Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to: (1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee; (2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period); (3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes; (4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee; (5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation; (6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent; (7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note; (8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or (9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof). (b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary. (c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity. (d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. (e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 7 contracts
Sources: Indenture (Carnival PLC), Indenture (Carnival PLC), Indenture (Carnival PLC)
Additional Amounts. (a) All payments made by or of principal of, premium, if any, and interest on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any and all payments under the Note Guarantee shall 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 taxes, duties, assessments or deduction governmental charges of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes whatever (“Taxes”) nature imposed or levied by or on behalf of (1) within any jurisdiction (other than the United States) in which the Issuer Company or any applicable Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein therein) or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer Company or any Guarantor (including, without limitation, including the jurisdiction of any Paying Agent) (or any political subdivision or taxing authority thereof or therein therein) (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantoreach, as applicable, shall a “Relevant Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In such event, the Company or the applicable 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 (the “Additional Amounts”) as may be necessary will result in order that receipt by the net amounts received and retained in respect Holder of such payments amounts as would have been received by each beneficial owner of Notes after such holder had no such withholding or deduction shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; providedrequired, however, provided that no Additional Amounts shall will be payable with respect tofor or on account of:
(1) any Taxestax, to the extent such Taxes duty, assessment or other governmental charge that would not have been imposed but for for:
(A) the holder existence of any present or former connection between the Holder or beneficial owner of such Note or Note Guarantee, as the Notes (case may be, and the Relevant Jurisdiction including, without limitation, such holder or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) beneficial owner being or having been a citizen or resident of such Relevant Jurisdiction or national of, treated as a resident thereof or incorporated, being or having been physically present or engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction therein or having or having had any other present or former connection with the relevant Tax Jurisdictiona permanent establishment therein, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under merely holding such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note thereunder or a under the Note Guarantee;
(2B) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a such Note for payment (where presentation is required) more than 30 thirty (30) days after the relevant later of the date on which the payment is first made available for payment of the principal of, premium, if any, or interest on, such Note became due and payable pursuant to the holder (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 the presented such Note been presented for payment on the last day of any date within such 30 30-day period);
(3C) the failure of the holder or beneficial owner to comply with a timely request of the Company or any Guarantor addressed to the holder or beneficial owner, as the case may be, to provide information concerning such holder’s or beneficial owner’s nationality, residence, identity or connection with any Relevant Jurisdiction, if and to the extent that due and timely compliance with such request would have reduced or eliminated any withholding or deduction as to which Additional Amounts would have otherwise been payable to such holder; or
(D) the presentation of such Note (where presentation is required) for payment in the Relevant Jurisdiction, unless such Note could not have been presented for payment elsewhere;
(2) any estate, inheritance, gift, sale, transfer, excise or personal property or similar Taxestax, assessment or other governmental charge;
(3) any tax, duty, assessment or other governmental charge which is payable other than (i) by deduction or withholding from payments of principal of or interest on the Note or payments under the Note Guarantees, or (ii) by direct payment by the Company or applicable Guarantor in respect of claims made against the Company or the applicable Guarantor;
(4) any Taxes payable other than by deduction tax arising pursuant to Sections 1471 – 1474 of the U.S. Internal Revenue Code, any agreement entered pursuant thereto, any U.S. or withholding from payments undernon-U.S. law enacted in connection with an intergovernmental agreement related thereto, or with respect toany rules, regulations, or administrative guidance of any kind relating to any of the Notes or any Note Guarantee;foregoing; or
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure combination of the holder or beneficial owner of the Notestaxes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposedduties, to comply with any certification, identification, information assessments or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition governmental charges referred to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction preceding clauses (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction1), but in each case(2), only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;(3) and (4); or
(6b) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by of the Issuer principal of, or premium, if any, or interest on, such Note or any of payment under any Note Guarantee to such holder, if the Guarantors to the holder of the Notes if such holder is a fiduciary or fiduciary, partnership or any person other than the sole beneficial owner of such any payment to the extent that such Taxes payment would be required to be included in the income under the laws of a Relevant Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been imposed on entitled to such payments Additional Amounts had such holder that beneficiary, settlor, partner, or beneficial owner been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations holder thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer Company and the Guarantors will also pay and indemnify the holder of a Note for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxestaxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax other reasonable expenses related thereto) which are levied by any jurisdiction 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 (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable . The Company and the amount estimated Guarantors will use all reasonable efforts 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee obtain certified copies of tax receipts evidencing the payment of Additional Amountsany 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 Trustees 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 Trustee shall be entitled Company or the Guarantor, as applicable, will attach to rely absolutely on an Officer’s Certificate as conclusive proof 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 payments are necessarywithholding taxes paid per $1,000 principal amount of the Notes.
(c) The Issuer or the relevant Guarantor, if it Whenever there is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority mentioned in accordance with applicable law. The Issuer or the relevant Guarantor will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing any context the payment of principal of, and any Taxes so deducted premium or withheld. The Issuer interest, on any Note or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or under any Note Guarantee, 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.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 6 contracts
Sources: Indenture (STUDIO CITY INTERNATIONAL HOLDINGS LTD), Indenture (STUDIO CITY INTERNATIONAL HOLDINGS LTD), Indenture (STUDIO CITY INTERNATIONAL HOLDINGS LTD)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the this Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will shall also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the this Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will shall make all withholdings and deductions (within the time period) required by law and will shall remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer or the relevant Guarantor will shall use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will shall furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the this Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will This Section 4.06 shall survive any termination, defeasance or discharge of the 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 Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 6 contracts
Sources: Indenture (Carnival PLC), Indenture (Carnival PLC), Indenture (Carnival PLC)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) Issuers under or with respect to the Notes or any Note Guarantor with respect to any Guarantee shall of the Notes 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 of for, or on account of, such Taxes is then required by lawlaw or by the interpretation or administration thereof. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the any Issuer or any Guarantor is then incorporated or was incorporatedorganized, engaged in business, organized business for tax purposes or otherwise resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the any Issuer or any Guarantor (including, without limitation, including the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2)each, a “Tax Jurisdiction”) in respect of will at any time be required to be made from any payments made by or on behalf of the Issuers under or with respect to the Notes or any Note GuaranteeGuarantor under or with respect to any Guarantee of the Notes, including, without limitation, including payments of principal, redemption price, purchase price, interest or premium, the Issuer Issuers or the relevant Guarantor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes Holder after such deduction or withholding (including any such withholding or deduction shall from such Additional Amounts) will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 5 contracts
Sources: Nineteenth Supplemental Indenture (MPT Operating Partnership, L.P.), Seventeenth Supplemental Indenture (MPT Operating Partnership, L.P.), Eighteenth Supplemental Indenture (MPT Operating Partnership, L.P.)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (includingThe Company shall, in each case, any successor entity) under or with respect subject to the Notes or any Note Guarantee shall be made free exceptions and clear of and without withholding or deduction forlimitations set forth below, or pay as additional interest on account of, any present or future Taxes unless the withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay Securities such additional amounts (the “Additional Amounts”) as may be are necessary in order that the net amounts received payment by the Company or the Paying Agent of the principal of and retained in respect interest on each of such payments by each beneficial owner of Notes the Securities after such withholding or deduction shall equal solely with respect to any present or future tax, assessment or other governmental charge (collectively, “Taxes”) imposed by or on behalf of any jurisdiction other than the respective amounts that would have been received and retained United States in respect which the Company or any successor in accordance with the provisions of such payments Article X hereof is incorporated, organized or otherwise tax resident or any political subdivision or any authority thereof or therein having power to tax (each, a “Relevant Taxing Jurisdiction”), will not be less than the amount provided in the absence of such withholding or deductionapplicable Securities to be then due and payable (“Additional Amounts”); provided, however, that no the foregoing obligation to pay Additional Amounts shall be payable with respect not apply to:
(a) any Taxes which would not have been so imposed, withheld or deducted but for:
(1) the existence of any Taxes, to the extent present or former connection between such Taxes would not have been imposed but for the holder Securityholder or the beneficial owner of the Notes (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder or other equity owner of, or possessor of a person having a power over, the relevant holdersuch Securityholder or beneficial owner, if the relevant holder such Securityholder or beneficial owner is an estate, a trust, nomineea limited liability company, a partnership, limited liability company a corporation or corporationother entity) and the Relevant Taxing Jurisdiction, including, without limitation, such Securityholder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or other equity owner or person having such a power) being or having been a citizen or resident or national of, treated as a resident of the Relevant Taxing Jurisdiction or incorporated, being or having been engaged in a trade or business in, in the Relevant Taxing Jurisdiction or being or having been physically present in or having a permanent establishment in, the relevant Tax Relevant Taxing Jurisdiction or having or having had any other present or former connection with a permanent establishment in the relevant Tax Relevant Taxing Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;; or
(2) the failure of such Securityholder or beneficial owner to comply with any Taxesapplicable certification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Securityholder or beneficial owner or otherwise to the extent establish entitlement to a partial or complete exemption from such Taxes were imposed as a result of (including, without limitation, any documentation requirement under an applicable income tax treaty);
(b) any Taxes which would not have been so imposed, withheld or deducted but for the presentation by the Securityholder or beneficial owner of a Note such Security for payment (where presentation is required) on a date more than 30 10 days after the relevant date on which such payment became due and payable or the date on which payment of the Security is first made available duly provided for payment and notice is given to the holder (Securityholders, whichever occurs later, except to the extent that the holder Securityholder or beneficial owner would have been entitled to such Additional Amounts had the Note been presented on the last day of presenting such 30 Security on any date during such 10-day period);
(3c) any estate, inheritance, gift, salesales, transfer, personal property property, excise, wealth or similar Taxes;
(4d) any Taxes which are payable other otherwise than by deduction or withholding from payments under, any payment of principal of or with respect to, the Notes or any Note Guaranteeinterest on such Security;
(5e) any Taxes which are payable by a Securityholder that is not the beneficial owner of the Security, or a portion of the Security, or that is a fiduciary, partnership, limited liability company or other similar entity, but only to the extent that a beneficial owner, a beneficiary or settlor with respect to such fiduciary or member of such partnership, limited liability company or similar entity would not have been entitled to the payment of an Additional Amount had such beneficial owner, settlor, beneficiary or member received directly its beneficial or distributive share of the payment;
(f) any Taxes required to be withheld by any Paying Agent from any payment of principal or interest on any Security, if such payment can be made without such withholding by any other Paying Agent;
(g) any Taxes that would not have been imposed, withheld or deducted but for a change in any law, treaty, regulation, or administrative or judicial interpretation that becomes effective after the applicable payment becomes due or is duly provided for, whichever occurs later, to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statutechange in law, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition interpretation would apply retroactively to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentationpayment;
(6h) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted imposed, withheld or required for payment) by or on behalf of a holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section deducted under Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply withamended, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described aboveprovisions that are substantively comparable) and any current or future regulations or official interpretations thereof (“FATCA”), 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 or an intergovernmental agreement in respect of FATCA; or
(9i) any combination of clauses items (1a), (b), (c), (d), (e), (f), (g) through and (8) aboveh). In addition to the foregoingFor purposes of this Section, the Issuer and the Guarantors will also pay and indemnify the holder for any present acquisition, ownership, enforcement or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration holding of any of the Notes, the Indenture, any Note Guarantee or any other document referred to therein, or the receipt of any payments payment with respect thereto, or enforcement of, any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are Security will not excluded under clauses constitute a connection (1) through (3) between the Securityholder or beneficial owner and the Relevant Taxing Jurisdiction or (52) through (9) above between a fiduciary, settlor, beneficiary, member or shareholder or other equity owner of, or a person having a power over, such holder or beneficial owner if such holder or beneficial owner is an estate, a trust, a limited liability company, a partnership, a corporation or other entity and the Relevant Taxing Jurisdiction. Any reference in this Indenture or in the Securities to principal or interest shall be deemed to refer also to Additional Amounts which may be payable under the provisions of this Section 4.02. Except as specifically provided in the Securities, the Company shall not be required to make any payment with respect to any tax, duty, assessment or other governmental charge imposed by any government or any combination thereof).
(b) political subdivision or taxing authority of or in any government or political subdivision. If the Issuer or any Guarantor, as the case may be, Company 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 GuaranteeSecurities, the Issuer or the relevant Guarantor, as the case may be, will Company shall deliver to the Trustee on a date that is at least 30 days prior to the date of that such payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that such payment date, in which case the Issuer or the relevant Guarantor Company shall notify the Trustee promptly thereafter) an Officer’s Officers’ Certificate stating to the fact effect 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 5 contracts
Sources: Senior Indenture (Brighthouse Financial, Inc.), Junior Subordinated Indenture (Brighthouse Financial, Inc.), Junior Subordinated Indenture (Brighthouse Financial, Inc.)
Additional Amounts. (a) All payments made by or on behalf in respect of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall this Guaranty will be made free and clear of of, and without withholding or deduction for, or on account of, any present or future Taxes unless the withholding taxes, duties, assessments or deduction governmental charges of such Taxes whatever nature (collectively, "TAXES") imposed, levied, collected, withheld or assessed by or within any jurisdiction in which Loral Space is then required by law. If incorporated (or the Issuer, jurisdiction of incorporation of any Guarantor successor of Loral Space) or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer Loral Space (or any Guarantor such successor) is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision taxing authority thereof or therein (each of (1) and (2hereinafter, a "RELEVANT JURISDICTION"), a “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 any such withholding or deduction in respect of any payments under or with respect to the Notes such payment is so required, Loral Space, or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicablesuccessor, shall pay such additional amounts (the “Additional Amounts”"ADDITIONAL AMOUNTS") as may be necessary will result in order that the net amounts received and retained in respect receipt by each Holder of a Note of such payments gross amount as would have been received by each such Holder or the beneficial owner of Notes after with respect to such Note, as applicable, had no such withholding or deduction shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such (including any withholding or deduction; provideddeduction applicable to Additional Amounts payable) been required, however, except that no Additional Amounts shall will be payable with respect tofor or on account of:
(1) any Taxes, to the extent such Taxes that would not have been imposed but for for
(A) the holder existence of any present or the former connection between such Holder or such beneficial owner of the Notes (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, trust, nominee, partnership, limited liability company partnership or corporation) and the Relevant Jurisdiction, including such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen national, domiciliary or resident of or national of, treated as a resident thereof or incorporated, being or having been present or engaged in a trade or business in, being therein or having been physically present in or having had a permanent establishment in, therein; or
(B) Section 881(c)(3)(A) of the relevant Tax Jurisdiction Code (or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guaranteesuccessor provision);
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property transfer or similar Taxestax, assessment or other governmental charge;
(43) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been Tax that is imposed or withheld but for by reason of the failure of the holder Holder or beneficial owner of the Notesa Security to timely comply with a request of Loral Space, following the Issuer’s reasonable written request addressed to the holder at least 60 days before Holder (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 such withholding reasonably required or deduction would be imposedrequested declaration, to comply with filing or claim or satisfy any certification, identification, reasonably required or requested information or other reporting requirementsrequirement, whether which, in the case of (A) or (B), is required or imposed by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, the taxing jurisdiction as a precondition to exemption fromfrom all or part of such Tax; provided, however, that (i) providing information required by Internal Revenue Service Forms 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 reduction in the rate requested; or
(4) any combination of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction1), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(62) any Taxes imposed in connection with a Note presented for payment and (where presentation is permitted or required for payment) by or on behalf of a holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or 3); nor shall Additional Amounts be paid with respect to any payment by of the Issuer principal of or any of the Guarantors premium or interest on any such Note, to the holder of the Notes if such holder is a any Holder (including any fiduciary or partnership or any person other than the sole beneficial owner of such payment partnership) to the extent that such Taxes the beneficial owner would not have been imposed on entitled to such payments Additional Amounts had such holder it been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 Holder of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof)Note.
(b) If the Issuer Where required by applicable law, Loral Space or any GuarantorPaying Agent, as the case may be, becomes aware that it will be obligated to pay Additional Amounts with shall also (1) make such withholding or deduction in respect to of any payment under or with respect to the Notes or any Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment Taxes and (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter2) 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount withheld or deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will Loral Space shall furnish to the Trustee (or to a each Holder upon request)of Notes, within 60 30 days after the date the payment of any Taxes so deducted or withheld is madedue pursuant to applicable law, certified copies of Tax tax receipts evidencing payment by the 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 (reasonably satisfactory to the Trustee) Trustee evidencing such payment by such entityLoral Space.
