a partnership, a limited liability company or person other than the sole beneficial owner of any that payment to the extent that such payment would be required by the laws of the Relevant Taxing Jurisdiction to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are madeincome, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership partnership, an interest holder in a limited liability company or a beneficial owner who would not have been entitled to such the Additional Amounts had that beneficiary, settlor, partner member or beneficial owner been the Holder thereofHolder.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Sources: Indenture (Suzano Austria GmbH)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on made under or with respect to the Notes or under the Subsidiary Guarantees and JV Subsidiary Note Guarantees will be made free and clear of and without withholding or deduction for or on account of any present or future Taxes, unless the withholding or deduction is then required by law. If any withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature Taxes imposed or levied by or within on behalf of (1) any jurisdiction in which the CompanyCompany or any Guarantor (including any successor or other surviving entity) is then organized, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized engaged in business or resident for tax purposes (or any political subdivision or taxing authority thereof or therein)therein or (2) any jurisdiction from or through which payment is made by or on behalf of the Company or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) (each, a “Tax Jurisdiction”) will at any time be required to be made from any payments made under or with respect to the Notes or the Note Guarantees, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the PRC (eachCompany or the relevant Guarantor, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (the “Additional Amounts”) as will result may be necessary in receipt by order that the Holder of each Note net amounts received in respect of such payments by each Holder (including Additional Amounts) after such withholding or deduction will equal the respective amounts as that would have been received by in respect of such Holder had no payments in the absence of such withholding or deduction been requireddeduction; provided, except however, that no Additional Amounts shall will be payable:payable with respect to any of the following (referred to herein as “Excluded Taxes”);
(i) for or on account of:
(A1) any tax, duty, assessment or other governmental charge Taxes that would not have been imposed but for:
for the Holder or Beneficial Owner (1or fiduciary, settlor, partner, member or shareholder of the Holder, as the case may be) of the existence of Notes being a citizen or resident or national of, organized 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 between with the Holder or beneficial owner of such Note and the Relevant relevant Tax Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note the mere acquisition, holding, enforcement or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident payment in respect 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 thereinthe Notes;
(2) any Taxes that are imposed or withheld as a result of the presentation failure of the Holder or Beneficial Owner of the Notes to comply with any reasonable written request, made to that Holder or Beneficial Owner in writing at least 30 days before any such withholding or deduction would be payable, by the Company or any Paying Agent to provide timely and accurate information concerning the nationality, residence or identity 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 Tax Jurisdiction as a precondition to any exemption from or reduction in all or part of such Taxes;
(3) any Note (in cases in which presentation is required) presented for payment more than 30 days after the later of the date on which the relevant payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant is first made available for payment to the terms thereof Holder or was made or duly provided for, Beneficial Owner (except to the extent that the Holder thereof or Beneficial Owner would have been entitled to such Additional Amounts if it had the Note been presented such Note for payment on any date within day during such 30-day period);
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, salesales, transfer, personal property or similar tax, assessment or other governmental chargeTaxes;
(C5) any tax, assessment Tax required to be withheld or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments deducted under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended, or any amended or successor versions of such Sections (“FATCA”), any current regulations or future Treasury Regulations or rulings promulgated other guidance thereunder, or any agreement (including any intergovernmental agreement) entered into in connection therewith, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any FATCA or an intergovernmental agreement between in respect of FATCA;
(6) any Taxes withheld, deducted or imposed because the United States and any other jurisdiction to implement FATCA, Holder or any agreement Beneficial Owner of the Notes does not deal at arm’s length with the U.S. Internal Revenue Service under FATCA; orCompany or a relevant Guarantor or Paying Agent for purposes of the Income Tax Act (Canada) at a relevant time;
(E7) any combination of taxesTaxes withheld, duties, assessments deducted or other governmental charges referred imposed on a payment on or with respect to in the preceding clauses (A), (B), (C) and (D); or
(ii) Notes to a Holder that is a fiduciary, a partnership or a person other than the sole beneficial owner Beneficial Owner of any payment to such payment, if such Taxes would not have been imposed had the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, or a member of that such partnership or a beneficial owner who would not have been entitled to the Beneficial Owner of such Additional Amounts had that beneficiary, settlor, partner or beneficial owner payment been the Holder thereofof the Note; or
(8) any combination of items (1) through (7) of this Section 4.18(a).
(b) If the Company or any Guarantor becomes aware that it shall be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes, the Company will deliver to the Trustees on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Company shall notify the Trustees promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate must also set forth any other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to Holders on the relevant payment date. The Trustees shall be entitled to rely solely on such Officer’s 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.
(c) The Company or the relevant Guarantor shall make all withholdings and deductions required by law and shall remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law. Upon request, the Company shall 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 so deducted or withheld.
(d) Whenever in this Indenture there is mentioned mentioned, in any context (i) the payment of principal of(and premium, and if any), (ii) redemption prices or purchase prices in connection with a redemption or repurchase of Notes, (iii) interest, or (iv) any premium other amount payable under or interest on, with respect to any Note or under any Subsidiary Guarantee or JV Subsidiary Guaranteeof the Notes, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The Company and the Guarantors, jointly and severally, shall indemnify each Trustee and each Holder or Beneficial Owner of the Notes for and hold them harmless against the full amount of (i) any Taxes, other than Excluded Taxes, paid by or on behalf of such Trustee or such Holder or Beneficial Owner in connection with payments made under or with respect to the Notes or the Note Guarantees held by such Holder or Beneficial Owner and (ii) any Taxes, other than Excluded Taxes, levied or imposed with respect to any reimbursement under the foregoing clause (i) or this clause (ii). A certificate as to the amount of such requested indemnification, delivered by such Trustee or such Holder, shall be conclusive absent manifest error. In addition, the Company shall pay and indemnify the Trustees and each 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 execution, delivery or registration of the Notes on the Issue Date or with respect to payments on the Notes.
Appears in 1 contract
Sources: Indenture (Taseko Mines LTD)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on that the Issuer makes under or with respect to the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will shall be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments by or within on behalf of any jurisdiction in which the Company, a Surviving Person Issuer is incorporated or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or otherwise resident for tax purposes (or from or through which any of the foregoing makes any payment on the Notes or by or within any political subdivision or taxing governmental authority thereof of or therein), including, without limitation, in any of the PRC foregoing having power to tax (each, as applicable, a “Relevant Taxing Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary GuarantorIssuer, as the case may be, will is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If the Issuer (or any Agent on its behalf) is required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, the Issuer, as the case may be, shall pay such additional amounts (“Additional Amounts”) as will result in receipt by may be necessary to ensure that the Holder of each Note of such amounts as would have been net amount received by such each Holder had no after such withholding or deduction (including any withholding or deduction in respect of any Additional Amounts) will not be less than the amount the Holder would have received if such Taxes had not been requiredwithheld or deducted.
(b) The Issuer shall not, except that no however, pay Additional Amounts shall be payable:
(i) for in respect or on account of:
(Ai) any taxTaxes, duty, assessment or other governmental charge that which would not have been imposed by the Relevant Taxing Jurisdiction in which such Taxes are imposed but for:
(1) the existence of any present or former connection between for the Holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner Notes being or having been a nationalcitizen, domiciliary resident or resident of such Relevant Jurisdiction or treated as a resident national thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereintherein or having any other present or former connection with such Relevant Taxing Jurisdiction (other than the mere receipt, ownership, holding or disposition of the Notes, or by reason of the receipt of any payments in respect of any Note, or the exercise or enforcement of rights under any Notes);
(2ii) any Taxes that are imposed or withheld by reason of the failure of the Holder or beneficial owner of the Notes, following the Issuer’s written request, to comply with any certification, identification, information or other reporting requirements (to the extent such Holder or beneficial owner is legally eligible to do so), whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner, as appropriate, is not resident in the Relevant Taxing Jurisdiction);
(iii) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes;
(v) any Tax imposed on or with respect to any payment by the Issuer to a Holder if such Holder is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment to the extent that Taxes would not have been imposed on such payment had such Holder been the sole beneficial owner of such Note;
(vi) any Tax that is imposed on or with respect to a Note 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 Notes to another Paying Agent in a member state of the European Union;
(vii) any Taxes that were imposed as a result of the presentation of such a Note for payment (in cases in which where presentation is required) more than 30 days after the later of the date on which the relevant payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant is first made available to the terms thereof or was made or duly provided for, Holder (except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had the Note been presented such Note for payment on any date within the last day of such 30-day period);
(3viii) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as in respect of any Taxes where such withholding or deduction is imposed on a payment to which Additional Amounts would have otherwise been payable an individual and is required to be made pursuant to the European Council Directive 2003/48/EC, European Council Directive 2014/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meetings of November 26-27, 2000 or any subsequent Council meeting amending or supplementing those conclusions on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, any such HolderDirective; or
(4ix) any combination of any of the presentation above. Such Additional Amounts also will not be payable where, had the beneficial owner of such the Note (in cases in which presentation is required) for payment in been the Relevant Jurisdiction or the jurisdiction through which payments are madeHolder, unless such Note could it would not have been presented for entitled to payment elsewhere;
of Additional Amounts by reason of clauses (Bi) to (ix) inclusive above. In addition, any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest amounts to be paid on the Notes will be paid net of any deduction or from payments under the Subsidiary Guarantees withholding imposed or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “FATCACode”), any current or future Treasury Regulations regulations or rulings promulgated thereunderofficial interpretations thereof, any lawagreement entered into pursuant to Section 1471(b) of the Code, regulation or other official guidance enacted in any jurisdiction implementing FATCAfiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement entered into in connection with the U.S. Internal Revenue Service under FATCA; or
(E) any combination implementation of taxessuch Sections of the Code, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would no Additional Amounts will be required to be included paid on account of any such deduction or withholding.