(dc) Whenever in the Indenture or this Note there is mentioned, mentioned in any context, context the payment of amounts based upon principal of or any premium or interest on, or in respect of, a Note, or the principal amount of net proceeds received from Loral Space on the Notes sale or of principal, interest or exchange of any other amount payable under, or with respect to, any of the Notes or any Note GuaranteeNote, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this 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 preceding foregoing obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or thereinthis 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 made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the this Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will shall also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the this Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will shall make all withholdings and deductions (within the time period) required by law and will shall remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer or the relevant Guarantor will shall use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will shall furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the this Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will This Section 4.12 shall survive any termination, defeasance or discharge of the 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 Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 5 contracts
Sources: Indenture (Carnival PLC), Indenture (Carnival PLC), Indenture (Carnival PLC)
Additional Amounts. (a) This Section 3 shall apply only in the event that the Company becomes, or a successor to the Company is, a corporation organized or existing under the laws of the United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman Islands. All payments made by or the Company on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any this Note Guarantee shall be made free and clear of and without withholding or deduction for, for or on account of, any and all present or future Taxes taxes, duties, assessments, or governmental charges of whatever nature unless the deduction or withholding or deduction of such Taxes taxes, duties, assessments or governmental charges is then required by law. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, for or on account ofof any present or future taxes, any Taxes imposed assessments or levied by or on behalf other governmental charges of (1) any jurisdiction (other than the United States) in which Kingdom, the Issuer Netherlands, the Netherlands Antilles, Bermuda or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes the Cayman Islands (or any political subdivision or taxing authority thereof or therein or (2therein) shall at any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) time be required in respect of any payments amounts to be paid by the Company under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premiumthis Note, the Issuer or the relevant Guarantor, as applicable, Company shall pay or cause to be paid such additional amounts (the “Additional Amounts”"ADDITIONAL AMOUNTS") as may be necessary in order that the net amounts received and retained in respect by a Holder of such payments by each beneficial owner of Notes this Note after such deduction or withholding or deduction shall equal be not less than the respective amounts that would have been received and retained specified in respect this Note to which the Holder of such payments in the absence of such withholding or deductionthis Note is entitled; provided, however, that no the Company shall not be required to make any payment of Additional Amounts shall be payable with respect tofor or on account of:
(1a) any Taxestax, assessment or other governmental charge to the extent such Taxes tax, assessment or other governmental charge would not have been imposed but for (i) the holder existence of any present or the beneficial owner of the Notes former connection between such Holder (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, nominee, trust, nominee, partnership, limited liability company partnership or corporation), other than the holding of this Note or the receipt of amounts payable in respect of this Note, and the United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman Islands (or any political subdivision or taxing authority thereof or therein) including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or national of, or incorporated, engaged in a trade or business in, being or having been physically present or engaged in trade or having a permanent establishment in, the relevant Tax Jurisdiction business therein or having or having had any other present a permanent establishment therein or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a this Note for payment (where presentation is required) for payment on a date more than 30 days after the relevant date on which such payment became due and payable or the date on which payment thereof is first made available for payment to the holder (duly provided for, whichever occurs later, except to the extent that the holder Holder would have been entitled to Additional Amounts had the this Note been presented on the last day of such period of 30 day period)days;
(3b) any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder of this Note or, if different, the beneficial owner of the interest payable on this Note, with a timely request of the Company addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the taxing jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) any estate, inheritance, gift, salesales, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(4d) any Taxes payable tax, assessment or other governmental charge which is collectible otherwise than by deduction withholding from payments of principal amount, redemption amount, Change of Control Payment or interest with respect to a Note or withholding from payments under, the proceeds of a sale or with respect to, the Notes or any Note Guaranteeexchange of a Note;
(5e) any Taxes tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of principal amount, redemption amount, Change of Control Payment or interest with respect to a Note, if such payment can be made, and is in fact made, without such withholding by any other Paying Agent located inside the United States;
(f) any tax, assessment or other governmental charge imposed on a Holder that is not the beneficial owner of a Note to the extent such Taxes that the beneficial owner would not have been imposed or withheld but for entitled to the failure payment of any such Additional Amounts had the holder or beneficial owner of directly held the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentationNote;
(6g) any Taxes imposed in connection with a Note presented for payment combination of items (where presentation is permitted or required for paymenta), (b), (c), (d), (e) by or on behalf of a holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
and (7f) any Taxes imposed on or above; nor shall Additional Amounts be paid with respect to any payment by of the Issuer principal of, or any of the Guarantors interest on, this Note to the holder of the Notes if such holder any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes a beneficiary or settlor would not have been imposed on such payments entitled to any Additional Amounts had such holder beneficiary or settlor been the sole beneficial owner Holder of such this Note;
(8) any Taxes that are imposed pursuant . All references to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) principal amount or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of shall include any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts payable to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofCompany pursuant to this Section 3.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 5 contracts
Sources: Indenture (NTL Delaware Inc), Indenture (NTL Communications Corp), Indenture (NTL Communications Corp)
Additional Amounts. (a) All payments made by or on behalf of principal and interest in respect of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall be made free and clear of of, and without deduction or withholding or deduction for, for or on account of, of any present or future Taxes unless the withholding taxes, duties, assessments or deduction other governmental charges of such Taxes is then required whatsoever nature imposed, levied, collected, withheld or assessed by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes States or any political subdivision or taxing authority of or in the United States, unless such withholding or deduction is required by law.
(b) The Company shall pay to a Holder who is not a United States person additional amounts as may be necessary so that every net payment of the principal of and premium, if any, and interest on the Notes to such Holder, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any taxing authority thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicabletherein, shall pay not be less than the amount provided in the Note to be then due and payable (such additional amounts (amounts, the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction); provided, however, that no the Company shall not be required to make any payment of Additional Amounts shall be payable with respect tofor or on account of:
(1i) any Taxestax, to the extent such Taxes assessment or other governmental charge that would not have been imposed but for (A) the holder existence of any present or former connection (other than a connection arising solely from the ownership of those Notes or the receipt of payments in respect of those Notes) between that Holder (or the beneficial owner for whose benefit such Holder holds such Notes), or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, that Holder or beneficial owner, if that Holder or beneficial owner is an estate, trust, partnership or corporation, and the United States, including that Holder or beneficial owner, or that fiduciary, settlor, beneficiary, member, shareholder or possessor being or having been a citizen or resident or treated as a resident of the Notes United States or being or having been engaged in trade or business or present in the United States or having had a permanent establishment in the United States or (B) the presentation of a debt security for payment on a date more than 30 days after the later of the date on which that payment becomes due and payable and the date on which payment is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property, wealth, capital gains, interest equalization or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed on foreign personal holding company income or by reason of a Holder (or the beneficial owner for whose benefit such Holder holds such Notes), or a fiduciary, settlor, beneficiary, partner beneficiary of, member or shareholder of, or possessor of a power over, the relevant holderHolder or beneficial owner, if the relevant holder that Holder or beneficial owner is an estate, trust, nominee, partnership, limited liability company partnership or corporation) , being or having been a citizen passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or resident a personal holding company with respect to the United States or national a corporation that accumulates earnings to avoid U.S. federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or premium, if any, or interest on the Notes of that Holder;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or premium, if any, or interest on the Notes of that Holder if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure of a Holder (or the beneficial owner for whose benefit such Holder holds the Notes), or a fiduciary, settlor, beneficiary of, member or shareholder of, or incorporatedpossessor of power over, engaged in the holder or beneficial owner, if that Holder or beneficial owner is an estate, trust, partnership or corporation, or any intermediary through which a trade beneficial owner holds Notes to comply with certification, information, documentation or business inother reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the beneficial owner or any Holder (including, but not limited to, the requirement to provide Internal Revenue Service Forms W-8BEN, Forms W-8BEN-E, Forms W-8ECI, or any subsequent versions thereof or successor thereto, and including, without limitation, any documentation requirement under an applicable income tax treaty);
(vii) any tax, assessment or other governmental charge imposed as a result of a Holder (or the beneficial owner for whose benefit such Holder holds such Notes), or a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, the Holder or beneficial owner, if that Holder or beneficial owner is an estate, trust, partnership or corporation, being or having been physically present (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the Internal Revenue Code, and the regulations that may be promulgated thereunder) of the Company or having (B) a permanent establishment in, controlled foreign corporation that is related to the relevant Tax Jurisdiction Company within the meaning of Section 864(d)(4) of the Internal Revenue Code or having or having had any other present or former connection with (C) a bank receiving interest described in Section 881(c)(3)(A) of the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note GuaranteeInternal Revenue Code;
(2viii) any Taxestax, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder (except to the extent assessment or other governmental charge that the holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notesa change in law, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposedregulation, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdictionor judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentationwhichever occurs later;
(6ix) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section taxes payable under Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described aboveof such Sections), any current or future regulations or other guidance thereunder, or any agreement (including any intergovernmental agreement) entered into in connection therewith; or
(9x) any combination of clauses items (1i), (ii), (iii), (iv), (v), (vi), (vii), (viii) through and (8) ix) above. In addition ; nor shall any Additional Amounts be paid to any Holder that is not the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any sole beneficial owner of the Notes, or a portion of the Indenture, any Note Guarantee or any other document referred to thereinNotes, or the receipt of any payments with respect theretothat is a fiduciary, partnership or enforcement of, any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable limited liability company to the receipt of any payments, to any such Taxes imposed in extent that a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 beneficial owner with respect to the Notes Holder, a beneficiary or any Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or settlor with respect to the Notes (fiduciary or any Note Guarantee) by a member of that partnership, limited liability company or on behalf a beneficial owner thereof would not have been entitled to the payment of such Person andthose Additional Amounts had that beneficiary, in each casesettlor, any political subdivision thereof member or thereinbeneficial owner received directly its beneficial or distributive share of the payment.
Appears in 5 contracts
Sources: Supplemental Indenture (Thermo Fisher Scientific Inc.), Eighteenth Supplemental Indenture (Thermo Fisher Scientific Inc.), Supplemental Indenture (Thermo Fisher Scientific Inc.)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) Guarantor under or with respect to the Notes or any Note Guarantee shall will be made free and clear of and without withholding or deduction for, for or on account of, any present or future Taxes unless the withholding tax, duty, levy, impost, assessment or deduction of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes governmental charge imposed or levied by or on behalf of any United States taxing authority (1) any jurisdiction (other than the hereinafter “United States) in which the Issuer or States Taxes”), unless any Guarantor is required to withhold or was incorporated, engaged in business, organized deduct United States Taxes by law or resident by the interpretation or administration thereof. If any Guarantor is so required to withhold or deduct any amount of interest for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction on account of United States Taxes from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall such Guarantor will pay such additional amounts of interest (the “Additional Amounts”) as may be necessary in order so that the net amounts amount received and retained in respect of such payments by each beneficial owner of Notes holder (including Additional Amounts) after such withholding or deduction shall equal will not be less than the respective amounts that amount the holder would have received if such United States Taxes had not been received and retained in respect of such payments in the absence of such withholding withheld or deductiondeducted; provided, however, provided that no Additional Amounts shall will be payable with respect to:to a payment made to a holder (an “Excluded Holder”):
(1i) which is subject to such United States Taxes by reason of any Taxes, to connection between such holder and the extent such Taxes would not have been imposed but for the holder United States or the beneficial owner of the Notes (any states political subdivision thereof or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, authority thereof other than any connection arising solely from the acquisition, ownership or disposition mere holding of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, Notes or the receipt of payments in respect of such Note or a Note Guaranteethereunder;
(2ii) which failed to duly and timely comply with a timely request of the Issuer to provide information, documents, certification or other evidence concerning such holder’s nationality, residence, entitlement to treaty benefits, identity or connection with the United States or any Taxespolitical subdivision or authority thereof, if and to the extent that due and timely compliance with such request would have resulted in the reduction or elimination of any United States Taxes were imposed as to which Additional Amounts would have otherwise been payable to such holder of Notes but for this clause (ii);
(iii) which is a fiduciary, a partnership or not the beneficial owner of any payment on a Note, if and to the extent that, as a result of an applicable tax treaty, no Additional Amounts would have been payable had the presentation beneficiary, partner or beneficial owner owned the Note directly (but only if there is no material cost or expense associated with transferring such Note to such beneficiary, partner or beneficial owner and no restriction on such transfer that is outside the control of a Note for payment such beneficiary, partner or beneficial owner);
(where presentation is requirediv) 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 United States Taxes required to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property be withheld or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that deducted are imposed pursuant to current Section sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (the “Code”) or and any amended or successor version that is substantively comparable substantially comparable), and not materially more onerous to comply with, any regulations promulgated thereunder, any or other official interpretations thereof, guidance thereunder or agreements (including any intergovernmental agreement between a non-U.S. jurisdiction and the United States (agreements or any related law laws, rules or administrative practices or proceduresimplementing such intergovernmental agreements) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above)in connection therewith; or
(9v) any combination of the foregoing clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof)this proviso.
(b) If the The Issuer or any such Guarantor, as the case may be, becomes 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 Issuer or such Guarantor, as the case may be, will furnish to the holders of the Notes, within 30 days after the date the payment of any United States Taxes is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by such Guarantor, as the case may be. Such Guarantor will indemnify and hold harmless each holder (other than all Excluded Holders) for the amount of (A) any United States Taxes not withheld or deducted by such Guarantor and levied or imposed and paid by such holder as a result of payments made under or with respect to the Guarantees, (B) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, and (C) any United States Taxes imposed with respect to any reimbursement under clauses (i) or (ii) of this Section 3.12(b).
(c) At least 30 days prior to each date on which any payment under or with respect to the Notes is due and payable, if any Guarantor is 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 Guaranteesuch payment, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Officers’ Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and the amount estimated to be so payable. The Officer’s Certificate must also will set forth any such other information reasonably necessary to enable the Paying Agents Trustee to pay such Additional Amounts to Holders holders on the relevant payment date. The Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the this Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal(and premium, if any), interest or of any other amount payable under, under or with respect to, to any of the Notes or any Note Guaranteenote, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(ed) The preceding obligations described under this Section 3.12 will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder or beneficial owner of its Notes, this Indenture and will apply, apply mutatis mutandis, mutandis to any successor Person and to any jurisdiction in which any such successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or is otherwise resident or doing business for tax purposes, purposes or any jurisdiction from or through which payment is made under by such successor or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or thereinits respective agents.
Appears in 5 contracts
Sources: Trust Indenture, Trust Indenture (Trulieve Cannabis Corp.), Trust Indenture
Additional Amounts. (a) All payments made by or on behalf of the Issuer Company or any of the Guarantors (including, in each case, any successor entity) Guarantor under or with respect to the Notes or any the Note Guarantee shall 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 tax, duty, levy, impost, assessment or other governmental charge (including without limitation, penalties, interest and any other liability with respect thereto) (“Taxes”), unless the withholding Company or deduction of such any Guarantor (or any Paying Agent) is required to withhold or deduct Taxes is then required by lawlaw or by the interpretation or administration thereof by the relevant taxing authority. If the Issuer, Company or any Guarantor (or any other applicable withholding agent Paying Agent) is so required by law to withhold or deduct any amount for, for or on account of, any of Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer Company or any Guarantor (including any successor entities) is or was incorporated, engaged in business, then organized or resident for tax Tax purposes or any political subdivision thereof or therein or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”) from any payment made under or with respect to the Notes or the Note Guarantees, the Company or any such Guarantor will pay to each Holder of the Notes that are outstanding on the date of the required payment, such additional amounts (in the form of (x) in the case of PIK Interest, additional PIK Interest and (y) in other cases, cash) (“Additional Amounts”) as may be necessary so that the net amount received by such Holder (including the Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, provided that no Additional Amounts will be payable with respect to any Note:
(a) surrendered by the Holder or the beneficial owner thereof for payment of principal more than 30 days after the later of (1) the date on which such payment first became due and (2) if the full amount payable has not been received by or on behalf of the relevant Holder or the beneficial owner on or prior to such due date, the date on which, the full amount having been so received, notice to that effect shall have been given to the Holders or the beneficial owners by the Trustee, except to the extent that the Holder would have been entitled to such Additional Amounts on surrendering such Note for payment on any jurisdiction day during the applicable 30-day period;
(b) if any Tax, assessment or other governmental charge is imposed or withheld by reason of the failure to comply by the Holder or, if different, the beneficial owner of the Note with a request addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or through which part of such tax, assessment or governmental charge;
(c) held by or on behalf of a Holder or beneficial owner who is liable for Taxes in respect of such Note by reason of having some connection with the Relevant Taxing Jurisdiction other than the mere purchase, holding or disposition of any payment is Note, or the receipt of payments made by or on behalf of the Issuer Company or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes thereof or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest such Holder or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident thereof or national of, being or incorporated, having been present or engaged in a trade or business in, being therein or having been physically present in or having had a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guaranteetherein;
(2d) any Taxes, to the extent such Taxes were imposed as a result on account of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or other similar TaxesTax, assessment or other governmental charge;
(4e) except in the case of the winding up of the Company or any Guarantor, if such Note is surrendered for payment in the Republic of France;
(f) on account of any Taxes that are payable other otherwise than by deduction or withholding from payments under, or a payment with respect to, to the Notes or any Note GuaranteeGuarantees;
(5g) with respect to any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) made by or on behalf of a holder the Company or beneficial owner any Guarantor in respect of the Notes to the extent such Taxes could have been avoided by presenting the relevant any Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect Note Guarantee to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes a beneficiary or settlor or beneficial owner would not have been imposed on such payments entitled to any Additional Amounts had such holder beneficiary or settlor or beneficial owner been the sole beneficial owner of such NoteHolder;
(8) h) on account of any Taxes Tax that are is imposed pursuant to current Section sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended amended, (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations promulgated or other official guidance thereunder, any official interpretations thereofintergovernmental agreement entered into in connection therewith, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States (or with respect to any related law or administrative practices or procedures) implementing of the foregoing foregoing, or any agreements entered into pursuant to current Section section 1471(b)(1) of the Code (any such Tax, “FATCA Withholding”);
(i) on account of any U.S. federal withholding Taxes imposed as a result of (1) Holder’s or beneficial owner’s past or present actual or constructive ownership of 10% or more of the total combined voting power of all classes of stock of the Company entitled to vote, (2) such Holder’s or beneficial owner’s being a bank receiving such interest pursuant to a loan agreement entered into in the ordinary course of its trade or business as described in section 881(c)(3)(A) of the Code, (3) such Holder’s or beneficial owner’s being a “controlled foreign corporation” within the meaning of section 957 of the Code that is related to the Company within the meaning of section 864(d)(4) of the Code, or (4) the Holder’s or beneficial owner’s failure to fulfil the statement requirements of Section 871(h) or 881(c) of the Code;
(j) for or on account of any amended Tax, duty, assessment or successor version described above)governmental charge imposed by reason of the Holder’s or beneficial owner’s past or present status (or the past or present status of a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, a trust, a partnership or a corporation) as a personal holding company, passive foreign investment company, or controlled foreign corporation for United States federal income tax purposes, or as a corporation that accumulates earnings to avoid U.S. federal income tax;
(k) when such withholding or deduction for French taxes is required to be made by reason of that payment being (x) paid to a bank account opened in a financial institution established in, or (y) paid or accrued to a person established or domiciled in, a non-cooperative State or territory (Etat ou territoire non-coopératif) as defined in Article 238-0 A of the French Code général des impôts;
(l) when such withholding or deduction for French taxes is required to be made by reason of the Holder or the beneficial owner of the Note concurrently being a shareholder of the Company or of any Guarantor; or
(9m) on account of any combination of clauses (1) through (8) the above. In addition The Company or any Guarantor will also make such withholding or deduction and remit the full amount deducted or withheld to the foregoingrelevant authority in accordance with applicable law. The Company will furnish, within 60 days after the Issuer and date the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration payment of any Taxes is due pursuant to applicable law, to the Trustee, copies of tax receipts (to the Notes, extent received from the Indenture, any Note 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 Note Guarantee (limited, solely relevant tax authorities in the case of Taxes attributable to usual course or as generally provided) evidencing that such payment has been made by the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the Issuer Company or any Guarantor, as . The Trustee will make such evidence available to the case may be, becomes aware that it will be obligated Holders upon request. At least 30 days prior to pay Additional Amounts with respect to each date on which any payment under or with respect to the Notes or the Note Guarantees is due and payable, if the Company or any Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will deliver Guarantor becomes obligated to the Trustee on a date that is at least 30 days prior pay Additional Amounts with respect to the date of that such payment (unless the such obligation to pay Additional Amounts arises after the 30th day prior to that the date on which payment dateunder or with respect to the Notes or the Note Guarantees is due and payable, in which case the Issuer or it will be paid promptly thereafter and in any case before the relevant Guarantor shall notify payment date), the Trustee promptly thereafter) Company will deliver to each Paying Agent an Officer’s Officers’ Certificate stating the fact that such Additional Amounts will be payable payable, and the amount estimated to be so payable. The Officer’s Certificate must also payable and will set forth any such other information reasonably as necessary to enable the such Paying Agents Agent to pay such Additional Amounts to the Holders of the Notes on the relevant payment date. The Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the this Indenture or this Note there is mentioned, in any context, (a) the payment of amounts based upon the principal amount (and premium, if any), (b) purchase prices in connection with a purchase of the Notes or of principalNotes, (c) interest or of (d) any other amount payable under, on or with respect to, to any of the Notes or any the Note GuaranteeGuarantees, such mention shall be is deemed to include mention of the payment of Additional Amounts provided for in this section to the extent extent, that, in such context, Additional Amounts are, were or would be payable in respect thereof.
. The Company or a Guarantor, as the case may be, will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in the United States, the Republic of France or in any jurisdiction in which a Paying Agent is located from the initial issue or registration of the Notes or on the enforcement of any payments with respect to the Notes, any Note Guarantee, the Indenture or any other document related thereto (elimited, in case of Taxes attributable to the receipt of payments thereto, to any such Taxes imposed or withheld in a Relevant Taxing Jurisdiction that are not excluded under clauses (k) and (l) or any combination of items (k) and (l) above). The preceding obligations of the Company or any Guarantor described in this Section 4.21 will survive any termination, defeasance or satisfaction and discharge of the Indenture, this Indenture or any transfer by a holder or beneficial owner of its Notesnotes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (Company or any Guarantor) Guarantor is incorporated, engaged in business, organized business for tax purposes or resident for tax purposes, purposes or any jurisdiction from or through which such Person makes any payment is made under or with respect to on the Notes (and any department or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 4 contracts
Sources: Indenture (CGG), Indenture (CGG Marine B.V.), Indenture (CGG Marine B.V.)
Additional Amounts. (a) All payments made by or on behalf the Republic in respect of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee Debt 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 unless the withholding taxes, duties, assessments or deduction other governmental charges of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes whatever nature imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporatedRepublic, engaged in business, organized or resident for tax purposes or any political subdivision thereof or taxing authority therein or thereof having the power to tax (2) any jurisdiction from collectively, “Relevant Tax”), unless the withholding or through which any payment deduction of such Relevant Tax is made required by or on behalf of the Issuer or any Guarantor (including, without limitationlaw. In that event, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, Republic shall pay such additional amounts (the “Additional Amounts”) ), as may be necessary in order to ensure that the net amounts received and retained in respect of such payments by each beneficial owner of Notes the Holders after such withholding or deduction shall equal the respective amounts of principal and interest that would have been received and retained receivable in respect of such payments the Debt Securities in the absence of such withholding or deduction; provided, however, that no such Additional Amounts shall be payable with in respect toof any Relevant Tax:
(1i) any Taxes, to the extent such Taxes would not have been imposed but for the holder by reason of a Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or Debt Security having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other some present or former connection with the relevant Tax Jurisdiction, Republic other than merely being a Holder or beneficial owner of the Debt Security or receiving payments of any connection arising solely from nature on the acquisition, ownership Debt Security or disposition of Notes, the exercise or enforcement of enforcing its rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guaranteethe Debt Security;
(2ii) imposed by reason of the failure of a Holder or beneficial owner of a Debt Security, or any Taxesother person through which the Holder or beneficial owner holds a Debt Security, to comply with any certification, identification or other reporting requirement concerning the extent nationality, residence, identity or connection with the Republic of such Taxes were Holder or beneficial owner or other person, if compliance with the requirement is a precondition to exemption from all or any portion of such withholding or deduction; provided that (x) the Republic or the Republic’s agent has provided the Holders with at least 60 days’ prior written notice of an opportunity to satisfy such a requirement, and (y) in no event shall such Holder’s or beneficial owner’s or other person’s obligation to satisfy such a requirement require such Holder or beneficial owner or other person to provide any materially more onerous information, documents or other evidence than would be required to be provided had such Holder or beneficial owner or other person been required to file Internal Revenue Service Forms W-8BEN, W-8BEN-E, W-8ECI, W-8EXP and/or W-8IMY; or
(iii) imposed as a result of the presentation by reason of a Note Holder or beneficial owner of a Debt Security, or any other person through which the Holder or beneficial owner holds a Debt Security, having presented the Debt Security for payment (where such presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder (Relevant Date, except to the extent that the holder Holder or beneficial owner or such other person would have been entitled to Additional Amounts had on presenting the Note been presented Debt Security for payment on the last day of any date during such 30 30-day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 4 contracts
Sources: Bond Agreement (Peru Republic Of), Bond Agreement (Peru Republic Of), Bond Agreement (Peru Republic Of)
Additional Amounts. (a) All payments and deliveries made by by, or on behalf of of, the Issuer Company or any of successor to the Guarantors (including, in each case, any successor entity) Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of the Accreted Principal Amount, the Fundamental Change Repurchase Price or the Redemption Price, payments of interest, including any additional interest, payments of cash upon conversion of the Notes or and deliveries of Ordinary Shares (together with payments of cash in lieu of any Note Guarantee fractional Ordinary Share) upon conversion of the Notes, shall be made free and clear of and without withholding or deduction for, or on account of, any present or future Taxes taxes, duties, assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or within any jurisdiction in which the Company or any successor to the Company is organized or resident for tax purposes, maintaining a permanent establishment, or doing business or through which payment or deliveries is made or deemed made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless the such withholding or deduction of such Taxes is then required by law. If In the Issuerevent that any such withholding or deduction is so required, other than any Guarantor such withholding or any other applicable withholding agent is required by law to withhold or deduct any amount deduction for, or on account of, any Taxes that is imposed in connection with payments of cash upon conversion of the Notes or levied by or on behalf deliveries of (1) Ordinary Shares, together with payments of cash in lieu of any jurisdiction fractional Ordinary Share, upon conversion of the Notes (other than any de minimis amount of withholding or deduction in the United States) in which nature of the Issuer costs of issuance of Ordinary Shares), the Company or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect successor to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, Company shall pay to each Holder such additional amounts (the “Additional Amounts”) as may be necessary in order to ensure that the net amounts amount received and retained in respect of such payments by each the Holder or beneficial owner of Notes after such withholding or deduction (and after deducting any Taxes on the Additional Amounts) shall equal the respective amounts that would have been received and retained in respect of by such payments in the absence of Holder or beneficial owner had no such withholding or deductiondeduction been required; provided, however, provided that no Additional Amounts shall be payable with respect topayable:
(1i) for or on account of:
(A) any Taxestax, to the extent such Taxes duty, assessment or other governmental charge that would not have been imposed but for for:
(1) the holder existence of any present or former connection between the Holder or beneficial owner of such Note and the Notes (Relevant Taxing Jurisdiction, including, without limitation, such Holder or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) beneficial owner being or having been a citizen national, domiciliary or resident of such Relevant Taxing Jurisdiction or national of, treated as a resident thereof or incorporated, being or having been physically present or engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction therein or having or having had any other present or former connection with the relevant Tax Jurisdictiona permanent establishment therein, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under merely holding such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guaranteethereunder;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a such Note for payment (where in cases in which presentation is required) more than 30 days after the relevant later of the date on which the payment is first made available for of the Accreted Principal Amount, the Fundamental Change Repurchase Price or the Redemption Price, as applicable, with respect to, and interest on, such Note, together with payments of cash and the delivery of Ordinary Shares (together with payment of cash in lieu of any fractional Ordinary Share) upon conversion of such Note became due and payable pursuant to the holder terms thereof or was made or duly provided for; or
(except 3) the failure of the Holder or beneficial owner to comply with a reasonable and timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such H▇▇▇▇▇’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the holder 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 and only if and to the extent that such Holder or beneficial owner is legally entitled to Additional Amounts had the Note been presented on the last day of provide such 30 day period)information or documentation or to make such declaration or claim or to satisfy such requirement;
(3B) any estate, inheritance, gift, sale, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(4C) any Taxes tax, duty, assessment or other governmental charge that is payable other otherwise than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on under or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such NoteNotes;
(8) D) any Taxes that are imposed combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B) or (C);
(E) any taxes imposed, withheld or deducted pursuant to current Section sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version of such sections that is substantively comparable and not materially more onerous to comply withsubstantially comparable) (the “Code”), any current or future regulations promulgated thereunder, any official interpretations thereof, thereof or agreements (including any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law laws, rules or administrative practices implementing such intergovernmental agreement) entered into in connection therewith or procedures) implementing the foregoing or otherwise pursuant to any agreements entered into pursuant to current described in Section 1471(b)(11471 (b) of the Code Code; or
(F) any taxes imposed, withheld or deducted pursuant to the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021), as amended (or any amended or successor version described aboveof the Dutch Withholding Tax Act 2021), and any current or future regulations thereunder and official interpretations thereof; or
(9G) any combination taxes that were imposed with respect to any payment of clauses (1) through (8) above. In addition the Accreted Principal Amount, the Fundamental Change Repurchase Price or the Redemption Price, as applicable, with respect to, and interest on, such Note if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the foregoing, extent that no Additional Amounts would have been payable had the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any beneficial owner of the Notesapplicable Note been the Holder of such Note. For the avoidance of doubt, no Additional Amounts will be payable in the Indenture, any Note Guarantee case of withholding or any other document referred to therein, or the receipt deduction that is imposed in connection with payments of any payments with respect thereto, or enforcement of, any cash upon conversion of the Notes or deliveries of Ordinary Shares, together with payments of cash in lieu of any Note Guarantee fractional Ordinary Share (limited, solely other than any de minimis amount of withholding or deduction in the case nature of Taxes attributable to the receipt costs of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1issuance of Ordinary Shares) through (3) or (5) through (9) above or any combination thereof)upon conversion of the Notes.
(b) If the Issuer or any Guarantor, as the case may be, Company becomes aware that it will be obligated to pay Additional Amounts with respect to any payment or delivery under or with respect to the Notes or any Note GuaranteeNotes, the Issuer or the relevant Guarantor, as the case may be, Company will timely 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 after the 30th day prior to that payment dateTrustee, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate must also set forth any other information reasonably necessary to enable the Paying Agents Agent or the Conversion Agent, as the case may be, to pay Additional Amounts to Holders Holder on the relevant payment date. The Issuer or the relevant Guarantor Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Company will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, Company will make all withholdings and deductions (within the time period) required by law and will timely remit the full amount deducted or withheld to the relevant Tax taxing authority in accordance with applicable law. The Issuer or the relevant Guarantor Company will use its reasonable efforts to obtain Tax tax receipts from each Tax taxing authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will withheld and timely furnish to the Trustee (or to a Holder upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is made, Holders certified copies of Tax tax receipts evidencing payment by the Issuer Company. In the event that (i) the taxing authority of a Relevant Taxing Jurisdiction determines that amounts should have been withheld or a Guarantor, as the case may be, deducted in respect of any payments or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory deliveries under or with respect to the Notes in excess of any amounts that were actually withheld or deducted by the Company or its successor, and (ii) the Company or its successor would have been required to pay Additional Amounts if such amounts had been withheld or deducted, then the Company or its successor shall indemnify each Holder and beneficial owner of the Notes and the Trustee) by , on an after-Tax basis, for any and all losses incurred as a result of the Company’s failure to make such entitywithholdings and deductions and to pay Additional Amounts (including any Additional Amounts).
(d) Whenever Any reference in the this Indenture or this Note there is mentioned, the Notes in any context, context to the payment of amounts based upon the principal amount of Accreted Principal Amount, the Notes Fundamental Change Repurchase Price or of principalthe Redemption Price, interest or of any other amount payable under, or with respect to, any of the Notes or and interest on, any Note Guarantee, such mention shall be deemed to include mention of any Additional Amounts, unless the payment of Additional Amounts to the extent thatcontext requires otherwise, in such context, Additional Amounts are, were or would that may be payable with respect to that amount under the obligations referred to in respect thereofthis Section 3.09.
(e) The preceding Company or any successor to the Company will promptly pay when due and indemnify the Holder or beneficial owner for any present or future stamp, court or documentary Taxes or any other excise or property Taxes, charges or similar levies that arise in any taxing jurisdiction from the execution, delivery or registration or enforcement of each Note or any other document or instrument referred to herein or therein or the receipt of any payments with respect thereto.