(c) The Issuer shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in the income accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciaryNotes is due and payable, if the Issuer 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 a member of with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Issuer shall deliver to the Trustee an Officer’s Certificate stating that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Trustee and the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that beneficiarysuch payments are necessary. The Issuer shall promptly publish a notice in accordance with Section 10.01 stating that such Additional Amounts will be payable and describing its obligations to pay such amounts. In addition, settlorthe Issuer shall pay any present or future stamp, partner issue, registration, court, documentary, excise or beneficial owner been property taxes or other similar taxes, charges and duties, including, without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (i) the execution, issue, delivery or registration of the Notes or any other document or instrument referred to thereunder, or (ii) the receipt of any payments with respect to, or enforcement of, the Notes. Upon written request, the Issuer will furnish to the Trustee and the Paying Agent or a Holder thereofas soon as possible following such request copies of tax receipts evidencing the payment by the Issuer (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 10.01, in such form as provided in the normal course by the taxing authority imposing such Taxes and as may be reasonably available to the Issuer. If, notwithstanding the efforts of the Issuer to obtain such receipts, the same are not obtainable, the Issuer will provide the Trustee, the Paying Agent or such Holder with other evidence reasonably satisfactory to the Trustee, the Paying Agent or holder of such payments by the Issuer. If reasonably requested by the Trustee, the Issuer will provide to the Trustee such information as may be in the possession of the Issuer (and not otherwise in the possession of the Trustee) to enable the Trustee to determine the amount of any withholding Taxes attributable to any particular Holder(s); provided, however, that in no event shall the Issuer be required to disclose any information that it reasonably deems to be confidential.
(be) Whenever there is mentioned this Indenture refers to, in any context context, the payment of principal ofprincipal, and premium, if any, interest or any premium other amount payable under or interest on, with respect to any Note or under any Subsidiary Guarantee or JV Subsidiary GuaranteeNote, such mention shall be deemed to include reference includes the payment of Additional Amounts provided for in Amounts, if applicable.
(f) This Section 4.04 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the extent that, in Issuer is incorporated or otherwise resident for tax purposes or any jurisdiction from or through which such context, Additional Amounts are, were person makes any payment on the Notes and any political subdivision or would be payable in respect thereoftaxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (TIG Midco LTD)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are madeTaxes, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person Company or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such withholding or deduction which is required by law or by regulation or governmental policy having the force of law, and will pay additional amounts (“Additional Amounts”) as will result in receipt by the Holder holder of each Note or the Guarantees, as the case may be, of such amounts as would have been received by such Holder holder had no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(ia) for or on account of:
(Ai) any tax, duty, assessment or other governmental charge Tax that would not have been imposed but for:
(1A) the existence of any present or former connection between the Holder holder or beneficial owner of such Note or Guarantee, as the case may be, and the Relevant Jurisdiction or Governmental Authority imposing the jurisdiction through which payments are made, Tax other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder holder or beneficial owner being or having been a national, domiciliary or resident of the jurisdiction of such Relevant Jurisdiction Governmental Authority 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;
(2B) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that the Holder holder thereof would have been entitled to such Additional Amounts if it had presented such Note for payment on any date within such 30-day period;
(3C) the failure of the Holder holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor Company or any JV Subsidiary Guarantor addressed to the Holder holder or beneficial owner, as the case may be, to provide information concerning such Holderholder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are madeGovernmental Authority, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce would have reduced or eliminate eliminated any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; orholder;
(4D) the presentation of such Note (in cases in which presentation is required) for payment in a jurisdiction in which the Relevant Jurisdiction Company, a Surviving Person, or the jurisdiction through which payments are madea Guarantor is resident for tax purposes, unless such Note could not have been presented for payment elsewhere;
(Bii) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental chargeTax;
(Ciii) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) that is imposed or levied on a payment to an individual and interest is required to be made pursuant to European Council Directive 2003/48/EC on the Notes taxation of savings income or from payments under the Subsidiary Guarantees any law implementing or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAcomplying with, or any agreement with the U.S. Internal Revenue Service under FATCAintroduced in order to conform to, such Directive; or
(Eiv) any combination of taxes, duties, assessments or other governmental charges Taxes referred to in the preceding clauses (A), (B), (Ci) and (Dii); or
(iib) with respect to any payment of the principal of, or premium, if any, or interest on, such Note or any payment under any Guarantee to a Holder that holder, if the holder is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership the partnership, or a the beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlorsettler, partner or beneficial owner been the Holder holder thereof.
(b) . Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Additional Amounts. (a) All Except as provided below, the Company or any Guarantor shall make all payments of principal of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made Securities without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments assessments, fees, levies or other governmental charges of whatever any nature and any fines, penalties or interest related thereto (collectively, “Taxes”) imposed by Brazil or levied by or within any the jurisdiction in which the Company, a Surviving Person Paying Agent or an applicable Subsidiary Guarantor or JV Subsidiary any Guarantor is organized or resident for tax purposes (from or through which payment is made, or in each case, any political subdivision or taxing governmental authority thereof or therein), including, without limitation, of those jurisdictions having the PRC power to tax (each, as applicable, a “Relevant Taxing Jurisdiction”), . If the Company or any jurisdiction through which payments are madeGuarantor is required by law to withhold or deduct any such Taxes, unless except as provided below, the Company or such Guarantor shall pay the Holders any additional amounts necessary to ensure that they receive the same amount as they would have received without such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder had no such withholding ). The Company or deduction been requiredany Guarantor shall not, except that no however, pay any Additional Amounts shall be payablein connection with any Tax that is imposed due to or in respect of any of the following:
(i) for the Holder or beneficial owner has some connection (present or former) with the Taxing Jurisdiction other than merely holding the Securities or receiving principal or interest payments on account of:the Securities (such as, without limitation, citizenship, nationality, residence, domicile, or existence of a business, a permanent establishment, a dependent agent, a place of business or a place of management present or deemed present within the Taxing Jurisdiction);
(Aii) any Tax imposed on, or measured by, net income;
(iii) the failure of a Holder to comply with a request by the Company or any Guarantor to satisfy any certification, identification or other reporting requirements, imposed as a precondition to exemption from or reduction in the rate of such tax by statute, treaty, regulation or administrative practices, concerning nationality, residence or connection with a Taxing Jurisdiction; provided that at least 30 days prior to the first payment date with respect to which compliance with such certification, identification or other reporting requirement is required, the Holder has been notified by the Company or the Paying Agent that such compliance is required;
(iv) if, where presentation is required, the Holder has failed to present its Securities within 30 days after the date such payment was due and payable or such payment was provided for, whichever is later;
(v) where any Tax is imposed on a payment on the Securities and is required to be made pursuant to Council Directive 2003/48/EC of the Council of the European Union on the taxation of income in the form of interest payments (or any European Union Directive otherwise implementing the conclusions of the ECOFIN Council Meeting of 26 and 27 November 2000) or any law implementing or complying with, or introduced in order to conform to, any such Directive;
(vi) if, where presentation is required, the Holder or beneficial owner could avoid any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) by presenting the existence of any present or former connection between the Holder or beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are maderelevant Securities for payment to, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Jurisdiction or treated as a resident thereof or being or having been physically present or engaged another paying agent located in a trade or business therein or having or having had a permanent establishment thereinmember state of the European Union;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(Bvii) any estate, inheritance, gift, salesales, transfer, personal property or other similar tax, assessment or other governmental charge;taxes; and
(Cviii) any tax, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding or deduction from payments of principal, premium (if any) and interest on the Notes made under or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciarySecurities.
(b) The Company or any Guarantor shall also (i) make such withholding or deduction and (ii) remit the full amount withheld or deducted to the relevant taxing authority in accordance with applicable law. Following written request from the Trustee, the Company shall furnish to the Trustee, as soon as practicable after the date of payment of any such Taxes, certified copies of tax receipts or, if such receipts are not obtainable, documentation reasonably satisfactory to the Trustee evidencing such payment by the Company or a member such Guarantor. Upon written request from any Holder to the Trustee, copies of such receipts or other documentation, as the case may be, shall be made available to the Holder. At least 10 Business Days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Company or any Guarantor is obligated to pay Additional Amounts with respect to such payment, the Company or any Guarantor shall deliver to the Trustee an officers’ certificate stating that partnership Additional Amounts will be payable, the amounts so payable and setting forth such other information as the Trustee may reasonably require for tax purposes.
(c) The Company or a beneficial owner who any Guarantor shall, upon the written request of any Holder, indemnify and hold harmless and reimburse such Holder for the amount of any Taxes imposed by any Taxing Jurisdiction (other than any such Taxes for which the Holder would not have been entitled to such receive Additional Amounts had pursuant to any of the conditions described in the second paragraph of this Section 10.12, or Taxes that beneficiaryresult from the gross negligence or unreasonable delay of such Holder) so imposed on, settlorand paid by, partner such Holder as a result of any payment of principal or beneficial owner been interest on the Securities, so that the net amount received by such Holder after such reimbursement would not be less than the net amount the Holder thereofwould have received if such Taxes had not been imposed or levied and so paid. Holders shall be obligated to provide reasonable documentation and to cooperate with the Company in connection with the foregoing.
(bd) Whenever there The Company or any Guarantor shall pay any stamp, administrative, court, documentary, excise or similar taxes arising in a Taxing Jurisdiction in connection with the Securities and shall indemnify the Holders for any such taxes paid by Holders.
(e) If European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 is mentioned brought into force and the Company is otherwise using a paying agent located in a member state of the European Union, the Company shall use reasonable efforts to maintain a paying agent in a European Union member state that will not be obliged to withhold or deduct tax pursuant to the Directive; provided that the Company shall not be required to maintain any context such paying agent if doing so would be detrimental to the payment of principal ofCompany or any Guarantor.
(f) All references to principal, and any premium interest or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention other amounts payable on the Securities shall be deemed to include payment of any Additional Amounts provided for in payable by the Company or any Guarantor under the Securities or this Indenture to Indenture. The foregoing obligations shall survive any termination, defeasance or discharge of the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofSecurities and this Indenture.
Appears in 1 contract
Additional Amounts. (a) All If, following any transactions permitted by Section 5.01 of this Indenture, the Surviving Person is organized other than under the laws of the United States, any State thereof or the District of Columbia, all payments of principal of, and premium (if any) and interest on made by the Surviving Person under or with respect to the Notes or under the Subsidiary Guarantees and JV 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 penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of the jurisdiction of organization of the Surviving Person or any political subdivision thereof or any taxing authority therein (each a “Relevant Taxing Jurisdiction”), unless the Surviving Person is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. If the Surviving Person is so required to withhold or deduct any amount for, or on account of, such Taxes from any present payment made under or future taxeswith respect to the Notes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will shall pay such additional amounts (“Additional Amounts”) as will result in receipt by may be necessary so that the Holder of each Note of such amounts as would have been net amount received by such each Holder had no (including 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 requiredrequired to be withheld or deducted; provided, except however, that no the foregoing obligation to pay Additional Amounts shall be payable:
does not apply to (i) for or on account of:
(A1) any tax, duty, assessment or other governmental charge Taxes that would not have been so imposed but for:
(1) for the existence of any present or 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 a Relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership or holding outside of the Surviving Person’s country of incorporation of such Note); (2) any Taxes that are imposed or withheld by reason of the failure by the relevant Holder or the beneficial owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner Notes to comply with a timely written request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor Person addressed to the Holder such Holder, after reasonable notice, to provide information certification, information, documents or other evidence concerning such Holder’s or its beneficial owner’s the nationality, residenceresidence or identity of such Holder or such beneficial owner or to make any declaration or similar claim or satisfy any other reporting requirement relating to such matters, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under by a statute, treaty, regulation or administrative practice of the tax laws applicable Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of, all or part of such Note Taxes; (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B3) any estate, inheritance, gift, sale, transfer, personal property Taxes withheld or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections deducted pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”or any amended or successor version of such Sections), any current or future U.S. Treasury Regulations or rulings regulations promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, interpretations thereof or any agreement agreements (including any law implementing any such agreement) entered into in connection with the U.S. Internal Revenue Service implementation thereof; (4) any Taxes that are payable otherwise than by deduction or withholding from payments made under FATCAor with respect to the debt securities; or
(E5) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; or (6) any combination of taxesthe items (1) through (5) above; nor shall the Surviving Person be required to pay Additional Amounts (a) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment within 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, duties, assessments or other governmental charges referred whichever is later (except to in the preceding clauses (Aextent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period), or (B)b) with respect to any payment of principal of (or premium, (Cif any, on) and (D); or
(ii) or interest on such Note to a any Holder that who is a fiduciary, fiduciary or partnership or any person other than the sole beneficial owner of any payment such payment, to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, or a member of that such a partnership or a the beneficial owner who of such payment would not have been entitled to such the Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the actual Holder thereof.
(b) Whenever there is mentioned in any context of such Note. Upon request, the Surviving Person shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of principal ofthe Taxes with respect to which Additional Amounts are paid. Whenever in this Indenture, and any premium a Board Resolution, a supplemental indenture hereto or interest onan Officers’ Certificate, or in any Note there is mentioned, in any context: (1) the payment of principal; (2) purchase prices in connection with a purchase of Notes; (3) interest; or under (4) any Subsidiary Guarantee other amount payable on or JV Subsidiary Guaranteewith respect to any of the Notes, such mention reference shall be deemed to include payment of Additional Amounts provided for in this Indenture Section 4.09 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The obligations described under this Section 4.09 shall survive any termination or discharge of this Indenture and any defeasance of the Notes and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Company or any Surviving Person is organized or any political subdivision or taxing authority or agency thereof or therein.
(e) Section 5.01 of the Original Indenture is amended by deleting clauses (c) and (f) and inserting “[Reserved]” in lieu of each thereof.
(f) Section 6.01 of the Original Indenture is amended by substituting the references to “$25.0 million” with references to “$50.0 million” in clauses (4) and (7) thereof.
(g) Section 7.02(l) of the Original Indenture is amended to read, “In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.”
(h) Section 8.03 of the Original Indenture is amended to read:
Appears in 1 contract
Additional Amounts. (a) All payments of principal of, or in respect of, principal of and any premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will Guarantee shall be made free and clear of, and without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed imposed, withheld, or levied assessed by or within on behalf of any jurisdiction in which jurisdiction, other than the CompanyUnited States, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC therein (each, as applicable, each a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person Financeco or the applicable Subsidiary Guarantor or JV Subsidiary GuarantorSolectron, as the case may be, will shall pay such additional amounts of, or in respect of, principal of and any premium and interest on the Notes or the Guarantee (“Additional Amounts”) as will result in the receipt by the Holder Holders of each Note of such the amounts as that would have been received by such Holder them had no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(i) payable for or on account of:
(A) of any tax, duty, assessment assessment, or other governmental charge that which would not have been imposed but forfor the fact that such Holder:
(1a) had some connection with the existence Relevant Jurisdiction other than the mere ownership of, receipt of any present payment under, or former connection between the Holder or beneficial owner enforcement of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding Guarantee; or
(b) presented such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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;
(2) the presentation of such Note (in cases in which presentation is required) for payment more than 30 days after the later of the date on which the payment in respect of the principal of, premium, if any, and interest on, such Note or Guarantee 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request whichever is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) later. Whenever there is mentioned mentioned, in any context context, the payment of the principal of, and of or any premium or interest on, or in respect of, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to this Indenture.