(f) The foregoing obligations will shall survive any termination, defeasance or discharge of the this Indenture, any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, for the avoidance of doubt, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor) Company is then incorporated, engaged in businessorganized, organized or resident for tax purposes, or engaged in business or any jurisdiction from or through which any payment or deliveries is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, deemed made and any political subdivision or taxing authority or agency thereof or thereintherein having the power to tax, or the earlier resignation or removal of the Trustee.
Appears in 4 contracts
Sources: Indenture (Nebius Group N.V.), Indenture (Nebius Group N.V.), Indenture (Nebius Group N.V.)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, including any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor Issuer or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note GuaranteeNotes, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of the Notes after such withholding or deduction shall will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1i) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of the Notes, the exercise or enforcement of rights under such Note, the Indenture Note or a Note Guaranteethis Indenture, or the receipt of payments in respect of such Note or a Note GuaranteeNote;
(2ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3iii) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4iv) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note GuaranteeNotes;
(5v) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6vi) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7vii) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) viii) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9ix) any combination of clauses (1i) through (8) viii) above. In addition to the foregoing, the Issuer and the Guarantors will shall also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note Guarantee this Indenture 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1i) through (3iii) or (5v) through (9ix) above or any combination thereof).
(b) If the 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 Note GuaranteeNotes, the Issuer or the relevant Guarantor, as the case may be, will 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of such Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant GuarantorIssuer, if it is the applicable withholding agent, will shall make all withholdings and deductions (within the time period) required by law and will shall remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer or the relevant Guarantor will shall use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will shall furnish to the Trustee (or to a Holder of the Notes upon request), 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 Issuer or a Guarantor, as the case may beIssuer, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the this Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note GuaranteeNotes, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will This Section 4.09 shall survive any termination, defeasance or discharge of the 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 Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 4 contracts
Sources: Indenture (Royal Caribbean Cruises LTD), Indenture (Royal Caribbean Cruises LTD), Indenture (Royal Caribbean Cruises LTD)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes (whether or not in the form of Definitive Registered Notes) or any of the Guarantors with respect to its Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor (including any successor entity) is or was then incorporated, engaged in business, organized business or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2)each, a “Tax Jurisdiction”) in respect of will at any time be required to be made from any payments made by the Issuer under or with respect to the Notes or any of the Guarantors with respect to any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes holder (including Additional Amounts) after such withholding withholding, deduction or deduction shall imposition will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
(1i) any Taxes, to the extent such Taxes that would not have been imposed but for the holder or the beneficial owner Beneficial Owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present incorporated in or having carrying on a permanent establishment inbusiness, in the relevant Tax Jurisdiction in which such Taxes are imposed or having or having had any other present or former connection with the relevant Tax Jurisdiction, Jurisdiction other than any connection arising solely from the mere acquisition, ownership or disposition of Notesholding, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments payment in respect of such Note the Notes or a with respect to any Note Guarantee;
(2ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note presented for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3iii) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4iv) any Taxes withheld, deducted or imposed on a payment to an individual and that are 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 26 and 27 November 2000 on the taxation of savings income, or any law implementing or complying with or introduced in order to conform to, such directive;
(v) any Note presented for payment by or on behalf of a holder of Notes who would have been able to avoid such withholding or deduction by presenting the relevant Note to another Paying Agent;
(vi) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any Note Guarantee;
(5vii) any Taxes to the extent such Taxes would not have been are imposed or withheld but for by reason of the failure of the holder or beneficial owner Beneficial Owner of the Notes, following the Issuer’s reasonable written request addressed with reasonable prior written notice to the holder at least 60 days before any such withholding or deduction would be imposedBeneficial Owner, to comply with any certification, identification, information or other reporting requirementsrequirements (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 Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner Beneficial Owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;; or
(6viii) any combination of items (i) through (vii) above; nor will any Additional Amounts be paid with respect to any Taxes imposed on any payment of principal or interest on the Note or payments under the Note Guarantees in connection with respect thereof to any holder who is either a Note presented for payment (where presentation is permitted or required for payment) by or on behalf fiduciary of a holder Beneficial Owner or beneficial owner of the Notes a partnership to the extent such Taxes could have been avoided by presenting principal or interest payment would be required (under the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by tax laws of the jurisdiction of the Issuer or any or, if applicable, the tax laws of the Guarantors jurisdiction of a Guarantor) to be included in the holder taxable income of either the Notes Beneficial Owner (in the case of a fiduciary) or a partner (in the case of a partnership) if such holder is a fiduciary Beneficial Owner or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes partner would not have been imposed on entitled to such payments Additional Amounts had such holder Beneficial Owner or partner been the sole beneficial owner holder of such Note;.
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”b) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxestaxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) or Taxes which are levied by any jurisdiction Tax Jurisdiction on the execution, delivery, issuance, registration or registration enforcement of any of the Notes, the this Indenture, any Note Guarantee 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof)Collateral Documents.
(bc) If the 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 Note Guarantee, each of the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th day less than 45 days prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates must also set forth any other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to Holders holders on the relevant payment date. The Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely solely on such an Officer’s Certificate as conclusive proof that such payments are necessary.
(cd) The Issuer or Upon written request the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer or the relevant Guarantor will use its reasonable efforts provide to obtain Tax the Trustee copies of receipts from each Tax authority or, if such receipts are not obtainable, other documentation reasonably satisfactory to the Trustee evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon Upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax those receipts evidencing payment by the Issuer or a Guarantorother documentation, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory will be made available by the Trustee to the Trustee) by such entityholders of the Notes.
(de) Whenever in the this Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note GuaranteeNotes, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 4 contracts
Sources: Indenture (Sappi LTD), Indenture (Sappi LTD), Indenture (Sappi LTD)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then Unless required by law. If the Issuer, each Issuer and each Guarantor shall pay all amounts of principal of, and any premium and interest on, any Notes, without deduction or withholding for any taxes, levies, imposts, duties, assessments or other governmental charges (including any penalties, interest and additions to tax related thereto) (“Taxes”) imposed by any jurisdiction where any Issuer or Guarantor (or any other applicable withholding agent is required by law to withhold successor thereto) is, at the relevant time, organized, resident or deduct any amount fordoing business for tax purposes, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or Guarantor makes any Guarantor payment on the Notes, as the case may be (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2)each, a “Tax Taxing Jurisdiction”) in respect ). If deduction or withholding of any payments under or with respect to the Notes or of these charges by any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premiumapplicable withholding agent is required by a Taxing Jurisdiction, the applicable Issuer or the relevant applicable Guarantor, as applicablethe case may be, shall subject to the exceptions listed below, will pay such any additional amounts (the “Additional Amounts”) as may be necessary in order that to make the net amounts received and retained in respect of such payments by each amount paid to the affected beneficial owner of Notes after such withholding or deduction shall owners equal the respective amounts that amount the beneficial owners would have been received and retained in respect of such payments in the absence of such the deduction or withholding (including any deduction or deduction; providedwithholding attributable to the additional amounts). However, however, that no these Additional Amounts shall not be payable with respect topaid on account of:
(1) the amount of any Taxes, to Tax imposed by the extent such Taxes would not have been United States or any political subdivision thereof;
(2) the amount of any Tax imposed but for by any government of any jurisdiction other than a Taxing Jurisdiction;
(3) the holder amount of any Tax that is only payable because either (A) a present or former connection exists between the Holder or beneficial owner of the Notes (or and a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Taxing Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any a connection arising solely resulting from the acquisitionpurchase, ownership or disposition of Notes, such Notes (including the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, thereunder or the receipt of payments in respect of such Note thereof), or a Note Guarantee;
(2B) any Taxes, to the extent such Taxes were imposed as a result of Holder or beneficial owner presented the presentation of a Note Notes for payment (where presentation is required) more than 30 days after the date on which the relevant payment became due or was provided for, whichever is first made available for payment to the holder (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period)later;
(34) any estate, inheritance, gift, sale, transfer, excise, value added, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note GuaranteeTax;
(5) the amount of any Taxes Tax that is not required to be deducted or withheld by an applicable withholding agent from any payment by the extent such Taxes would not have been applicable Issuer or the applicable Guarantor, as the case may be, on the Notes;
(6) the amount of any Tax that is imposed or withheld but for due to the failure of the holder Holder or beneficial owner of the NotesNotes failing to accurately comply with a request from the applicable Issuer or the applicable Guarantor (or any successor thereto), following as the Issuercase may be, either to provide information concerning the Holder’s reasonable written request addressed or beneficial owner’s nationality, residence or identity or to satisfy any information or reporting requirement, in each case, to the holder at least 60 days before any extent the Holder or beneficial owner is legally eligible to do so, or to present the relevant Note (if certificated) if such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether action is required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, the Taxing Jurisdiction as a precondition to exemption from, or reduction in in, the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agentapplicable Tax;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are tax imposed pursuant to current Section Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended of the Issue Date (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, ) any regulations promulgated thereunder, any thereunder or official interpretations thereof, or any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) and another jurisdiction implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above)law implementing such an intergovernmental agreement; or
(9) 8) any combination of Taxes described in clauses (1) through ), (8) above. In addition to the foregoing2), the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3), (4), (5), (6) or (57) through (9) above or any combination thereof).
(b) If the Issuer or any Guarantorabove. Additionally, as the case may be, becomes aware that it will be obligated to pay no Additional Amounts shall be paid with respect to any payment under to any Holder who is a fiduciary or a partnership or other than the sole beneficial owner of such Notes to the extent that the beneficiary or settlor with respect to the Notes or any Note Guaranteesuch fiduciary, the Issuer member of such partnership or the relevant Guarantorbeneficial owner of such Notes would not have been entitled to Additional Amounts had such beneficiary, as the case may besettlor, will deliver to member or beneficial owner held such Notes directly. It is understood that the Trustee on shall have no responsibility whatsoever to determine if 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 Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it Amounts is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (due or to a Holder upon request), within 60 days after the date the payment of calculate any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuer or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity.
(d) amounts. Whenever in the this Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the or any premium or interest on, or in respect of, any Notes or of principal, interest or of any other amount payable under, under or with respect to, any of to the Notes or any Note GuaranteeNotes, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 2.15 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) thereof pursuant to the provisions of this Section 2.15 and express mention of the payment of Additional Amounts in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made. The preceding obligations obligation to pay Additional Amounts under the terms and conditions described in this Section 2.15 will survive any termination, defeasance or discharge of the 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 Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 4 contracts
Sources: Indenture (Nielsen Holdings PLC), Indenture (Nielsen Holdings PLC), Indenture (Nielsen Holdings PLC)
Additional Amounts. (a) This Section 2 shall apply only in the event that the Company becomes, or a successor to the Company is, a corporation organized or existing under the laws of the United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman Islands. All payments made by or the Company on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any this Note Guarantee shall be made free and clear of and without withholding or deduction for, for or on account of, any and all present or future Taxes taxes, duties, assessments, or governmental charges of whatever nature unless the withholding or deduction of such Taxes taxes, duties, assessments or governmental charges is then required by law. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, for or on account ofof any present or future taxes, any Taxes imposed assessments or levied by or on behalf other governmental charges of (1) any jurisdiction (other than the United States) in which Kingdom, the Issuer Netherlands, the Netherlands Antilles, Bermuda or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes the Cayman Islands (or any political subdivision or taxing authority thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision taxing authority thereof or therein (each of (1therein) and (2), a “Tax Jurisdiction”) shall at any time be required in respect of any payments amounts to be paid by the Company under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premiumthis Note, the Issuer or the relevant Guarantor, as applicable, Company shall pay or cause to be paid such additional amounts (the “Additional Amounts”"ADDITIONAL AMOUNTS") as may be necessary in order that the net amounts received and retained in respect by a Holder of such payments by each beneficial owner of Notes this Note after such deduction or withholding or deduction shall equal be not less than the respective amounts that would have been received and retained specified in respect this Note to which the Holder of such payments in the absence of such withholding or deductionthis Note is entitled; provided, however, that no the Company shall not be required to make any payment of Additional Amounts shall be payable with respect tofor or on account of:
(1a) any Taxestax, assessment or other governmental charge to the extent such Taxes tax, assessment or other governmental charge would not have been imposed but for (i) the holder existence of any present or the beneficial owner of the Notes former connection between such Holder (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, nominee, trust, nominee, partnership, limited liability company partnership or corporation), other than the holding of this Note or the receipt of amounts payable in respect of this Note, the United Kingdom, the Netherlands, the Netherlands Antilles, Bermuda or the Cayman Islands or any political subdivision or taxing authority thereof or therein, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or national of, or incorporated, engaged in a trade or business in, being or having been physically present or engaged in trade or having a permanent establishment in, the relevant Tax Jurisdiction business therein or having or having had any other present a permanent establishment therein or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a this Note for payment (where presentation is required) for payment on a date more than 30 days after the relevant date on which such payment became due and payable or the date on which payment thereof is first made available for payment to the holder (duly provided for, whichever occurs later, except to the extent that the holder Holder would have been entitled to Additional Amounts had the this Note been presented on the last day of such period of 30 day period)days;
(3b) any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder of this Note or, if different, the beneficial owner of the interest payable on this Note, with a timely request of the Company addressed to such Holder or beneficial owner to provide information, documents or other evidence concerning the nationality, residence, identity or connection with the taxing jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or governmental charge;
(c) any estate, inheritance, gift, salesales, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(4d) any Taxes payable tax, assessment or other governmental charge which is collectible otherwise than by deduction withholding from payments of principal amount, redemption amount, Change of Control Payment or interest with respect to a Note or withholding from payments under, the proceeds of a sale or with respect to, the Notes or any Note Guaranteeexchange of a Note;
(5e) any Taxes tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of principal amount, redemption amount, Change of Control Payment or interest with respect to a Note, if such payment can be made, and is in fact made, without such withholding by any other Paying Agent located inside the United States;
(f) any tax, assessment or other governmental charge imposed on a Holder that is not the beneficial owner of a Note to the extent such Taxes that the beneficial owner would not have been imposed or withheld but for entitled to the failure payment of any such Additional Amounts had the holder or beneficial owner of directly held the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentationNote;
(6g) any Taxes imposed in connection with a Note presented for payment combination of items (where presentation is permitted or required for paymenta), (b), (c), (d), (e) by or on behalf of a holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
and (7f) any Taxes imposed on or above; nor shall Additional Amounts be paid with respect to any payment by of the Issuer principal of, or any of the Guarantors interest on, this Note to the holder of the Notes if such holder any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes a beneficiary or settlor would not have been imposed on such payments entitled to any Additional Amounts had such holder beneficiary or settlor been the sole beneficial owner Holder of such this Note;
(8) any Taxes that are imposed pursuant . All references to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) principal amount or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of shall include any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts payable to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofCompany pursuant to this Section 2.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 4 contracts
Sources: Indenture (NTL Communications Corp), Indenture (NTL Communications Corp), Indenture (NTL Communications Corp)
Additional Amounts. (a) All payments made by or on behalf of that the Issuer or any of the Guarantors (including, in each case, any successor entity) Issuers make under or with respect to the Notes and that any Guarantor makes under or with respect to any Note Guarantee shall will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future Taxes tax, duty, 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 on behalf of Canada, the United States, or any other jurisdiction in which either Issuer or 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 (each, a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. If the Issuer, either Issuer or any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, for or on account of, any of Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction a Relevant Taxing Jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the such Issuer or the relevant such Guarantor, as applicablethe case may be, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order to ensure that the net amounts amount received and retained in respect of such payments by each Holder or beneficial owner of the Notes after such withholding or deduction shall equal (including any withholding or deduction attributable to the respective amounts that Additional Amounts) will be not less than the amount the Holder or beneficial owners would have received if such Taxes had not been received and retained in respect of such payments in required to be withheld or deducted.