Appears in 1 contract
Sources: Indenture (Solectron Corp)
Additional Amounts. (a) All payments made by or on behalf any of principal of, and premium (if any) and interest on the Issuers or any Subsidiary Guarantor under or with respect to the Notes or under the any Subsidiary Guarantees and JV Subsidiary Guarantees Guarantee will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, Taxes unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that If any such withholding or deduction is so requiredimposed by (i) any jurisdiction in which any of the Issuers or any Subsidiary Guarantor is organized, resident or engaged in business for tax purposes or any political subdivision thereof or therein, or (ii) any jurisdiction from or through which any payment is made by or on behalf of any of the Issuers or any Subsidiary Guarantor (including the jurisdiction of any paying agent for the Notes) or any political subdivision thereof or therein (each, a “Taxing Jurisdiction”), in respect of any payment made under or with respect to the Notes or any Subsidiary Guarantee (including payments of principal, redemption price, interest or premium (if any)), the Company, a Surviving Person applicable Issuer or the applicable Subsidiary Guarantor or JV such Subsidiary Guarantor, as the case may be, will pay (together with such payments) such additional amounts (“Additional Amounts”) as will result in receipt by may be necessary so that the Holder of each Note of such amounts as would have been net amount received by such Holder had no each beneficial owner of Notes after such withholding or deduction (including any withholding or deduction attributable to the Additional Amounts) by any applicable withholding agent will equal the amount the beneficial owner would have received if no such Taxes had been requiredwithheld or deducted; provided, except however, that no Additional Amounts shall will be payablepayable with respect to:
(i) for or on account of:
(Aa) any taxTax, duty, assessment or other governmental charge that to the extent such Tax would not have been imposed but for:
(1) for the existence of any present or former connection between the Holder holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over the relevant holder, if such holder is an estate, nominee, trust, partnership, limited liability company or corporation) or the beneficial owner of such Note the Notes and the Relevant relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment or a dependent agent in, or being physically present in, the jurisdiction through which payments are made, Taxing Jurisdiction) other than merely holding such a connection arising from the acquisition, ownership or disposition of a Note or enforcement of rights under a Note or under any Subsidiary Guarantee or the receipt of payments thereunder under or under in respect of a Subsidiary Guarantee Note or JV any Subsidiary Guarantee;
(b) any Tax, including, without limitation, to the extent such Holder tax is imposed or withheld as a result of the failure of the holder or beneficial owner being of a Note to comply with any reasonable written request of the Dutch Issuer, addressed to the holder or having been beneficial owner, after reasonable notice, to satisfy any certification, identification or other reporting requirements that are a nationalprecondition under applicable law, domiciliary treaty, regulation or resident administrative practice of the applicable Taxing Jurisdiction to exemption from, or reduction of, such Relevant Jurisdiction Tax, but in each case, only to the extent such holder or treated as a resident thereof beneficial owner is legally eligible to provide such certification or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereindocumentation;
(2c) any Tax, to the extent such Tax was imposed as a result of the presentation of such a Note for payment (where Notes are in cases in which the form of certificated Notes and presentation is required) more than 30 days after the later of the date on which the such payment of the principal of, premium, if any, and interest on, such Note became was due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later (except to the extent that the Holder thereof holder or beneficial owner would have been entitled to such Additional Amounts if it had the Note been presented such Note for payment on any date within such 30-day period);
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(Bd) any estate, inheritance, gift, salesales, value added, use, transfer, personal property or similar tax, assessment or other governmental chargeTax;
(Ce) any tax, assessment Tax payable other than by deduction or other governmental charge withholding in respect of payments under or with respect to a Note or Subsidiary Guarantee;
(f) any Taxes that are imposed pursuant to Sections 1471 through 1474 of the Code as of the Issue Date (or any amended or successor version of such sections that is substantively comparable and not materially more onerous to comply with), any regulations promulgated thereunder, any official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code as of the Issue Date (or any amended or successor version described above) and any intergovernmental agreement (or related law, regulations or official administrative guidance) implementing the foregoing;
(g) 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 beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to another paying agent;
(i) any combination of (a) through (g) above. If any of the Issuers or any Subsidiary Guarantor, as applicable, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Subsidiary Guarantee, the Dutch Issuer will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises less than 45 days prior to that payment date, in which case the Dutch Issuer shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable otherwise than by and the amount estimated to be so payable. The 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. The applicable withholding agent will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Authority in accordance with applicable law. If it is the applicable withholding agent, any of the Issuers or any Subsidiary Guarantor will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of Taxes so deducted or withheld from payments each Taxing Jurisdiction imposing such Taxes, in such form as provided in the ordinary course by the Taxing Jurisdiction and as is reasonably available to the relevant Issuer or Subsidiary Guarantor, and will provide such certified copies to the Trustee. If certified copies of such Tax receipts are not reasonably obtainable, the applicable Issuer or Subsidiary Guarantor shall provide the Trustee other evidence of payment reasonably satisfactory to the Trustee. Such certified copies or other evidence shall be made available to holders upon request. Whenever in this Indenture there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, premium (if any) and ), interest on or of any other amount payable under or with respect to any of the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Issuers and the Subsidiary Guarantors will pay any stamp, issue, registration, court or documentary Taxes, or any other excise or property Taxes, which in any case arise in any jurisdiction from the execution, issuance, delivery, registration or enforcement of the Notes, any Subsidiary Guarantee, this Indenture, or any other document or instrument referred to therein (other than a transfer or exchange of the Notes by a holder), or the receipt of any payments with respect to the Notes, excluding any such Taxes imposed by any jurisdiction that is not a Taxing Jurisdiction (other than any such Taxes resulting from, or required to be paid in connection with, the enforcement of the Notes, any Subsidiary Guarantee, this Indenture, or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes or any Subsidiary Guarantee). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor to any of the Issuers or Subsidiary Guarantor and to any jurisdiction in which any successor is organized, resident or engaged in business for tax purposes, or any jurisdiction from or through which any payment on the Notes or any Subsidiary Guarantee is made by or on behalf of a successor, and, in each case, any political subdivision or Taxing Authority thereof or therein.
Appears in 1 contract
Sources: Indenture (Stars Group Inc.)
Additional Amounts. (a) All Each of the Company and the Guarantor will make all payments of principal ofto the Initial Purchasers under this Agreement without set-off or counterclaim, and premium (if any) free and interest on the Notes clear of and without deduction or under the Subsidiary Guarantees and JV Subsidiary Guarantees will be made without withholding or deduction for, for or on account of, any present or future taxes, levies, imposts, duties, fees, assessments or governmental other charges of whatever nature imposed by Chile or levied by any governmental agency or within body or other political subdivision or taxing authority thereof or therein or any jurisdiction from or through which a payment is made or in which the Company (or any successor to the Company) or the Guarantor, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor as applicable, is organized or resident for tax purposes and all interest, penalties or similar liabilities with respect thereto (or any political subdivision or taxing authority thereof or thereincollectively, “Taxes”), including, without limitation, unless the PRC (eachCompany or the Guarantor, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required compelled by law to deduct or by regulation or governmental policy having the force of lawwithhold such Taxes. In the event that any such withholding or deduction is so requiredevent, the Company, a Surviving Person Company or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as applicable, shall increase the case may beamount paid so that, will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note after taking into account all required deductions or withholding of such amounts as Taxes, each Initial Purchaser shall receive an amount equal to what would have been received by in the absence of such Holder had no deduction or withholding. No such withholding or deduction been required, except that no Additional Amounts additional amounts shall be payable:
payable in respect of (i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that Taxes which would not have been imposed but for:
(1) for the existence of any present or former connection between the Holder or beneficial owner of such Note Initial Purchasers and the Relevant Jurisdiction or the jurisdiction through which payments are madeimposing such Taxes, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner including being or having been a nationalresident thereof, domiciliary 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 therein, or having or having had a permanent establishment therein;
, other than the mere holding of Securities or the receipt of payment thereon or (2ii) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became Taxes imposed 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 date within such 30-day period;
(3) the failure of such Initial Purchaser or its agent, as the Holder or beneficial owner case may be, to comply with a timely reasonable request of the CompanyCompany or the Guarantor, a Surviving Personas applicable, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide any form, certificate, document, or other information concerning such Holder’s or its beneficial owner’s the nationality, residence, identity identity, or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, imposing such Taxes if and compliance is required as a precondition to the extent reduction or elimination of such Taxes and the Company has notified the Initial Purchaser in writing of such certification, identification or other reporting requirements at least 15 days before the applicable payment date (for the avoidance of doubt, provided that due and timely compliance with such request is required under shall not require an Initial Purchaser or its agent, as the tax laws of such jurisdiction in order case may be, to reduce or eliminate provide any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are madematerially more onerous information, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment documents or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise evidence than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required had it been required to be included in the income under the laws of a Relevant Jurisdiction file U.S. IRS Form W-8BEN, W-8BEN-E or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereofW-9).
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Appears in 1 contract
Sources: Purchase Agreement
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on made under or with respect to the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees will Securities shall be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall be payable:
(i) for or on account of:
(A) any tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter "Taxes") imposed or levied by or on behalf of the government of The Netherlands or any political subdivision or any authority or agency therein or thereof having power to tax, or within any other jurisdiction in which the Issuer is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment is made (each a "Relevant Taxing Jurisdiction"), unless it is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If the Issuer is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Securities, the Issuer shall pay such additional amounts ("Additional Amounts") as may be necessary so that the net amount received by the Holders (including Additional Amounts) after such withholding or deduction will not be less than the amount the Holders would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to (1) any Taxes that would not have been so imposed but for:
(1) for the existence of any present or former connection between the relevant Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of such Note power over the relevant Holder, if the relevant Holder is an estate, nominee, trust or corporation) and the Relevant Taxing Jurisdiction (other than the mere receipt of such payment or the jurisdiction through which payments are made, other than merely ownership or holding such Note or the receipt outside of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident The Netherlands of such Relevant Jurisdiction Security); 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, salesales, excise, transfer, personal property tax or similar tax, assessment or other governmental charge;
; nor shall the Issuer be required to pay Additional Amounts (Ca) any taxif the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Security for payment within 30 days after the date on which such payment or such Security became due and payable or the date on which payment thereof is duly provided for, assessment or other governmental charge whichever is later (except to the extent that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest the Holder would have been entitled to Additional Amounts had the Security been presented on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 last day of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (Asuch 30 day period), (B)b) with respect to any payment of principal of (or premium, (Cif any, on) and (D); or
(ii) or interest on such Security to a any Holder that who is a fiduciary, fiduciary or partnership or any person other than the sole beneficial owner of any payment such payment, to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, or a member of that such a partnership or a the beneficial owner who of such payment would not have been entitled to such the Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the actual Holder thereof.
of such Security, (bc) Whenever there is mentioned if the Securities are presented for payment in The Netherlands; provided, however, that at such time the Issuer has at least one paying agent in the European Union (other than in The Netherlands), or (d) if the Securities are presented for payment by, on behalf of, a Holder who would be able to avoid withholding or deduction by presenting any context form or certificate and/or making a declaration of non-residence or similar claim for exemption but fails to do so. Upon request, the Issuer shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of principal ofthe Taxes with respect to which Additional Amounts are paid. Whenever in this Indenture there is mentioned, and in any premium context: (1) the payment of principal; (2) purchase prices in connection with a purchase of Securities; (3) interest; or interest on, (4) any Note other amount payable on or under with respect to any Subsidiary Guarantee or JV Subsidiary Guaranteeof the Securities, such mention reference shall be deemed to include payment of Additional Amounts provided for in this Indenture Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Issuer 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 any jurisdiction from the execution, delivery, enforcement or registration of the Securities, this Indenture or any other document or instrument in relation thereof, or the receipt of any payments with respect to the Securities, excluding such taxes, charges or similar levies imposed by any jurisdiction outside of The Netherlands, the jurisdiction of incorporation of any successor of the Issuer or any jurisdiction in which a paying agent is located, and the Issuer will indemnify the Holders for any such taxes paid by such Holders. The obligations described under this Section shall survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (GSV Inc /Fl/)
Additional Amounts. (a) All payments Amounts to be paid on any series of principal of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees Subordinated Debt Securities will be made without deduction or withholding or deduction for, or on account of, any and all present or and future income, stamp and other taxes, levies, imposts, duties, assessments charges or governmental charges of whatever nature imposed fees imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which on behalf of the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (United Kingdom or any political subdivision or taxing authority thereof or therein), including, without limitation, therein having the PRC power to tax (each, as applicable, a the “Relevant Taxing Jurisdiction”), or any jurisdiction through which payments are made, unless such deduction or withholding or deduction is required by law or by regulation or governmental policy having the force of law. In If at any time a Taxing Jurisdiction requires the event that any Company to make such withholding deduction or deduction is so requiredwithholding, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, Company will pay such additional amounts with respect to the principal of, interest and any other payment on, the Subordinated Debt Securities (“Additional Amounts”) as will result that are necessary in receipt by order that the Holder net amounts paid to the Holders of each Note Subordinated Debt Securities of such the particular series, after the deduction or withholding, shall equal the amounts as which would have been received by such Holder payable on the Subordinated Debt Securities if the deduction or withholding had no such withholding or deduction not been required. However, except that no Additional Amounts shall be payablethis will not apply to any such tax, levy, impost, duty, charge or fee, which would not have been deducted or withheld but for the fact that:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or beneficial owner the Beneficial Owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are madeSubordinated Debt Security is a domiciliary, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary national or resident of such Relevant Jurisdiction of, or treated as a resident thereof engaging in business or being or having been physically present or engaged in a trade or business therein or having or having had maintaining a permanent establishment therein;or physically present in, the Taxing Jurisdiction or otherwise having some connection with the Taxing Jurisdiction other than the holding or ownership of a Subordinated Debt Security, or the collection of any payment of, or in respect of, principal of, or any interest or other payment on, any Subordinated Debt Security of the relevant series,
(2ii) except in the presentation case of such Note winding-up in the United Kingdom, the relevant Subordinated Debt Security is presented (in cases in which where presentation is required) for payment in the United Kingdom,
(iii) the relevant Subordinated Debt Security is presented (where presentation is required) for payment more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the Holder thereof would have been entitled to such the Additional Amounts if it had presented such Note on presenting the same for payment on any date within such at the close of that 30-day period;,
(3iv) the failure Holder or the Beneficial Owner of the relevant Subordinated Debt Security or the Beneficial Owner of any payment of, or in respect of, principal of, or any interest or other payment on, the Subordinated Debt Security failed to comply with a request of the Company or its liquidator or other authorized person addressed to the Holder (x) to provide information concerning the nationality, residence or identity of the Holder or beneficial owner the Beneficial Owner or (y) to comply with make any declaration or other similar claim to satisfy any requirement, which in the case of (x) or (y), is required or imposed by a timely request statute, treaty, regulation or administrative practice of the CompanyTaxing Jurisdiction as a precondition to exemption from all or part of the tax, a Surviving Personlevy, any Subsidiary Guarantor impost, duty, charge or fee,
(v) the withholding or deduction is required to be made pursuant to European Council Directive 2003/48/EC on the taxation of savings income, or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning directive amending, supplementing or replacing such Holder’s directive or its beneficial owner’s nationalityany law implementing or complying with, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction introduced in order to reduce conform to, such directive or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; ordirectives,
(4vi) the presentation of such Note relevant Subordinated Debt Security is presented (in cases in which where presentation is required) for payment in the Relevant Jurisdiction by or the jurisdiction through which payments are made, unless such Note could not on behalf of a Holder who would have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by able to avoid such withholding or deduction from payments of principal, premium (if any) and interest on by presenting the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);relevant Subordinated Debt Security to another paying agent,
(Dvii) any tax, assessment, the deduction or withholding or deduction required is imposed by sections 1471 through reason of Sections 1471- 1474 of the US Internal Revenue Code of 1986, as amended and the U.S. Treasury regulations thereunder or any agreement with the U.S. Internal Revenue Service in connection with these sections and regulations (“FATCA”), any current intergovernmental agreement between the United States and the United Kingdom or future Treasury Regulations any other jurisdiction with respect to FATCA, or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCAimplementing, or relating to, FATCA or any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAagreement, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(Eviii) any combination of taxessubclauses (i) through (vii) above, duties, assessments nor shall Additional Amounts be paid with respect to the principal of or any interest or other governmental charges referred payment on, the Subordinated Debt Securities to in the preceding clauses (A), (B), (C) and (D); or
(ii) to a any Holder that who is a fiduciary, fiduciary or partnership or any person other than the sole beneficial owner Beneficial Owner of any such payment to the extent that such payment would be required by the laws of any Taxing Jurisdiction to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, purposes of a beneficiary or partner or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a beneficial owner Beneficial Owner who would not have been entitled to such Additional Amounts Amounts, had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
(b) Holder. Whenever in this Subordinated Indenture there is mentioned mentioned, in any context context, the payment of the principal of or any interest or other payments on, or in respect of, and any premium or interest on, Subordinated Debt Security of any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, series such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to the provisions of this Section and as if express mention of the payment of Additional Amounts (if applicable) were made in any provisions hereof where such express mention is not made. Upon request from the Trustee or a paying agent, the Company shall provide information reasonably necessary and readily available in order to enable to the Trustee or paying agent to determine whether any withholding obligations under FATCA apply. None of the Company, the Trustee or a paying agent shall have any liability in connection with the Company’s or Trustee’s or paying agent’s compliance with any such withholding obligation under applicable law.