(b) Neither the absence of such withholding or deduction; providedIssuers nor any Guarantor will, however, that no pay Additional Amounts shall be payable with in respect toor on account of:
(1) any Taxes, to Taxes imposed by reason of the extent such Taxes would not have been imposed but for the holder Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder or beneficial owner, if the relevant holder such Holder or beneficial owner is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or considered as having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with (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)to the relevant Tax Jurisdiction, Relevant Taxing Jurisdiction (other than any connection arising solely from the acquisition, ownership or disposition of the Notes, the receipt of payments under or with respect to the Notes or any Guarantee, or the exercise or enforcement of rights under such Noteor with respect to the Notes, the this Indenture or a Note any Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee);
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been are imposed or withheld but for by reason of the failure of the holder Holder or beneficial owner of the Notes, following the Issuer’s reasonable Issuers’ written request addressed to the holder Holder (and made at a time that would enable the Holder or beneficial owner acting reasonably to comply with that request, and in all events at least 60 30 calendar days before the relevant date on which payment under or with respect to the Notes or any such withholding or deduction would be imposed, Guarantee is due and payable) to comply with any certification, identification, information certification or other reporting identification requirements, whether required or imposed by statute, treaty, regulation or administrative practice of a Tax Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Relevant Taxing Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Relevant Taxing Jurisdiction), but in each case, case only to the extent that the holder Holder or beneficial owner owner, as the case may be, is legally eligible to provide such certification certification;
(3) any estate, inheritance, gift, sales, transfer, personal property or documentationsimilar Taxes;
(4) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes;
(5) any Canadian Taxes paid or payable by reason of (i) the Holder, 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 (Canada), or (ii) the Holder or beneficial owner being, or not dealing at arm’s length with, a “specified shareholder” of the Issuer for the purposes of subsection 18(5) of the Income Tax Act (Canada);
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes Tax imposed on or with respect to any payment by the Issuer Issuers or any of the Guarantors a Guarantor to the holder of the Notes Holder if such holder Holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments payment had such holder been the sole 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 Notepayment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficial owner or Holder thereof would have been entitled to Additional Amounts had the Notes been presented for payment on any 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 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 order to conform to, such European Council Directive;
(9) any Tax that are is imposed or levied on or with respect to a Note presented for payment on behalf of a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Note to another paying agent in a member state of the European Union;
(10) any Taxes imposed pursuant to current Section Sections 1471 through 1474 of the Internal Revenue Code as of 1986, as amended the Issue Date (the “Code”) or and any amended or successor version that is substantively comparable and not materially more onerous to comply with, substantially comparable) any regulations promulgated thereunder, any or other official interpretations thereof, guidance thereunder or agreements (including any intergovernmental agreement between a non-U.S. jurisdiction and the United States (agreements or any related law laws, rules or administrative practices or proceduresimplementing such intergovernmental agreements) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above)in connection therewith; or
(911) 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 clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof)items.
(bc) If the Issuer or any The Issuers and each Guarantor, as 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 case may befull 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 any payment under or with respect to the Notes is due and payable, becomes aware that it if the Issuers and any Guarantor will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that such payment (unless the such obligation to pay Additional Amounts arises after the 30th day prior to that the date on which payment dateunder or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Issuer or the relevant Guarantor shall notify Issuers will deliver to the Trustee promptly thereafter) an Officer’s Certificate stating the fact that such Additional Amounts will be payable and the amount estimated to be amounts so payable. The Officer’s Certificate must also payable and will set forth any such other information reasonably (other than the identities of Holders and beneficial owners) necessary to enable the Trustee or Paying Agents Agent, as the case may be, to pay such Additional Amounts to Holders and beneficial owners on the relevant payment date. The Issuer or Trustee will make such payments in the relevant Guarantor same manner as any other payments on the Notes. The Issuers will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of such Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(ce) The Issuer or Upon request, the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer Issuers or the relevant Guarantor will use its take reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is made, a reasonable time certified copies of Tax tax receipts evidencing or other evidence of the payment by the Issuer Issuers or a such Guarantor, as the case may be, of any Taxes imposed or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) levied by such entitya Relevant Taxing Jurisdiction.
(df) Whenever 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 the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount respect of the Notes or of principal, interest or receipt of any other amount payable under, payment under or with respect to, any of to the Notes or any Note Guarantee, such mention shall be deemed to include mention the execution, issue, delivery or registration of the payment 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 Additional Amounts 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 extent thatNotes. Neither the Issuers nor any Guarantor will, in however, pay such context, Additional Amounts are, were amounts that are imposed on or would be payable in respect thereofresult from a sale or other transfer or disposition by a Holder or beneficial owner of a Note.
(eg) The preceding obligations provisions will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder or beneficial owner of its Notes, this Indenture and will apply, shall apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person person to the Issuer (Issuers or any Guarantor) Guarantor is incorporatedorganized, incorporated or otherwise resident or engaged in business, organized or resident carrying on business for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, purposes and any political subdivision or taxing authority or agency thereof or therein.
Appears in 4 contracts
Sources: Indenture (Restaurant Brands International Inc.), Indenture (Restaurant Brands International Limited Partnership), Indenture (Restaurant Brands International Limited Partnership)
Additional Amounts. (a) All payments made by or on behalf of the Issuer Issuers or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer Issuers or any Guarantor (including any successor entity), is or was then incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer Issuers or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of ), will at any time be required to be made from any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest interest, premium or premiumAdditional Interest, if any, the Issuer Issuers or the relevant Guarantor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each holder or beneficial owner of Notes after such withholding withholding, deduction or deduction shall imposition will equal the respective amounts of cash that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
(1a) any Taxes, to the extent such Taxes would not have been imposed but for the holder Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged incorporated in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction in which such Taxes are imposed or having or having had any other present or former connection with the relevant Tax Jurisdiction, Jurisdiction other than any connection arising solely from the acquisition, ownership acquisition or disposition holding of such Notes, the exercise or enforcement of rights under such Note, Note or the Indenture or under a Note Guarantee, Guarantee of a Guarantor or the receipt of payments in respect of such Note or a Note GuaranteeGuarantee of a Guarantor;
(2b) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3c) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4d) any Taxes withheld, deducted or imposed on a payment to an individual and that are 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, 2000 on the taxation of savings income, or any law implementing or complying with or introduced in order to conform to, such directive;
(e) any Note presented for payment (where presentation is required) by or on behalf of a Holder of Notes who would have been able to avoid such withholding or deduction by presenting the relevant Note to another Paying Agent in a member state of the European Union;
(f) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any Note GuaranteeGuarantee of a Guarantor;
(5g) any Taxes to the extent such Taxes would not have been are imposed or withheld but for by reason of the failure of the holder Holder or beneficial owner of the Notes, following the Issuer’s Issuers’ reasonable written request addressed to the holder Holder or beneficial owner at least 60 days before any such withholding or deduction would be imposedpayable to the holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible entitled to provide such certification or documentation;
(6h) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) withheld by or on behalf reason of a the failure of the holder or beneficial owner of the Notes to comply with the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any requirements of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) ), as of December 19, 2013 (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations promulgated thereunder, the U.S. Treasury Regulations issued thereunder or any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (interpretation thereof or any related law or administrative practices or procedures) implementing the foregoing or any agreements agreement entered into pursuant to current Section 1471(b)(11471(b) of the Code Code;
(i) any withholding Tax imposed by the United States or any amended or successor version described above)a political subdivision thereof; or
(9j) any combination of clauses (1a) through (8) i) above. In addition to the foregoing, the Issuer Issuers and the any Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax any other liabilities related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indentureindenture, any Note Guarantee of a Guarantor 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) Guarantor. If the Issuer Issuers or any Guarantor, as the case may be, becomes aware that it or they will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Note GuaranteeGuarantee of a Guarantor, the Issuer Issuers or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer Issuers or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Officers’ Certificates must also set forth any other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to Holders holders on the relevant payment date. The Issuer Issuers or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Officers’ Certificate as conclusive proof that such payments are necessary.
(c) , and may conclusively presume that no payments are necessary unless and until it receives any such Officers’ Certificate. The Issuer Issuers or the relevant Guarantor, if it is the applicable withholding agent, Guarantor will make all withholdings and deductions (within the time periodperiod and in the minimum amount) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer Issuers or the relevant Guarantor will use its their reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer Issuers or the relevant Guarantor will furnish to the Trustee (or to a Holder holder upon request), 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 Issuer Issuers 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 (reasonably satisfactory to the Trustee) by such entity.
(d) . Whenever in the Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or Additional Interest, if any, or of any other amount payable under, or with respect to, any of the Notes or any Note GuaranteeGuarantee of a Guarantor, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) . The preceding above obligations will 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 any successor Person to the Issuer (Issuers or any Guarantor) Guarantor is incorporated, engaged in business, organized business for tax purposes or resident for tax purposes, purposes or any jurisdiction from or through which such Person makes any payment is made under or with respect to on the Notes (or any Note GuaranteeGuarantee of a Guarantor) by and any department or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 4 contracts
Sources: Indenture (Endo International PLC), Indenture (Endo International PLC), Indenture (Endo International PLC)
Additional Amounts. (a) All payments made by or on behalf in respect of the Issuer or Notes (including any of the Guarantors (including, in each case, any successor entitypayments made pursuant to a Note Guarantee) under or with respect to the Notes or any Note Guarantee shall be made free and clear of and without any withholding or deduction for, for or on account of, of any present or future Taxes Taxes, unless the withholding or deduction of such Taxes is then required by lawlaw or by the administration thereof. If the Issuer, any Guarantor or any other applicable withholding agent is so required by any law of any Taxing Jurisdiction to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with sum payable in respect to of the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premiumNotes, the Issuer or the relevant applicable Guarantor, as applicablethe case may be, shall will (1) pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect receivable by Holders (or beneficial owners) of such payments by each beneficial owner of any Notes after such withholding or deduction shall equal the respective amounts that would have been received and retained (including any withholding or deduction in respect of such payments payment of Additional Amounts) equals the respective amounts which would have been receivable by such Holders (or beneficial owners) in the absence of such withholding or deduction; provided, however(2) make such withholding or deduction, and (3) pay the full amount withheld or deducted to the relevant tax or other authority in accordance with applicable law, except that no such Additional Amounts shall will be payable with in respect toof any Note:
(1i) any Taxes, to the extent that such Taxes would not have been are imposed but for the holder or levied by reason of such Holder (or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporationowner) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former some connection with the relevant Tax Jurisdiction, Taxing Jurisdiction other than any connection arising solely from the acquisition, ownership mere holding (or disposition beneficial ownership) of Notes, the exercise such Note or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of receiving payments in respect of such the Note or (including any payments made pursuant to a Note Guarantee) or enforcing its rights thereunder (including, but not limited to: citizenship, nationality, residence, domicile, or existence of a business, permanent establishment, a dependent agent, a place of business or a place of management present or deemed present in the Taxing Jurisdiction);
(2ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable Tax is imposed other than by deduction or withholding from payments under, or with in respect to, of the Notes or (including any payments made pursuant to a Note Guarantee);
(5iii) in respect of any Taxes to the extent such Taxes that would not have been imposed so deducted or withheld but for the failure of by the holder Holder (or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, owner) to comply with any certification, identification, information identification or other reporting requirementsrequirement concerning such Holder’s (or beneficial owner’s) nationality, whether residence, identity or connection with the Taxing Jurisdiction if (1) compliance is required by statuteapplicable law, treatyregulation, regulation or administrative practice of a Tax Jurisdiction, or treaty as a precondition to exemption fromfrom all or part of the Taxes, or reduction in (2) the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction Holder (including, without limitation, a certification that the holder or beneficial owner owner) is not resident in able to comply with these requirements without undue hardship and (3) the Tax Jurisdiction), but in each case, only to Issuer has given the extent the holder Holders (or beneficial owner is legally eligible owners) at least 30 calendar days prior notice that they will be required to provide comply with such certification or documentationrequirement;
(6iv) any Taxes imposed in connection with a the event that the Holder fails to surrender (where surrender is required) its Note presented for payment within 30 days after the Issuer has made available a payment of principal or interest; provided that the Issuer shall pay Additional Amounts to which a Holder (where presentation is permitted or required for payment) by or on behalf of a holder or beneficial owner of the Notes to the extent such Taxes could owner) would have been avoided by presenting entitled had the relevant Note to, or otherwise accepting payment from, another Paying Agentbeen surrendered on the last day of such 30-day period;
(7v) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Noteare estate, inheritance, gift, personal property, excise, transfer, use or sales or any similar Taxes;
(8) any vi) where such Taxes that are imposed on or in respect of any Note pursuant to current Section sections 1471 through to 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) ), any successor law or any amended regulation implementing or complying with, or introduced in order to conform to, such sections (to the extent each successor version that law or regulation is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, than such sections as enacted on such date) or any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements agreement entered into pursuant to current Section section 1471(b)(1) of the Code Code;
(vii) to the extent that such Taxes are imposed or withheld in connection with the presentation of any amended note for payment by or successor version described above)on behalf of a holder or beneficial owner of such notes who would have been able to avoid such Taxes by presenting the relevant note to, or accepting payment from, another Paying Agent; or
(9viii) any combination of clauses items (1i) through (8) vii) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).;
(b) If No Additional Amounts will be paid to a Holder that is a fiduciary or a partnership or not the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or such beneficial owner would not have been entitled to receive the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder.
(c) All references in this Indenture to principal, premium, if any, and interest on the Notes shall include any Additional Amounts payable by the Issuer or any Guarantorthe Guarantors, as the case may be, becomes aware that it will be obligated to pay Additional Amounts with in respect to any payment under or with respect to the Notes or any Note Guaranteeof such principal, the Issuer or the relevant Guarantorpremium, as the case may beif any, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment and interest.
(unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafterd) 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 Issuer or the relevant Guarantor will shall promptly provide the Trustee with documentation reasonably satisfactory to a copy of the Trustee evidencing the payment official acknowledgment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant GuarantorTaxing Jurisdiction (or, if it such acknowledgment is the applicable withholding agentnot available, will make all withholdings and deductions (within the time periodother reasonable documentation) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 withheld or deducted from a payment in respect of the Notes by or withheld. The Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), within 60 days after the date the payment on behalf of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuer or a Guarantor, as the case may be, or if, notwithstanding . Copies of such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory documentation will be made available to the TrusteeHolders (or beneficial owners) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principalthe Paying Agent, interest or of any other amount payable underas applicable, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofupon written request therefor.
(e) The preceding obligations will survive Issuer shall pay any terminationstamp, defeasance issue, registration, documentary or discharge other similar taxes and duties, including interest and penalties, imposed by a Taxing Jurisdiction in respect of the Indenturecreation, any transfer by a holder issue, delivery, registration and offering of the Notes or beneficial owner the execution of its the Notes, the Note Guarantees, this Indenture or any other related document or instrument. The Issuer shall also pay and will applyindemnify the Trustee, mutatis mutandisthe Holders and beneficial owners, to and the Paying Agent from and against all court taxes or other taxes and duties, including interest and penalties, paid by any of them in any jurisdiction in which connection with any successor Person action permitted to be taken by the Issuer (or any Guarantor) is incorporatedTrustee, engaged in business, organized or resident for tax purposesthe Holders and beneficial owners, or any jurisdiction from or through which payment is made the Paying Agent to enforce the Issuer’s obligations under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or thereinNotes.
Appears in 3 contracts
Sources: Indenture (Auna S.A.), Indenture (Auna S.A.), Indenture (Auna S.A.A.)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Backstop Notes or any Note Guarantee thereof shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Backstop Notes or any Note GuaranteeGuarantee thereof, including, without limitation, payments of principal, redemption priceRedemption Price, purchase price, interest interest, duration fees or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes Holder after such withholding or deduction shall will equal the respective amounts that would have been received and retained by each Holder in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 3 contracts
Sources: Second Supplemental Indenture (Norwegian Cruise Line Holdings Ltd.), Second Supplemental Indenture (NCL CORP Ltd.), Indenture (Norwegian Cruise Line Holdings Ltd.)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, including any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor Issuer or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction (other than the United States) from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note GuaranteeNotes, including, without limitation, payments of principal, redemption priceRedemption Price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of the Notes after such withholding or deduction shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder, if the relevant holder Holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of the Notes, the exercise or enforcement of rights under such Note, Note or the Indenture or a Note GuaranteeIndenture, or the receipt of payments in respect of such Note or a Note GuaranteeNote;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note GuaranteeNotes;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder Holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder Holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner of the Notes is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder Holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder Holder of the Notes if such holder Holder is a fiduciary or partnership or any person Person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder Holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder Holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note Guarantee Indenture 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note GuaranteeNotes, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee in writing 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 Certificates 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely absolutely, and without liability to any Person therefor, on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant GuarantorIssuer, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable lawApplicable Law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 Issuer or a Guarantor, as the case may beIssuer, or if, notwithstanding such entitythe Issuer’s efforts to obtain such receipts, Tax receipts are not obtained, other evidence of payments (reasonably satisfactory to payment by the Trustee) by such entityIssuer of any Taxes so deducted or withheld.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note GuaranteeNotes, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction (other than the United States) in which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction (other than the United States) from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 3 contracts
Sources: Indenture (Royal Caribbean Cruises LTD), Indenture (Royal Caribbean Cruises LTD), Indenture (Royal Caribbean Cruises LTD)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors Company (including, in each case, including any successor entity) ), under or with respect to the Notes or any Note Guarantee shall will be made free and clear of and without withholding or deduction for, or on account of, any present or future Taxes tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and additions to tax related thereto, and, for the avoidance of doubt, including any withholding or deduction for or on account of the foregoing) (“Taxes”) unless the withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor Company or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor Company is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor Company (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note GuaranteeNotes, including, without limitation, payments of principal, redemption priceRedemption Price, purchase price, payments upon conversion, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall Company will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
(1i) any Taxes, to the extent such Taxes would not have been imposed but for the holder Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder, if the relevant holder Holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture Note or a Note Guaranteethis Indenture, or the receipt of payments in respect of such Note or a Note GuaranteeNote;
(2ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3iii) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4iv) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note GuaranteeNotes;
(5v) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder Holder or beneficial owner of the Notes, following the IssuerCompany’s reasonable written request addressed to the holder Holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible to provide such certification or documentation;
(6vi) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder Holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agentpaying agent;
(7vii) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors Company to the holder Holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder Holder been the sole beneficial owner of such Note;
(8) viii) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9ix) any combination of clauses (1i) through (8) viii) above. .
(b) In addition to the foregoing, the Issuer and the Guarantors Company will also pay and indemnify the holder Holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the this Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1i) through (3iii) or (5v) through (9ix) above or any combination thereof).
(bc) If the Issuer or any Guarantor, as the case may be, Company 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 GuaranteeNotes, the Issuer or the relevant Guarantor, as the case may be, Company 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor Company 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 Certificates must also set forth any other information reasonably necessary to enable the Paying Agents Agent to pay Additional Amounts to Holders holders on the relevant payment date. The Issuer or the relevant Guarantor Company will provide the Trustee with documentation reasonably satisfactory to the Trustee trustee evidencing the payment of such Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(cd) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, Company will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer or the relevant Guarantor Company will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor Company will furnish to the Trustee (or to a Holder of the Notes upon request), 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 Issuer or a Guarantor, as the case may beCompany, or if, notwithstanding such entitythe Company’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to by the Trustee) by such entityCompany.
(de) Whenever in the this Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes notes or of principal, interest or of any other amount payable under, or with respect to, any of to the Notes or any Note GuaranteeNotes, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(ef) The preceding obligations This Section 4.07 will survive any termination, defeasance or discharge of the 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 person to the Issuer (or any Guarantor) Company is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person person and, in each case, any political subdivision thereof or therein.
Appears in 3 contracts
Sources: Indenture (Royal Caribbean Cruises LTD), Indenture (Royal Caribbean Cruises LTD), Indenture (Royal Caribbean Cruises LTD)
Additional Amounts. (a) All payments made (including any premium paid upon redemption of the Notes) by or on behalf of the Issuer or any a successor in respect of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any the Guarantors or a successor in respect of the Note Guarantee shall Guaranties will be made free and clear of of, and without withholding or deduction for, or on account of, of any present or future Taxes unless the withholding or deduction of such Taxes is then required by law. If the Issuertaxes, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount forduties, assessments, or on account of, any Taxes other governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf of (1) any jurisdiction (other than Brazil, the United States) , or any authority therein or thereof or any other jurisdiction in which the Issuer or any Guarantor is the Guarantors (in each case, their successor) are organized, doing business or was incorporatedfrom or through which payments are made in respect of the Notes, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision taxing authority thereof or therein (each any of (1) and (2the aforementioned being a “Taxing Jurisdiction”), a “Tax Jurisdiction”unless the Issuer or the Guarantors (or their respective successor) in respect of any payments under are compelled by law to deduct or with respect to the Notes withhold such taxes, duties, assessments, or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premiumgovernmental charges. In such event, the Issuer or the relevant GuarantorGuarantors (or their respective successor) will make such deduction or withholding, as applicable, shall make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts (the “Additional Amounts”) Amounts as may be necessary in order to ensure that the net amounts received and retained in respect of such payments by each beneficial owner registered Holders of Notes after such withholding or deduction shall equal the respective amounts that of principal and interest (or other amounts stated to be payable under the Notes) which would have been received and retained in respect of such payments the Notes in the absence of such withholding or deduction; provideddeduction (“Additional Amounts”). Notwithstanding the foregoing, however, that no such Additional Amounts shall be payable with respect topayable:
(1i) any Taxesto, or to the extent a third party on behalf of, a Holder who is liable for such Taxes would not have been imposed but for the holder or the beneficial owner in respect of such Note by reason of the Notes existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, a trust, nominee, a partnership, limited liability company or a corporation) and the relevant Taxing Jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or national of, being or incorporated, having been engaged in a trade or business inor present therein or having, being or having been physically present in or having had, a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdictiontherein, other than any connection arising solely from the acquisition, ownership or disposition mere holding of Notes, the exercise Note or enforcement of rights under such Note, the Indenture or a Note Guarantee, or and the receipt of payments with respect to the Note;
(ii) in respect of such Note Taxes that would not have been so withheld or a Note Guarantee;
(2) any Taxes, to deducted if the extent such Taxes were imposed as a result of the presentation of a Note notes had been surrendered or presented for payment (where presentation if surrender or presentment is required) not more than 30 days after the relevant payment is first made available for payment to the holder (Relevant Date except to the extent that payments under such Note would have been subject to withholdings and the holder Holder of such Note would have been entitled to such Additional Amounts had the Amounts, on surrender of such Note been presented for payment on the last day of such period of 30 day period)days;
(3iii) to, or to a third party on behalf of, a Holder who is liable for such Taxes by reason of such Holder’s failure to comply with any certification, identification, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder, if (1) compliance is required by law or an applicable income treaty as a precondition to, exemption from, or reduction in the rate of, the Tax, and (2) the Issuer has given the Holders at least 30 days’ notice that Holders will be required to provide such certification, identification, documentation or other requirement;
(iv) in respect of any estate, inheritance, gift, salesales, transfer, excise or personal property or similar TaxesTax, other than as provided in Section 4.06(g) of the Indenture;
(4v) in respect of any Taxes Tax which is payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
of principal of (5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”including premium) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and interest on the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above)Note; or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 3 contracts
Sources: Indenture (Azul Sa), Indenture (Azul Sa), Indenture (Azul Sa)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, including any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor Issuer or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction (other than the United States) from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note GuaranteeNotes, including, without limitation, payments of principal, redemption priceRedemption Price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of the Notes after such withholding or deduction shall will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1i) any Taxes, to the extent such Taxes would not have been imposed but for the holder Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder, if the relevant holder Holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of the Notes, the exercise or enforcement of rights under such Note, the Indenture Note or a Note Guaranteethis Indenture, or the receipt of payments in respect of such Note or a Note GuaranteeNote;
(2ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3iii) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4iv) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note GuaranteeNotes;
(5v) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder Holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder Holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner of the Notes is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible to provide such certification or documentation;
(6vi) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder Holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7vii) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder Holder of the Notes if such holder Holder is a fiduciary or partnership or any person Person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder Holder been the sole beneficial owner of such Note;
(8) viii) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9ix) any combination of clauses (1i) through (8) viii) above. In addition to the foregoing, the Issuer and the Guarantors will shall also pay and indemnify the holder Holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note Guarantee this Indenture 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1i) through (3iii) or (5v) through (9ix) above or any combination thereof).
(b) If the 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 Note GuaranteeNotes, the Issuer or the relevant Guarantor, as the case may be, will 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee in writing 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 Certificates 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of such Additional Amounts. The Trustee shall be entitled to rely absolutely absolutely, and without liability to any Person therefor, on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant GuarantorIssuer, if it is the applicable withholding agent, will shall make all withholdings and deductions (within the time period) required by law and will shall remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable lawApplicable Law. The Issuer or the relevant Guarantor will shall use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will shall furnish to the Trustee (or to a Holder of the Notes upon request), 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 Issuer or a Guarantor, as the case may beIssuer, or if, notwithstanding such entitythe Issuer’s efforts to obtain such receipts, Tax receipts are not obtained, other evidence of payments (reasonably satisfactory to payment by the Trustee) by such entityIssuer of any Taxes so deducted or withheld.
(d) Whenever in the this Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note GuaranteeNotes, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will This Section 4.09 shall survive any termination, defeasance or discharge of the this Indenture, any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction (other than the United States) in which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction (other than the United States) from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 3 contracts
Sources: Indenture (Royal Caribbean Cruises LTD), Indenture (Royal Caribbean Cruises LTD), Indenture (Royal Caribbean Cruises LTD)
Additional Amounts. If any taxes, assessments or other governmental charges are imposed by the jurisdiction, other than the United States, where the Guarantor or a successor (aa “Payor”) All payments made by is organized or otherwise considered to be a resident for tax purposes, any jurisdiction, other than the United States, from or through which the Payor makes a payment on behalf the Securities of the Issuer or any of the Guarantors (includingSeries, or, in each case, any successor entity) under political organization or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision governmental authority thereof or therein or having the power to tax (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Relevant Tax Jurisdiction”) in respect of any payments under or with respect the Securities of such Series, the Payor shall pay to each Holder of any such Security, to the Notes or any Note Guaranteeextent it may lawfully do so, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained paid to such Holder will be not less than the amount specified in respect of such payments by each beneficial owner of Notes after Security to which such withholding or deduction shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deductionholder is entitled; provided, however, that no the Payor shall not be required to make any payment of Additional Amounts shall be payable with respect tofor or on account of:
(1a) any Taxestax, to the extent such Taxes assessment or other governmental charge which would not have been imposed but for (i) the holder existence of any present or the beneficial owner of the Notes former connection between such Holder (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, trust, nominee, partnership, limited liability company or corporation) and the Relevant Tax Jurisdiction including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or national of, being or incorporated, having been present or engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction therein or having or having had any other present a permanent establishment therein or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment Security (where presentation is required) for payment on a date more than 30 days after (x) the relevant date on which such payment became due and payable or (y) the date on which payment thereof is first made available for payment to the holder (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period)duly provided for, whichever occurs later;
(3b) any estate, inheritance, gift, salesales, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(4c) any Taxes tax, assessment or other governmental charge which is payable other otherwise than by deduction or withholding from payments underpayment of (or in respect of) principal of, premium, if any, or with respect toany interest on, the Notes or any Note GuaranteeSecurities of such Series;
(5d) any Taxes to the extent such Taxes would not have been tax, assessment or other governmental charge that is imposed or withheld but for by reason of the failure of by the holder Holder or the beneficial owner of the Notes, following Securities of such Series to comply with a request of the Issuer’s reasonable written request Payor addressed to the holder at least 60 days before any such withholding or deduction would be imposedHolder to provide information, to comply with any certification, identification, information documents or other reporting requirementsevidence concerning the nationality, whether residence or identity of the Holder or such beneficial owner which is required by a statute, treaty, regulation or administrative practice of a Tax Jurisdiction, the taxing jurisdiction as a precondition to exemption fromfrom all or part of such tax, assessment or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;other governmental charge; or
(6e) any Taxes 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 combination of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or above; nor will Additional Amounts be paid with respect to any payment by of the Issuer principal of, or any premium or interest on, any Securities of the Guarantors such Series to the holder of the Notes if such holder any Holder who is a fiduciary or partnership or any person limited liability company or other than the sole beneficial owner of such payment to the extent that such Taxes payment would be required by the laws of the Relevant Tax Jurisdiction to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership, limited liability company or beneficial owner who would not have been imposed on entitled to such payments Additional Amounts had such holder it been the sole beneficial owner Holder of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payableSecurities. 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 Issuer or the relevant Guarantor will Payor shall provide the Trustee with documentation reasonably satisfactory to the Trustee official acknowledgment of the relevant tax authority (or, if such acknowledgment is not available, a certified copy thereof) evidencing the payment of Additional Amountsthe withholding taxes by the Payor. The Trustee Copies of such documentation shall be entitled made available to rely absolutely on an Officer’s Certificate as conclusive proof that the holders of the Securities of such payments are necessary.
(c) The Issuer Series or the relevant Guarantor, if it is the applicable withholding paying agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable lawas applicable, upon request therefor. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the this Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principalany premium or interest on, interest or in respect of, any Security of any other amount payable under, Series or with respect to, the net proceeds received on the sale or exchange of any Security of the Notes or any Note GuaranteeSeries, such mention shall be deemed to include mention of the payment of Additional Amounts provided 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 thereof.
(e) The preceding obligations will survive any terminationthereof pursuant to such terms, defeasance or discharge and express mention of the Indenturepayment 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, any transfer by 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 holder or beneficial owner payment of its Notesprincipal is made), and will apply, mutatis mutandis, at least 10 days prior to each date of payment of principal or interest if there has been any jurisdiction in which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or change with respect to the Notes (matters set forth in the below-mentioned Officers’ Certificate, the Company shall furnish to the Trustee and the principal Paying Agent or any Note Guarantee) by 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 behalf account of any tax, assessment or other governmental charge described in the Securities of such Person andSeries. If any such withholding shall be required, in each casethen 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 political subdivision thereof loss, liability or thereinexpense 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 made by or on behalf of the Issuer Company or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes (whether or not in the form of Definitive Registered Notes) or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1i) any jurisdiction (other than the United States) in which the Issuer Company or any Guarantor (including any successor entity), is or was then incorporated, engaged in business, organized or resident for tax purposes or any political subdivision or governmental authority thereof or therein or (2ii) any jurisdiction from or through which any payment is made by or on behalf of the Issuer Company or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision or governmental authority thereof or therein (each of (1i) and (2ii), a “Tax Jurisdiction”) in respect of ), will at any time be required to be made from any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer Company or the relevant GuarantorGuarantor or other payor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each Holder or beneficial owner of Notes (including Additional Amounts) after such withholding withholding, deduction or deduction shall imposition will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
: (1i) any Taxes, to the extent such Taxes would not have been imposed but for the holder Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder, if the relevant holder Holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged incorporated in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction in which such Taxes are imposed or having or having had any other present or former connection with the relevant Tax Jurisdiction, Jurisdiction other than any connection arising solely from the acquisition, ownership acquisition or disposition holding of such Notes, the exercise or enforcement of rights under such Note, Note or the Indenture or under a Note Guarantee, Guarantee or the receipt of payments in respect of such Note or a Note Guarantee;
; (2ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
; (3iii) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
; (4iv) any Taxes withheld, deducted or imposed on a payment to an individual and that are 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, 2000 on the taxation of savings income, or any law implementing or complying with or introduced in order to conform to, such directive; (v) any Taxes imposed as result of any Note 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 the relevant Note to another Paying Agent in a member state of the European Union; (vi) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any Note Guarantee;
; (5vii) any Taxes to the extent such Taxes would not have been are imposed or withheld but for by reason of the failure of the holder Holder or beneficial owner of the Notes, following the IssuerCompany’s reasonable written request addressed to the holder Holder or beneficial owner at least 60 days before any such withholding or deduction would be imposedpayable to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible entitled to provide such certification or documentation;
; (6viii) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) withheld by or on behalf reason of a holder the failure of the Holder or beneficial owner of the Notes to comply with the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any requirements of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) ), as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations promulgated thereunder, the U.S. Treasury Regulations issued thereunder or any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (interpretation thereof or any related law or administrative practices or procedures) implementing the foregoing or any agreements agreement entered into pursuant to current Section 1471(b)(1) 1471 of the Code Code; or (or any amended or successor version described above); or
(9ix) any combination of clauses (1) through (8) above. .
(b) In addition to the foregoing, the Issuer Company and the Guarantors will also pay and indemnify the holder Holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax any other liabilities related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof)Guarantee.
(bc) If the Issuer Company 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 Note Guarantee, the Issuer Company or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer Company or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates 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 Issuer Company or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary, and may conclusively presume that no payments are necessary unless and until it receives any such Officer’s Certificate.
(cd) The Issuer Company or the relevant Guarantor, if it is the applicable withholding agent, Guarantor will make all withholdings and deductions (within the time periodperiod and in the minimum amount) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer Company 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 Issuer Company or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 Issuer Company 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 (reasonably satisfactory to the Trustee) by such entity.