Appears in 1 contract
Sources: Fifth Supplemental Indenture (Lloyds Banking Group PLC)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on due to be made by Allstate Life to the Notes or Owner under the Subsidiary Guarantees and JV Subsidiary Guarantees terms of this Agreement will be made without any withholding or deduction for, for or on account of, of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied by or within on behalf of any jurisdiction governmental authority in which the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein), including, without limitation, United States having the PRC (each, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are madepower to tax, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that [Subject to Section 12, if any such withholding or deduction is required or if any such withholding or deduction is required under any indebtedness issued by the Owner that is secured by this Agreement, then Allstate Life will pay such additional amount ("Additional Amount") so required, that the Company, a Surviving Person net amount realized by the Owner or the holder or beneficial owner, as applicable, of such indebtedness ("Noteholder") (net of any such withholding or deduction under this Agreement or any such indebtedness) will equal the amount that would have been paid under this Agreement or any such indebtedness had no such deduction or withholding been required. Notwithstanding anything herein to the contrary, Allstate Life shall not be required to make any payment of any Additional Amount in accordance with the first paragraph of this Section 11 for or on account of
(i) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for the existence of (i) any present or former connection between the Owner or the Noteholder and the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) the Owner's or such Noteholder's status as a controlled foreign corporation for United States federal income tax purposes within the meaning of Section 957(a) of the Internal Revenue Code of 1986, as amended (the "Code") related within the meaning of Section 864(d)(4) of the Code, to Allstate Life, (iii) the Owner or such Noteholder being a bank for United States federal income tax purposes whose receipt of interest under this Agreement is described in Section 881(c)(3)(A) of the Code, (iv) the Owner or such Noteholder actually or constructively owning 10 percent or more of the total combined voting power of all classes of stock of Allstate Life entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) the Owner or such Noteholder being subject to income tax withholding or backup withholding as of the date of purchase by the Owner or such Noteholder;
(ii) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for the presentation of this Agreement or any such indebtedness referred to above (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(iii) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the Owner or a Noteholder to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the Owner or a Noteholder, if compliance is required by statute, by regulation, judicial or administrative interpretation, or by an applicable Subsidiary Guarantor income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or JV Subsidiary Guarantorother governmental charge;
(iv) any inheritance, gift, estate, personal property, sales or transfer tax;
(v) any tax that is payable otherwise than by withholding from payments with respect to this Agreement or any such indebtedness referred to above;
(vi) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on this Agreement being treated as contingent interest described in Section 871(h)(4) of the Code for United States federal income tax purposes, but only to the extent such treatment was disclosed in writing to the Owner or a Noteholder, as the case may be, will pay at the time the Owner or such additional amounts (“Additional Amounts”) Noteholder became the Owner or a Noteholder, as will result in receipt by the Holder of each Note of such amounts as would have been received by such Holder had no such withholding or deduction been required, except that no Additional Amounts shall be payable:case may be;
(i) for or on account of:
(Avii) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for:
(1) for an election by the existence Owner or a Noteholder, the effect of any present or former connection between the Holder or beneficial owner which is to make payment in respect of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant this Funding Agreement subject 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such HolderUntied States federal income tax; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(Eviii) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses items (Ai), (Bii), (Ciii), (iv), (v), (vi) and or (D); or
(iivii) to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereofabove.
(b) Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.]
Appears in 1 contract
Additional Amounts. (a) All payments Amounts to be paid on any series of principal of, and premium (if any) and interest on the Notes or under the Subsidiary Guarantees and JV Subsidiary Guarantees Subordinated Debt Securities will be made without deduction or withholding or deduction for, or on account of, any and all present or and future income, stamp and other taxes, levies, imposts, duties, assessments charges or governmental charges of whatever nature imposed fees imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which on behalf of the Company, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or resident for tax purposes (United Kingdom or any political subdivision or taxing authority thereof or therein), including, without limitation, therein having the PRC power to tax (each, as applicable, a the “Relevant Taxing Jurisdiction”), or any jurisdiction through which payments are made, unless such deduction or withholding is required by law. If at any time a Taxing Jurisdiction requires the Company to make such deduction or withholding, the Company will pay additional amounts with respect to withholding or deduction is required by law on payments of interest on (but not principal or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredother payments on), the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts Subordinated Debt Securities (“Additional Amounts”) as will result that are necessary in receipt by order that the Holder net amounts paid to the Holders of each Note Subordinated Debt Securities of such the particular series, after the deduction or withholding, shall equal the amounts as which would have been received by such Holder payable with respect to interest on the Subordinated Debt Securities if the deduction or withholding had no such withholding or deduction not been required. However, except this will not apply to any such amount with respect to interest that no Additional Amounts shall be payablewould not have been deducted or withheld but for the fact that:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or beneficial owner the Beneficial Owner of such Note and the Relevant Jurisdiction or the jurisdiction through which payments are madeSubordinated Debt Security is a domiciliary, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary national or resident of such Relevant Jurisdiction of, or treated as a resident thereof engaging in business or being or having been physically present or engaged in a trade or business therein or having or having had maintaining a permanent establishment therein;or physically present in, the Taxing Jurisdiction or otherwise having some connection with the Taxing Jurisdiction other than the holding or ownership of a Subordinated Debt Security, or the collection of any payment of, or in respect of, principal of, or any interest or other payment on, any Subordinated Debt Security of the relevant series,
(2ii) except in the presentation case of such Note a winding-up in the United Kingdom, the relevant Subordinated Debt Security is presented (in cases in which where presentation is required) for payment in the United Kingdom,
(iii) the relevant Subordinated Debt Security is presented (where presentation is required) for payment more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the Holder thereof would have been entitled to such the Additional Amounts if it had presented such Note on presenting the same for payment on any date within such 30-at the close of that 30 day period;,
(3iv) the failure Holder or the Beneficial Owner of the relevant Subordinated Debt Security or the Beneficial Owner of any payment of, or in respect of, principal of, or any interest or other payment on, the Subordinated Debt Security failed to comply with a request of the Company or its liquidator or other authorized person addressed to the Holder (x) to provide information concerning the nationality, residence or identity of the Holder or beneficial owner the Beneficial Owner or (y) to comply with make any declaration or other similar claim to satisfy any requirement, which in the case of (x) or (y), is required or imposed by a timely request statute, treaty, regulation or administrative practice of the CompanyTaxing Jurisdiction as a precondition to exemption from all or part of the tax, a Surviving Personlevy, impost, duty, charge or fee,
(v) the deduction or withholding is imposed by reason of any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to agreement with the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or U.S. Internal Revenue Service in connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(B) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections 1471 through Sections 1471-1474 of the US Internal Revenue Code of 1986, as amended and the U.S. Treasury regulations thereunder (“FATCA”), any current intergovernmental agreement between the United States and the United Kingdom or future Treasury Regulations any other jurisdiction with respect to FATCA, or rulings promulgated thereunder, any law, regulation or other official guidance enacted or issued in any jurisdiction implementing FATCAimplementing, or relating to, FATCA or any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAagreement, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(Evi) any combination of taxessubclauses (i) through (v) above, duties, assessments or other governmental charges referred nor shall Additional Amounts be paid with respect to in any payment on the preceding clauses (A), (B), (C) and (D); or
(ii) Subordinated Debt Securities to a any Holder that who is a fiduciary, fiduciary or partnership or any person other than the sole beneficial owner Beneficial Owner of any such payment to the extent that such payment would be required by the laws of any Taxing Jurisdiction to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, purposes of a beneficiary or partner or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a beneficial owner Beneficial Owner who would not have been entitled to such Additional Amounts with respect to interest on the Subordinated Debt Securities, had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
(b) Holder. Whenever in this Subordinated Indenture there is mentioned mentioned, in any context context, the payment of principal of, and interest on any premium or interest on, Subordinated Debt Security of any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, series such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to the provisions of this Section and as if express mention of the payment of Additional Amounts (if applicable) were made in any provisions hereof where such express mention is not made. Upon request from the Trustee or a paying agent, the Company shall provide information reasonably necessary and readily available in order to enable to the Trustee or paying agent to determine whether any withholding obligations under FATCA apply. None of the Company, the Trustee or a paying agent shall have any liability in connection with the Company’s or Trustee’s or paying agent’s compliance with any such withholding obligation under applicable law.