(de) Whenever in the Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The obligations described under Sections 4.01(c), (d), (e) The preceding obligations and (f) of the Indenture will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (Company or any Guarantor) Guarantor is incorporated, engaged in business, organized business for tax purposes or resident for tax purposes, purposes or any jurisdiction from or through which such Person makes any payment is made under or with respect to on the Notes (or any Note Guarantee) by and any department or on behalf of such Person and, in each case, any political subdivision or taxing authority or agency thereof or thereintherein having the power to tax.
Appears in 3 contracts
Sources: Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) a Foreign Guarantor under or with respect to the Notes or any Note its Guarantee shall will be made free and clear of of, and without withholding or deduction for, or on account of, any present or future Taxes taxes, unless the withholding or deduction of such Taxes taxes is then required by law. If the Issuer, any Guarantor withholding or any other applicable withholding agent is required by law to withhold or deduct any amount deduction for, or on account of, any Taxes taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or Tax Jurisdiction will at any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or time be required to be made from any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is payments made by or on behalf of the Issuer or any Foreign Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, or interest, the Issuer or the relevant Guarantor, as applicable, shall Foreign Guarantor will pay such additional amounts (the “Additional Amounts”) Amounts as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes (including Additional Amounts) after such withholding or deduction shall will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
(1a) any Taxes, to the extent such Taxes taxes that would not have been imposed but for the holder Holder or the beneficial owner of the Notes (or being a fiduciarycitizen, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present incorporated in or having carrying on a permanent establishment business in, the relevant Tax Jurisdiction in which such taxes are imposed, or having or having had any other present or former connection with the relevant Tax JurisdictionJurisdiction in which such taxes are imposed, other than by the mere acquisition or holding of any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the enforcement or receipt of payments payment under or in respect of such any Note or a Note any Guarantee;
(2b) any Taxestaxes imposed or withheld as a result of the failure of the Holder or beneficial owner of the Notes to comply with any reasonable written request made to such Holder in writing at least 30 days before any such withholding or deduction would be payable by any Foreign Guarantors to provide timely or accurate information concerning the nationality, residence or identity of such Holder or to make any valid or timely declaration or similar claim or satisfy any certification, information or other reporting requirements (to the extent such Taxes were Holder or beneficial owner is legally eligible to do so), which is required or imposed by a statute, treaty, regulation or administrative practice of the relevant Tax Jurisdiction as a precondition to exemption from, or reduction in the rate of withholding or deduction of, such taxes;
(c) any taxes that are imposed or withheld as a result of the presentation of a any Note for payment (where presentation is requiredrequired under the Original Indenture) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3d) any estate, inheritance, gift, sale, transfer, use, personal property tax or similar Taxestax or assessment;
(4e) any Taxes tax which is payable other otherwise than by withholding or deduction or withholding from payments under, made under or with respect to, to the Notes or any Note Guarantee;
(5f) any Taxes to the extent such Taxes would not have been tax that was imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or on a Note to any of the Guarantors to the holder of the Notes if such holder Holder who is a fiduciary or partnership partnership, limited liability company or any person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such Taxes fiduciary, a member of such a partnership or limited liability company or the beneficial owner of such payment would not have been imposed on such payments entitled to the Additional Amounts had such holder beneficiary, settlor, member or beneficial owner been the sole beneficial owner actual Holder of such Note;
(8) g) any Taxes taxes that are imposed or withheld pursuant to current Section Sections 1471 through 1474 of the Internal Revenue Code as of 1986, as amended the date of the initial issuance of the Notes (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply withof such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing with respect to the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above)Code; or
(9h) any combination of clauses items (1a) through (8) g) above. In addition to the foregoing, the Issuer and the Guarantors any Foreign Guarantor will also pay and indemnify the holder Holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxestaxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are or taxes levied by any jurisdiction on the execution, delivery, issuance, registration or registration enforcement of any of the Notes, any Guarantee (other than on or in connection with a transfer of the Indenture, any Note Guarantee Notes other than the initial sale thereof by the initial purchasers in connection with the initial issuance thereof) or any other document or instrument referred to therein, or the receipt of any payments with respect thereto, or enforcement of, . If any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the Issuer or any Guarantor, as the case may be, 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 its Guarantee, the Issuer or the relevant Guarantor, as the case may be, Foreign Guarantor will deliver to the Trustee on a date that is at least 30 days prior to the date of that such payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment datethe date of such payment, in which case the Issuer or the relevant Foreign Guarantor shall notify the Trustee promptly in writing 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 Agent to pay Additional Amounts to Holders on the relevant payment date. The Issuer or the Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The relevant Foreign Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, Foreign Guarantor will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax tax authority in accordance with applicable law. The Issuer or the relevant Foreign Guarantor will use its reasonable efforts to obtain Tax tax receipts from each Tax tax authority evidencing the payment of any Taxes taxes so deducted withheld or withhelddeducted. The Issuer or the relevant Foreign Guarantor will furnish to the Trustee (or to a Holder upon request)Holders, within 60 days after the date the payment of any Taxes taxes so withheld or deducted or withheld is made, certified copies of Tax tax receipts evidencing payment by the Issuer or a Guarantor, as the case may be, Foreign Guarantor or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, . References to the payment of amounts based upon on the principal amount of the Notes amount, or of principal, interest or of on any other amount payable under, or with respect to, any of the Notes or any Note GuaranteeNotes, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) . The preceding obligations obligation set forth in this Section 2.5 will survive any termination, defeasance or discharge of the Indenture, Original Indenture or any transfer by a holder or beneficial owner Holder of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which Tax Jurisdiction applicable to any successor Person person to the Issuer (or any Foreign Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 3 contracts
Sources: Supplemental Indenture (F&G Annuities & Life, Inc.), Fourth Supplemental Indenture (Fidelity National Financial, Inc.), Third Supplemental Indenture (Fidelity & Guaranty Life Holdings, Inc.)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of The Company and the Guarantors (includingshall make all payments of, or in each caserespect of, any successor entity) under or with respect principal of and interest on the Securities, and all payments pursuant to the Notes or any Note Guarantee shall be made free and clear of and Guarantees, without withholding or deduction for, or on account ofof any Taxes, any present or future Taxes unless the withholding or deduction of such Taxes is then are required by lawthe Isle of Man or the jurisdiction of incorporation of any successor to the Company or any of the Owners (each a "Successor Jurisdiction"), as the case may be, or any such authority to be withheld or deducted. If In the Issuerevent such Taxes are to be withheld or deducted, any the Company, the relevant Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount forsuccessor, as the case may be, will pay such additional amounts of, or on account in respect of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) principal and (2), a “Tax Jurisdiction”) in respect of any payments under interest or with respect to payments pursuant to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts Guarantees (the “"Additional Amounts”") as may be necessary in order so that the net amounts amount received and retained in respect of such payments by each beneficial owner of Notes Holder (including Additional Amounts) after such withholding or deduction shall equal will not be less than the respective amounts that the Holder would have received if such Taxes had not been received and retained in respect of such payments in the absence of such withholding withheld or deduction; provideddeducted, however, except that no Additional Amounts shall be so payable with respect tofor or on account of:
(1) any Taxes, to the extent such Taxes that would not have been imposed but for for
(a) the holder existence of any present or the beneficial owner of the Notes former connection between such Holder (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, trust, nominee, partnership, limited liability company partnership or corporation) and the Isle of Man or any Successor Jurisdiction (including any territory or political subdivision of the foregoing), as the case may be, including such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen national, domiciliary or resident of or national of, treated as a resident thereof or incorporated, being or having been present or engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction therein or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guaranteepermanent establishment therein;
(2b) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note such 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
(where c) the presentation is required) of such Security more than 30 days after the relevant date on which the payment in respect of such Security became due and payable or provided for, whichever is first made available for payment to the holder (later, except to the extent that the holder Holder would have been entitled to such Additional Amounts if it had the Note been presented such Security for payment on the last any day within such period of such 30 day period)days;
(32) any estate, inheritance, gift, sale, transfer, personal property of similar tax, assessment or similar Taxesother governmental charge;
(43) any Taxes payable tax, assessment or other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been governmental charge that is imposed or withheld but for by reason of the failure of the holder Holder or beneficial owner of a Security to comply with a request of the NotesCompany or any of the Guarantors, following as the Issuer’s reasonable written request case may be, addressed to the holder at least 60 days before Holder (a) to provide reasonable information concerning the nationality, residence or identity of the Holder or such beneficial owner or (b) to make any such withholding reasonable declaration or deduction would be imposed, to comply with other similar claim or satisfy any certification, identification, reasonable information or other reporting requirementsrequirement, whether which, in the case of (a) or (b), is required or imposed by a statute, treaty, regulation or administrative practice of a Tax Jurisdiction, the taxing jurisdiction as a precondition to exemption from, from all or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner part of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986tax, as amended (the “Code”) assessment or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above)governmental charge; or
(94) any combination of clauses (1), (2) through and (8) above. In addition 3); nor shall Additional Amounts be paid with respect to any payment of the principal of or any premium or interest on any such Security, or payment pursuant to the foregoingGuarantees, to any Holder (including a fiduciary or partnership) to the Issuer and extent that the Guarantors beneficial owner would not have been entitled to such Additional Amounts had it been the Holder of the Security. The Company or the relevant Guarantors, as the case may be, will also (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company 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 any 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 and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, taxes or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by that arise in any jurisdiction on from the execution, delivery, issuance, enforcement or registration of any of the Notes, Securities or the Indenture, any Note Guarantee Guarantees or any other document referred to thereinor instrument in relation thereto, or the receipt of any payments with respect theretoto the Securities or Guarantees, excluding such taxes, charges or enforcement ofsimilar levies imposed by any jurisdiction outside of the Isle of Man, any of the Notes Successor Jurisdiction or any Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer a Paying Agent is located (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction except those resulting from or through which payment is made under required to be paid in connection with, the enforcement of the Securities or with respect 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 Notes (or Holders for any Note Guarantee) such taxes paid by or on behalf of such Person and, in each case, any political subdivision thereof or thereinHolders.
Appears in 2 contracts
Sources: Indenture (Navigator Gas Iom I-E LTD), Indenture (Navigator Gas Iom I-E LTD)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any Guarantor or any successor in interest to any of the Guarantors foregoing (includingeach, in each case, any successor entitya “Payor”) under on or with respect to the Notes Securities or any Note Guarantee shall be made free and clear of and without withholding or deduction for, or on account of, any present or future Taxes unless the such withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of of:
(1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2a) any jurisdiction from or through which payment on the Securities or any payment Guarantee is made by or on behalf of the Issuer or any Guarantor political subdivision or governmental authority thereof or therein having the power to tax (including, without limitation, including the jurisdiction of any Paying Agentpaying agent); or
(b) any other jurisdiction in which a Payor that actually makes a payment on the Securities or its Guarantee is organized or otherwise considered to be engaged in business or resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1a) and (2b), a “Tax Relevant Taxing Jurisdiction”) in respect of ), shall at any time be required by law to be made from any payments under or made with respect to the Notes Securities or any Note Guarantee, including, without limitation, including payments of principal, redemption price, purchase price, interest or premium, if any, the Issuer or the relevant Guarantor, as applicable, Payor shall pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes payments, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), shall equal not be less than the respective amounts that would have been received and retained in respect of such payments on the Securities or the Guarantees in the absence of such withholding or deduction; provided, however, that no such Additional Amounts shall be payable with respect tofor or on account of:
(1) any Taxes, to the extent such Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the holder or the beneficial owner of the Notes (or between a fiduciary, settlor, beneficiary, partner ofpartner, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant such holder is an estate, nominee, trust, nominee, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being or having been a citizen or resident or national of, or incorporated, engaged in carrying on a trade business or business in, being or having been physically present in or having maintaining a permanent establishment in, or being physically present in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Relevant Taxing Jurisdiction) but excluding, other than in each case, any connection arising solely from the acquisition, ownership or disposition holding of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, Securities or the receipt of payments any payment in respect of such Note or a Note Guaranteethereof;
(2) any Taxes that would not have been so imposed or levied if the holder had complied with a reasonable request in writing of the Payor (such request being made at a time that would enable such holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from the requirement to deduct or withhold all or a part of any such Taxes, ) but only to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation holder is required) 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 legally entitled to Additional Amounts had the Note been presented on the last day of provide such 30 day period)certification or documentation;
(3) any Taxes that are payable otherwise than by withholding or deduction from a payment on the Securities or any Guarantee;
(4) any estate, inheritance, gift, salesales, excise, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes imposed in connection with a Note Security presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder or beneficial owner of the Notes to the extent such Taxes could Holder who would have been avoided able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, Security to another Paying Agentpaying agent in a member state of the European Union;
(76) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section payable under Sections 1471 through 1474 of the Internal Revenue Code of 1986Code, as amended of the date of the Offering Memorandum (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder, any or official interpretations thereof, thereof and any agreements (including any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or proceduresagreements) implementing the foregoing or any agreements entered into pursuant thereto;
(7) any Taxes if the holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment and the Taxes that would otherwise give rise to current Section 1471(b)(1) such Additional Amounts would not have been imposed on such payment had the holder been the beneficiary, partner or sole beneficial owner, as the case may be, of such Security (but only if there is no material cost or expense associated with transferring such Security to such beneficiary, partner or sole beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, partner or sole beneficial owner);
(8) any Taxes imposed on a payment in respect of the Code (Securities required to be made pursuant to laws enacted by Switzerland providing for the taxation of payments according to principles similar to those laid down in the draft legislation of the Swiss Federal Council of 17 December 2014 altering the debtor-based Swiss federal withholding tax system to a paying-agent system where a Person other than the Issuer has to withhold tax on any interest payments or any amended or successor version described above)securing of interest payments; or
(9) any combination of the above. Such Additional Amounts shall also not be payable (x) if the payment could have been made without such deduction or withholding if the relevant Security had been presented for payment (where presentation is required) within 30 days after the relevant payment was first made available for payment to the holder or (y) to the extent where, had the beneficial owner of the relevant Security been the Holder of such Security, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above inclusive above. The Payor shall (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. Upon request, the Payor shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any combination thereof).
(b) Taxes so deducted or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and shall provide such certified copies to the Trustee. If, notwithstanding the efforts of such Payor to obtain such receipts, the same are not obtainable, such Payor shall provide the Trustee with other reasonable evidence of payment. Such receipts or other evidence received by the Trustee shall be made available by the Trustee to Holders on request. If the Issuer or any Guarantor, as the case may be, becomes aware that it will Payor shall be obligated to pay Additional Amounts under or with respect to any payment under or with respect to made on the Notes Securities or any Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless such payment, the obligation Payor shall deliver to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) and the paying agent an Officer’s Certificate stating the fact that Additional Amounts will shall be payable and the amount estimated to be so payable. The Officer’s Certificate must also set forth any payable and such other information reasonably necessary to enable the Paying Agents paying agent to pay Additional Amounts to Holders on the relevant payment date. The Issuer or date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant Guarantor will provide payment date, in which case the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee Payor shall be entitled to rely absolutely on an deliver such Officer’s Certificate and such other information as conclusive proof that such payments are necessary.
(c) The Issuer promptly as practicable thereafter). Wherever in this Indenture, the Securities or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note Guarantee there is mentioned, in any context, :
(1) the payment of amounts based upon the principal amount principal;
(2) redemption prices or purchase prices in connection with a redemption or purchase of the Notes or of principal, interest or of Securities;
(3) interest; or
(4) any other amount payable under, on or with respect to, to any of the Notes Securities or any Note Guarantee, ; such mention reference shall be deemed to include mention of the payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
. The Payor shall pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Securities, Guarantee, Indenture or any other document or instrument in relation thereto (e) other than a transfer of the Securities occurring after the initial resale). The preceding foregoing obligations will shall survive any termination, defeasance or discharge of the Indenture, any transfer by a holder or beneficial owner of its Notes, this Indenture and will apply, shall apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer (a Payor is organized or any Guarantor) is incorporated, otherwise considered to be engaged in business, organized business or resident for tax Tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision or taxing authority or agency thereof or therein.
Appears in 2 contracts
Sources: Indenture (Constellium N.V.), Indenture (Constellium N.V.)
Additional Amounts. (a) All payments made by or on behalf of principal and interest in respect of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall be made free and clear of of, and without deduction or withholding or deduction for, for or on account of, of any present or future Taxes unless the withholding taxes, duties, assessments or deduction other governmental charges of such Taxes is then required whatsoever nature imposed, levied, collected, withheld or assessed by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes States or any political subdivision or taxing authority of or in the United States, unless such withholding or deduction is required by law.