Appears in 1 contract
Sources: Ninth Supplemental Indenture (Lloyds Banking Group PLC)
Additional Amounts. (a) All payments and deliveries made by the Company with respect to the Notes, including, but not limited to, payments of principal of(including, and premium (if any) and interest on applicable, the Notes Tax Redemption Price, the Fundamental Change Repurchase Price, the Covered Disposition Offer Price or under the Subsidiary Guarantees and JV Subsidiary Guarantees will Registration Event Price), payments of interest, deliveries of Ordinary Shares upon conversion, shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed (including any interest, additions to tax or levied penalties applicable thereto) imposed, levied, collected, withheld or assessed by or within Sweden, or any other jurisdiction in which the Company, a Surviving Person Company is or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is deemed to be organized or resident for tax purposes (or from or through which payments or deliveries by or on behalf of the Company with respect to the Notes are made or deemed made or by or within any political subdivision thereof or any taxing authority therein or thereof or therein), including, without limitation, the PRC having power to tax (each, as applicable, a “Relevant Taxing Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding taxes, duties, assessments or deduction is so requiredgovernmental charges imposed or levied by or on behalf of a Relevant Taxing Jurisdiction are required to be withheld or deducted from any payments or deliveries made by the Company with respect to the Notes, the Company, a Surviving Person or Company shall pay to the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will pay Holder of each Note such additional amounts (“Additional Amounts”) as will result in receipt by may be necessary to ensure that the Holder of each Note of net amount received after such withholding or deduction (and after withholding or deducting any taxes on the Additional Amounts) shall equal the amounts as that would have been received by such Holder had no such withholding or deduction been required, except ; provided that no Additional Amounts shall be payable:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Holder or beneficial owner of such Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the relevant Holder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Jurisdiction or the jurisdiction through which payments are madeTaxing Jurisdiction, other than merely holding or enforcing rights under such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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 thereinthereunder;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided forRelevant Date, except to the extent that the Holder thereof or beneficial owner or such other person would have been entitled to such Additional Amounts if it had presented such on presenting the Note for payment or delivery on any date within during such 30-day period;; or
(3) the failure of the Holder or beneficial owner to comply with a timely request of from the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder Company to provide information certification, information, documents or other evidence concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any Relevant Jurisdiction declaration of non-residence or any other claim or filing for exemption from, or reduction in the jurisdiction through rate of, withholding taxes, to which payments are madeit is entitled or satisfy any other reporting requirement relating to such matters, if and to the extent that the Holder or beneficial owner is able to comply with such request and due and timely compliance with such request is required under by statute, treaty, regulation or administrative practice of the tax laws of such jurisdiction Relevant Taxing Jurisdiction in order to eliminate, or reduce or eliminate the rate of, any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction Holder or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewherebeneficial owner;
(B) any estate, inheritance, gift, saleuse, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(C) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on under or with respect to the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any)Notes;
(D) any tax, assessment, withholding or deduction required by sections Sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (or any amended or successor version of such Sections) (“FATCA”), any current or future U.S. Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAthe foregoing or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA; or;
(E) any combination of taxestax, duties, assessments assessment or other governmental charges charge imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such tax, assessment or governmental charge by presenting the relevant Note to, or otherwise accepting payment from, another paying agent; or
(F) to the extent a Holder or beneficial owner is entitled to (x) a refund of any amount required to be withheld or deducted by such Relevant Taxing Jurisdiction or (y) a tax credit as a result of any tax that gives rise (or would give rise) to the payment of an Additional Amount hereunder, it being understood that each Holder or beneficial owner shall comply with a timely request from the Company to provide any certification, information, documentation or other evidence as is reasonably requested by the Company or required by applicable law for the Company to determine whether such Holder or beneficial owner is entitled to any such refund or tax credit;
(G) any combination of taxes referred to in the preceding clauses (A), (B), (C), (D), (E) and (DF); or
(ii) with respect to a Holder that any payment of the principal of (including the Tax Redemption Price and the Fundamental Change Repurchase Price, if applicable) and interest on such Note or delivery of Ordinary Shares upon conversion of such Note to any Person who is a fiduciary, partnership or person Person other than the sole beneficial owner of any that payment to the extent that such payment no Additional Amounts would be required to be included in the income under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts payable had that beneficiary, settlor, partner or the beneficial owner been the Holder thereof.
(b) If the Company is required to make any deduction or withholding from any payments or deliveries with respect to the Notes, the Company shall deliver to the Holder official tax receipts evidencing the remittance to the relevant tax authorities of the amounts so withheld or deducted or, if official receipts are not obtainable, other documentation evidencing the payment of the amounts so withheld or deducted.
(c) Whenever there is mentioned in any context the payment of principal ofof(including the Tax Redemption Price, and any premium the Fundamental Change Repurchase Price, the Covered Disposition Offer Price or the Registration Event Price, if applicable), the payment of interest on, or the delivery of Ordinary Shares upon conversion of any Note or under any Subsidiary Guarantee or JV Subsidiary Guaranteeother amount payable with respect to such Note, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture these Conditions to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. For the avoidance of doubt, payments in respect of Additional Amounts may be made, at the Company’s option, by delivering to any Holder due Additional Amounts Interest Instruments in aggregate principal amount equal to such Additional Amount. Such PIK Payments shall not exceed $50 million in aggregate. Additional Amounts due in excess of this number shall be settled through cash payment.
(d) The Company shall promptly pay when due any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any Relevant Taxing Jurisdiction from the execution, delivery or registration of each Note or any other document or instrument referred to herein or therein, except for taxes, charges or similar levies resulting from any transfer of Notes except as provided in Section 2.07 (Mutilated, Destroyed, Lost or Stolen Notes) and Section 11.02(d) and Section 11.02(e) (
Appears in 1 contract
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on made by a Co-Issuer or a Guarantor under or with respect to the Notes or under the Subsidiary Guarantees and JV 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 taxes, duties, assessments or governmental charges of whatever nature Taxes imposed or levied by or within on behalf of any Taxing Authority in any jurisdiction in which the Company, a Surviving Person Co-Issuer or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is incorporated or organized or is (or is deemed to be) resident or doing business for tax purposes (or any political subdivision jurisdiction from or taxing authority thereof or therein), including, without limitation, the PRC through which payment is made (each, as applicable, each a “Relevant Taxing Jurisdiction”), or unless any jurisdiction through which payments are made, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In If any withholding or deduction for or on account of any Taxes imposed by a Relevant Taxing Jurisdiction is required from any payment made under or with respect to the event that any Notes or the Guarantees, (a) the applicable withholding agent will make such withholding or deduction is so requiredand remit the full amount deducted or withheld to the relevant authority in accordance with and in the time required under applicable law, the Company, a Surviving Person or and (b) the applicable Subsidiary Co-Issuer or Guarantor or JV Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by may be necessary so that the Holder of each Note of such amounts as would have been net amount received by such each Holder had no or beneficial owner of the Notes after such withholding or deduction (including any withholding or deduction attributable to Additional Amounts) will equal the amount the Holder or beneficial owner would have received if such Taxes had not been requiredwithheld or deducted; provided, except however, that no Additional Amounts shall will be payable:
(i) for payable with respect to any estate, inheritance, gift, sales, capital gains, or on account of:
(A) personal property Tax or any taxsimilar Tax, duty, assessment or other governmental charge any Tax that would not have been imposed but forimposed, payable or due:
(1) but for the existence of any present or former connection between the Holder (or the beneficial owner of of, such Note Notes) 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, the jurisdiction through which payments are made, Relevant Taxing Jurisdiction) other than merely the mere acquisition, ownership, holding such Note or disposition of the Notes or enforcement of rights thereunder or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary Guarantee, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary 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 thereinrespect thereof;
(2) but for the presentation of such Note (in cases in which presentation is required) more than 30 days after failure by the later of the date on which the payment of the principal ofHolder or beneficial owner to satisfy any certification, premiumidentification or other reporting requirements whether imposed by statute, if anytreaty, and interest onregulation or administrative practice; provided, such Note became due and payable pursuant to the terms thereof or was made or duly provided forhowever, except to the extent that the Holder thereof would have been entitled Issuer and/or Co-Issuer has delivered a request to such Additional Amounts if it had presented such Note for payment on any date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed such requirements at least 30 days prior to the date by which such compliance is required and such Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance owner can legally comply with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; orrequirements;
(43) if the presentation of such Note Notes (in cases in which where presentation is required) for payment in had occurred within 30 days after the Relevant Jurisdiction date such payment was due and payable or was duly provided for, whichever is later, but only to the jurisdiction through which payments are made, unless extent such Note could Additional Amounts would not have been required had the note been presented for payment elsewhereon the last day of the applicable 30 day period;
(B4) any estatebut for the fact that the Holder does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) with the Issuer, inheritance, gift, sale, transfer, personal property the Co-Issuer or similar tax, assessment or other governmental chargea Guarantor;
(C5) any tax, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments but for the requirements of principal, premium (if any) and interest on the Notes or from payments under the Subsidiary Guarantees or JV Subsidiary Guarantees (if any);
(D) any tax, assessment, withholding or deduction required by sections Sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as of the Issue Date (or any amended (“FATCA”or successor version that is substantively comparable and not materially more onerous to comply with), any current regulations or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCAinterpretations thereof, or any agreement with intergovernmental agreements implementing the U.S. Internal Revenue Service under FATCAforegoing; or
(E6) but for any combination of taxes, duties, assessments or the items listed above. Each of the Co-Issuers and the Guarantors will indemnify and hold harmless each Holder and beneficial owner from and against (x) any Taxes (other governmental charges referred to in the preceding than Taxes excluded by clauses (A), 1) through (B), (C6) and (D); or
(iiabove) to levied or imposed on a Holder that is a fiduciary, partnership or person other than the sole beneficial owner as a result of any payment to the extent that such payment would be required to be included in the income payments made under the laws of a Relevant Jurisdiction or the jurisdiction through which payments are made, for tax purposes, of a beneficiary or settlor with respect to the fiduciaryNotes or any Guarantee (including any such Tax imposed under Part XIII of the Income Tax Act (Canada) and arising on an assignment (other than an assignment that is not effected in accordance with the provisions of this Indenture) of a note to a person resident of or deemed resident of Canada (other than a person with whom the Holder does not deal at arm’s length for purposes of the Income Tax Act (Canada)) that is withheld from or levied or imposed on a Holder or beneficial owner), and (y) any Taxes (other than Taxes excluded by clauses (1) through (6) above) so levied or a member of imposed with respect to any indemnification payments under the foregoing clause (x) or this clause (y) such that partnership or a beneficial owner who would not have been entitled to the net amount received by such Additional Amounts had that beneficiary, settlor, partner Holder or beneficial owner been after such indemnification payments will not be less than the net amount the Holder thereof.
or beneficial owner would have received if the Taxes described in clauses (bx) Whenever there is mentioned in and (y) above had not been imposed. In any context context, the payment of amounts based upon the principal ofamount of the Notes or of principal, and interest or of any premium other amount payable under or interest onwith respect to any of the Notes or Guarantees, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.. Upon request, the Issuer will provide the Trustee with documentation evidencing the payment of the Taxes giving rise to the Additional Amounts. The Co-Issuers will pay any present or future stamp, registration, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any interest and penalties related thereto) that arise in any Relevant Taxing Jurisdiction from the execution, issuance, delivery, or registration, or in any jurisdiction from the enforcement of, the Notes or Guarantees or any other document or instrument referred to therein, or the receipt of any payments with respect to the Notes or Guarantees (“Documentary Taxes”). The obligation to pay Additional Amounts and Documentary Taxes under the terms and conditions described above will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor to any Co-Issuer or Guarantor and to any jurisdiction in which any such successor is incorporated or organized or is (or is deemed to be) resident or doing business for tax purposes, or from or through which such successor makes any payment under or with respect to the Notes or the Guarantees. At least 30 days prior to each date on which any payment under, or with respect to, the Notes is due and payable or such later date as agreed by the Trustee (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 is due and payable, in which case it will be promptly thereafter), if the Co-Issuers will be obligated to pay Additional Amounts with respect to such payment, the Issuer will deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Trustee to pay such Additional Amounts to the Holders of such Notes on the payment date. ARTICLE ELEVEN REDEMPTION OF NOTES
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Sources: Indenture (Telesat Canada)
Additional Amounts. (a) All payments of principal of, and premium (if any) and interest on required to be made by the Company under or with respect to the Notes (the Company or under any successor thereof making such payment, the Subsidiary Guarantees and JV Subsidiary Guarantees “Payor”), will be made free and clear of and without withholding or deduction for, for or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature taxes imposed or levied by or on behalf of any authority or agency having power to tax within any jurisdiction in which the Companyany Payor is incorporated, a Surviving Person or an applicable Subsidiary Guarantor or JV Subsidiary Guarantor is organized or otherwise resident for tax purposes (purposes, or engaged in business for tax purposes, or any political subdivision jurisdiction from or taxing authority thereof through which payment is made by or thereinon behalf of such Payor (each a “Relevant Taxing Jurisdiction”), including, without limitation, unless such Payor is required to withhold or deduct such taxes by law or regulation. If 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 a Relevant Taxing Jurisdiction from any payment made under or with respect to the PRC (eachNotes or the Guarantee, as applicable, a “Relevant Jurisdiction”), or any jurisdiction through which payments are made, unless such withholding or deduction is Payor will be required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company, a Surviving Person or the applicable Subsidiary Guarantor or JV Subsidiary Guarantor, as the case may be, will to pay such additional amounts (“Additional Amounts”) as will result in receipt by may be necessary so that the Holder of each Note of such amounts as would have been net amount received by such any Holder had no (including Additional Amounts) after such withholding or deduction will not be less than the amount the Holder or beneficial owner would have received if such taxes had not been requiredwithheld or deducted; provided, except however, that no the foregoing obligation to pay Additional Amounts shall be payabledoes not apply to:
(i) for or on account of:
(Aa) any tax, duty, assessment or other governmental charge taxes that would not have been imposed (or would not be required to be) so imposed, withheld, deducted or levied but for:
(1) for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of such Note power over, the relevant Holder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust, partnership, company or corporation) and the Relevant Jurisdiction or the jurisdiction through which payments are made, other than merely holding such Note or the receipt of payments thereunder or under a Subsidiary Guarantee or JV Subsidiary GuaranteeTaxing Jurisdiction, including, without limitation, such Holder or beneficial owner being or having been a nationalcitizen, domiciliary or domiciliary, national resident of such Relevant Jurisdiction or treated as a resident thereof thereof, or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereintherein (other than any connection arising solely from the acquisition or holding of any Notes, the receipt of any payments in respect of such Notes or the Guarantee or the exercise or enforcement of rights under the Guarantee);
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such 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 date within such 30-day period;
(3) the failure of the Holder or beneficial owner to comply with a timely request of the Company, a Surviving Person, any Subsidiary Guarantor or any JV Subsidiary Guarantor addressed to the Holder to provide information concerning such Holder’s or its beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction or the jurisdiction through which payments are made, if and to the extent that due and timely compliance with such request is required under the tax laws of such jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the Relevant Jurisdiction or the jurisdiction through which payments are made, unless such Note could not have been presented for payment elsewhere;
(Bb) any estate, inheritance, gift, salesales, transfer, personal property or similar tax, assessment tax or other governmental chargeassessment;
(Cc) any tax, assessment or taxes which are payable other governmental charge that is payable otherwise than by withholding or deduction from payments of principal, premium (if any) and interest on made under or with respect to the Notes or from payments under the Subsidiary Guarantees Guarantee;
(d) any taxes that would not have been (or JV Subsidiary Guarantees would not be required to be) imposed, withheld, deducted or levied if such Holder or the beneficial owner of any Notes or interest therein (i) complied with all reasonable written requests by the Payor (made at a time that would enable the Holder or beneficial owner acting reasonably to comply with such request) to provide timely and accurate information or documentation concerning the nationality, residence or identity of such Holder or beneficial owner or (ii) made any declaration or similar claim or satisfy any certification, information or reporting requirement, which in the case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of withholding or deduction of, all or part of such taxes;
(e) any taxes imposed or withheld on or with respect to a payment which could have been made without deduction or withholding if anythe beneficiary of the payment had presented the Notes for payment (where presentation is required) within 30 days after the date on which such payment 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 that the Holder or beneficial owner would have been entitled to Additional Amounts had the Notes been presented on any day during the 30-day period);
(Df) any taxtaxes imposed on or with respect to any payment made under or with respect to such Notes or the Guarantee to any Holder who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment, assessmentto the extent that a beneficiary or settlor with respect to such fiduciary, withholding a member of such a partnership or deduction required by sections 1471 through the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the sole beneficial owner of such Notes;
(g) any taxes payable under Sections 1471-1474 of the U.S. Internal Revenue Code of 1986, as amended (the “FATCACode”), as of the issue date of the Notes (or any current amended or future Treasury Regulations or rulings promulgated thereundersuccessor version), any law, regulation regulations or other official guidance enacted in any jurisdiction implementing FATCAinterpretations thereof, any intergovernmental agreement entered into in connection therewith, or any law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States and any other jurisdiction with respect to implement FATCA, the foregoing or any agreement with agreements entered into pursuant to Section 1471(b)(1) of the U.S. Internal Revenue Service under FATCACode; or
(Eh) any taxes imposed or levied by reason of any combination of clauses (a) through (g) above. The Payor will pay any present or future stamp, issue, registration, excise, property, court or documentary taxes, dutiesor similar taxes, assessments charges or other governmental charges levies (referred to in the preceding clauses (A), (B), (Cthis paragraph as “stamp taxes”) and interest, penalties and other reasonable expenses related thereto that arise in or are levied by any Relevant Taxing Jurisdiction on the execution, issuance, delivery, enforcement or registration of the Notes, the Indenture, the Guarantee or any other document or instrument in relation thereto (D); or
(ii) to a Holder that is a fiduciary, partnership or person other than on a transfer or assignment of the sole beneficial owner Notes after the date hereof). The Payor will make or cause to be made any withholding or deduction required in respect of taxes, and remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction, in accordance with applicable law. Upon request, the Payor will use reasonable efforts to provide, within a reasonable time after the date the payment of any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction taxes so deducted or the jurisdiction through which payments are withheld is made, for tax purposes, the Trustee with official receipts or other documentation evidencing the payment of a beneficiary the taxes so deducted or settlor withheld. If any Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the fiduciaryNotes, or the Payor will deliver to the Paying Agent with a member copy to the Trustee on a date that is at least 30 days prior to the date of that partnership or a beneficial owner who would not have been entitled payment (unless the obligation to such pay Additional Amounts had arises after the 45th day prior to that beneficiarypayment date, settlor, partner in which case the Payor shall notify the Paying Agent and the Trustee promptly thereafter) a certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and such other information reasonably necessary to enable the Paying Agent to pay Additional Amounts to Holders or beneficial owner been owners on the Holder thereof.
(b) Whenever there is mentioned relevant payment date. The obligations described under this Section 20 shall survive any termination, defeasance or discharge of the Indenture or the Guarantee and will apply mutatis mutandis to any jurisdiction in which any context the payment of principal of, and any premium or interest on, any Note or under any Subsidiary Guarantee or JV Subsidiary Guarantee, such mention shall be deemed to include payment of Additional Amounts provided for in this Indenture successor Person to the extent thatPayor is incorporated, in such context, Additional Amounts are, were organized or would be payable in respect thereofotherwise resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
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