(b) The Company shall pay to a Holder of Notes who is not a United States person additional amounts as may be necessary so that every net payment of the principal of and premium, if any, and interest on the Notes to such Holder, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any taxing authority thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicabletherein, shall pay not be less than the amount provided in the Note to be then due and payable (such additional amounts (amounts, the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction); provided, however, that no the Company shall not be required to make any payment of Additional Amounts shall be payable with respect tofor or on account of:
(1i) any Taxestax, to the extent such Taxes assessment or other governmental charge that would not have been imposed but for (A) the holder existence of any present or former connection (other than a connection arising solely from the ownership of those Notes or the receipt of payments in respect of those Notes) between that Holder (or the beneficial owner for whose benefit such Holder holds such Notes), or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, that Holder or beneficial owner, if that Holder or beneficial owner is an estate, trust, partnership or corporation, and the United States, including that Holder or beneficial owner, or that fiduciary, settlor, beneficiary, member, shareholder or possessor being or having been a citizen or resident or treated as a resident of the Notes United States or being or having been engaged in trade or business or present in the United States or having had a permanent establishment in the United States or (B) the presentation of a debt security for payment on a date more than 30 days after the later of the date on which that payment becomes due and payable and the date on which payment is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property, wealth, capital gains, interest equalization or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed on foreign personal holding company income or by reason of a Holder (or the beneficial owner for whose benefit such Holder holds such Notes), or a fiduciary, settlor, beneficiary, partner beneficiary of, member or shareholder of, or possessor of a power over, the relevant holderHolder or beneficial owner, if the relevant holder that Holder or beneficial owner is an estate, trust, nominee, partnership, limited liability company partnership or corporation) , being or having been a citizen passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or resident a personal holding company with respect to the United States or national a corporation that accumulates earnings to avoid U.S. federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or premium, if any, or interest on the Notes of that Holder;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or premium, if any, or interest on the Notes of that Holder if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure of a Holder (or the beneficial owner for whose benefit such Holder holds the Notes), or a fiduciary, settlor, beneficiary of, member or shareholder of, or incorporatedpossessor of power over, engaged in the holder or beneficial owner, if that Holder or beneficial owner is an estate, trust, partnership or corporation, or any intermediary through which a trade beneficial owner holds Notes to comply with certification, information, documentation or business inother reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the beneficial owner or any Holder of the Notes (including, but not limited to, the requirement to provide Internal Revenue Service Forms W-8BEN, Forms W-8ECI, or any subsequent versions thereof or successor thereto, and including, without limitation, any documentation requirement under an applicable income tax treaty);
(vii) any tax, assessment or other governmental charge imposed as a result of a Holder (or the beneficial owner for whose benefit such Holder holds such Notes), or a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, the Holder or beneficial owner, if that Holder or beneficial owner is an estate, trust, partnership or corporation, being or having been physically present (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the Internal Revenue Code, and the regulations that may be promulgated thereunder) of the Company or having (B) a permanent establishment in, controlled foreign corporation that is related to the relevant Tax Jurisdiction Company within the meaning of Section 864(d)(4) of the Internal Revenue Code or having or having had any other present or former connection with (C) a bank receiving interest described in Section 881(c)(3)(A) of the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note GuaranteeInternal Revenue Code;
(2viii) any Taxes, withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC relating to the extent taxation of savings, or any law implementing or complying with, or introduced in order to conform to, such Taxes were imposed as a result of the presentation of a Note for payment Directive (where presentation or any successor version that is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day periodsubstantively comparable);
(3ix) any estatetax, inheritance, gift, sale, transfer, personal property assessment or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes governmental charge that would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notesa change in law, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposedregulation, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdictionor judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentationwhichever occurs later;
(6x) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section taxes payable under Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described aboveof such Sections), any current or future regulations or other guidance thereunder, or any agreement (including any intergovernmental agreement) entered into in connection therewith; or
(9xi) any combination of clauses items (1i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix) through and (8) x) above. In addition ; nor shall any Additional Amounts be paid to any Holder that is not the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any sole beneficial owner of the Notes, or a portion of the Indenture, any Note Guarantee or any other document referred to thereinNotes, or the receipt of any payments with respect theretothat is a fiduciary, partnership or enforcement of, any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable limited liability company to the receipt of any payments, to any such Taxes imposed in extent that a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 beneficial owner with respect to the Notes Holder, a beneficiary or any Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or settlor with respect to the Notes (fiduciary or any Note Guarantee) by a member of that partnership, limited liability company or on behalf a beneficial owner thereof would not have been entitled to the payment of such Person andthose Additional Amounts had that beneficiary, in each casesettlor, any political subdivision thereof member or thereinbeneficial owner received directly its beneficial or distributive share of the payment.
Appears in 2 contracts
Sources: Ninth Supplemental Indenture (Thermo Fisher Scientific Inc.), Eighth Supplemental Indenture (Thermo Fisher Scientific Inc.)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors Guarantor (including, in each case, any successor entity) under or with respect to the Notes or any the Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any the Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any the Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction (other than the United States) from or through which any payment is made by or on behalf of the Issuer or any the Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any the Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of the Notes after such withholding or deduction shall will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1i) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of the Notes, the exercise or enforcement of rights under such Note, the this Indenture or a the Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3iii) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4iv) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any the Note Guarantee;
(5v) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6vi) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7vii) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors Guarantor to the holder of the Notes if such holder is a fiduciary or partnership or any person Person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) viii) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9ix) any combination of clauses (1i) through (8) viii) above. In addition to the foregoing, the Issuer and the Guarantors will Guarantor shall also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the this Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1i) through (3iii) or (5v) through (9ix) above or any combination thereof).
(b) If the Issuer or any the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee in writing 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 Certificates 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of such Additional Amounts. The Trustee shall be entitled to rely absolutely absolutely, and without liability to any Person therefor, on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will shall make all withholdings and deductions (within the time period) required by law and will shall remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable lawApplicable Law. The Issuer or the relevant Guarantor will shall use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will shall furnish to the Trustee (or to a Holder of the Notes upon request), 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 Issuer or a the Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the this Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will This Section 4.10 shall survive any termination, defeasance or discharge of the this Indenture, any transfer by a holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction (other than the United States) in which any successor Person to the Issuer (or any the Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction (other than the United States) from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (Royal Caribbean Cruises LTD), Indenture (Royal Caribbean Cruises LTD)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) Issuers under or with respect to the Notes or any Note of the Guarantors with respect to any Guarantee shall of the Notes 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 of for, or on account of, such Taxes is then required by lawlaw or by the interpretation or administration thereof. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the any Issuer or any Guarantor is then incorporated or was incorporatedorganized, engaged in business, organized business for tax purposes or otherwise resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the any Issuer or any Guarantor (including, without limitation, including the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2)each, a “Tax Jurisdiction”) in respect of will at any time be required to be made from any payments made by or on behalf of the Issuers under or with respect to the Notes or any Note Guaranteeof the Guarantors under or with respect to any Guarantee of the Notes, including, without limitation, including payments of principal, redemption price, purchase price, interest or premium, the Issuer Issuers or the relevant Guarantor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes Holder after such deduction or withholding (including any such withholding or deduction shall from such Additional Amounts) will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder existence of any present or former connection between the Holder or the beneficial owner of the Notes (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder, if the relevant holder Holder is an estate, trust, nominee, partnership, limited liability company or corporation, in each case even if the payment is required to be made to such person by the laws of the Tax Jurisdiction) and the relevant Tax Jurisdiction (including being or having been a citizen or resident citizen, resident, or national of, thereof or incorporated, being or having been present or engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction therein or having or having had any other present or former connection with the relevant Tax Jurisdictiona permanent establishment therein), other than but excluding any connection arising solely merely from the acquisition, ownership or disposition holding of Notessuch Note, the exercise or enforcement of rights under such Note, Note or under a Guarantee of the Indenture or a Note Guarantee, Notes or the receipt of any payments in respect of such Note or a Note GuaranteeGuarantee of the Notes;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, salesales, excise, transfer, personal property or similar Taxes;
(4) any Taxes withheld or deducted on a payment to an individual or to the benefit of an individual that are 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, 2000 on the taxation of savings income, or any law implementing or complying with or introduced in order to conform to, such directive, or pursuant to any European Union legislation amending or replacing such directive;
(5) any Taxes imposed on or with respect to a payment made to a Holder or beneficial owner of Notes who would have been able to avoid such withholding or deduction by presenting the relevant Note to another paying agent in a member state of the European Union;
(6) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any Note GuaranteeGuarantee of the Notes;
(57) any Taxes Taxes, to the extent such Taxes would not have been are imposed or withheld but for by reason of the failure of the holder Holder or beneficial owner of the Notes, following the any Issuer’s reasonable written request addressed to the holder Holder or beneficial owner (and made at least 60 days before any such withholding a time that would enable the Holder or deduction would be imposedbeneficial owner acting reasonably to comply with that request), to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) 8) any Taxes imposed on or with respect to any payment by the Issuer Issuers or any of the Guarantors to the holder of the Notes Holder if such holder Holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments payment had such holder Holder been the sole beneficial owner of such Note;
(8) 9) any U.S. federal withholding Taxes under FATCA;
(10) any Taxes that are imposed pursuant to current Section 1471 through 1474 or withheld solely (A) by reason of the Internal Revenue Code of 1986beneficial owner owning or having owned, as amended actually or constructively (the “Code”i) or with respect to any amended or successor version Issuer that is substantively comparable and not materially treated as a corporation for U.S. federal tax purposes, 10 percent or more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code total combined voting power of all classes of stock of such Issuer entitled to vote or (ii) with respect to any Issuer that is treated as a partnership for U.S. federal tax purposes, 10 percent or more of the capital or profits interest in such Issuer, or (B) by reason of the beneficial owner being a bank that has invested in the notes as an extension of credit in the ordinary course of its trade or business;
(11) any amended taxes imposed or successor version described above)withheld in whole or in part by reason of the beneficial owner being or having been any of the following (as these terms are defined in the Code): a personal holding company; a foreign private foundation or other foreign tax-exempt organization; a passive foreign investment company; a controlled foreign corporation; or a corporation which has accumulated earnings to avoid U.S. federal income tax; or
(912) any combination of clauses items (1) through (8) 11) above. In addition to the foregoing, the Issuer .
(b) The Issuers and the Guarantors will also pay and indemnify the holder Holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxestaxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax any other reasonable expenses properly incurred related thereto) which are levied by any jurisdiction Tax Jurisdiction on the execution, delivery, issuance, issuance or registration of any of the Notes, the Indentureindenture, any Note Guarantee of the Notes or any other document or instrument referred to therein, therein (other than a transfer of the Notes after this offering) or the receipt of any payments with respect thereto, or enforcement any such taxes, charges or similar levies imposed by any jurisdiction as a result of, or in connection with, the enforcement of any of the Notes or any Note Guarantee (limited, solely in of the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof)Notes.
(bc) If the any 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 Note GuaranteeGuarantee of the Notes, the Issuer or each of the relevant GuarantorIssuers or Guarantors, as the case may be, will deliver to the Trustee and each Paying Agent 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 less than 30 days prior to that payment date, in which case the Issuer relevant Issuers or the relevant Guarantor Guarantors shall notify the Trustee and each Paying Agent 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 Certificate(s) must also set forth any other information reasonably necessary to enable the Paying Agents Agent to pay such Additional Amounts to Holders on the relevant payment date. The Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee and each Paying Agent shall be entitled to rely absolutely solely on an such Officer’s Certificate as conclusive proof that such payments are necessary.
(cd) The relevant Issuer or the relevant Guarantor, if it is the applicable withholding agent, Guarantor will make all withholdings and deductions (within the time period) required by law with respect to any payment under or relating to the Notes or any Guarantee of the Notes and will timely remit the full amount so deducted or withheld to the relevant Tax tax authority in accordance with applicable law. The relevant Issuer or the relevant Guarantor will use its reasonable efforts to obtain Tax tax receipts from each Tax tax authority evidencing the payment of any Taxes so deducted or withheld. The relevant Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request)and each Paying Agent, within 60 days a reasonable time after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax tax receipts evidencing payment by the Issuer Issuers 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 (reasonably satisfactory to the Trustee) by such entity.
(de) Whenever in the this Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note GuaranteeGuarantee of the Notes, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(ef) The preceding obligations provisions of this Section 5.20 will survive any termination, defeasance or discharge of this Indenture or any Guarantee of the IndentureNotes, any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the any Issuer (or any Guarantor) Guarantor is incorporated, engaged in business, organized business for tax purposes or otherwise resident for tax purposes, purposes or any jurisdiction from or through which such Person makes any payment is made under or with respect to on the Notes (or any Note GuaranteeGuarantee of the Notes) by and any department or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Eighth Supplemental Indenture (MPT Operating Partnership, L.P.), First Supplemental Indenture (MPT Operating Partnership, L.P.)
Additional Amounts. (a) All payments made by or on behalf the Republic in respect of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future Taxes unless the withholding taxes, duties, assessments or deduction other governmental charges of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes whatever nature imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporatedRepublic, engaged in business, organized or resident for tax purposes or any political subdivision thereof or taxing authority or agency therein or thereof having the power to tax (2) any jurisdiction from or through which any payment is made by or on behalf for purposes of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2)this paragraph, a “Tax JurisdictionRelevant Tax”) in respect ), unless the withholding or deduction of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premiumsuch Relevant Tax is required by law. In that event, the Issuer or the relevant Guarantor, as applicable, shall Republic will pay such additional amounts amounts, including but not limited to, the payment of the 4% withholding tax imposed on payments of interest to bondholders that are not residents of the Republic (the “Additional Amounts”) ), as may be necessary in order to ensure that the net amounts received and retained in respect of such payments by each beneficial owner of Notes the bondholders after such withholding or deduction shall will equal the respective amounts of principal and interest that would have been received and retained receivable in respect of such payments the Notes in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with in respect toof any Relevant Tax:
(1i) any Taxes, to the extent such Taxes would not have been imposed but for the holder by reason of a bondholder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or Note having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other some present or former connection with the relevant Tax Jurisdiction, Republic other than merely being a bondholder or beneficial owner of the Note or receiving payments of any connection arising solely from nature on the acquisition, ownership Note or disposition of Notes, the exercise or enforcement of enforcing its rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guaranteethe Note;
(2ii) imposed by reason of the failure of a bondholder or beneficial owner of a Note, or any Taxesother person through which the bondholder or beneficial owner holds a Note, to comply with any certification, identification or other reporting requirement concerning the extent nationality, residence, identity or connection with the Republic of such Taxes were bondholder or beneficial owner or other person, if compliance with the requirement is a precondition to exemption from all or any portion of such withholding or deduction, provided that (x) the Republic or the Republic’s agent has provided the trustee with at least 60 days’ prior written notice of an opportunity to satisfy such a requirement, and (y) in no event shall such holder or beneficial owner or other person’s obligation to satisfy such a requirement require such holder or beneficial owner or other person to provide any materially more onerous information, documents or other evidence than would be required to be provided had such holder or beneficial owner or other person been required to file Internal Revenue Service Forms W-8BEN, W-8BEN-E, W-8ECI, W-8EXP and/or W-8IMY; or
(iii) is imposed as a result of the presentation by reason of a bondholder or beneficial owner of a Note, or any other person through which the bondholder or beneficial owner holds a Note, having presented the Note for payment (where such presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder (date, except to the extent that the holder bondholder or beneficial owner or such other person would have been entitled to Additional Amounts had on presenting the Note been presented for payment on the last day of any date during such 30 30-day period);
. As used in this paragraph (3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdictionh), but “relevant date” in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any Notes, means the date on which payment in respect hereof first becomes due or, if the full amount of the money payable has not been received by the Issuer Trustee on or any of prior to such due date, the Guarantors date on which notice is duly given under the Indenture to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent holders that such Taxes would not monies have been imposed on such payments had such holder been so received and are available for payment. Any reference to “principal” and/or “interest” under the sole beneficial owner of such Note;
(8) Indenture also refers to any Taxes that are imposed pursuant to current Section 1471 through 1474 of additional amounts which may be payable under the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) aboveIndenture. In addition to the foregoing, the Issuer and the Guarantors The Republic will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, taxes or any other excise or property taxes, charges or similar levies (including penaltieswhich arise in the Republic or any political subdivision thereof or taxing authority thereof or therein in respect of the creation, interest and additions to tax related thereto) which are levied by any jurisdiction on the issue, execution, delivery, issuance, initial delivery or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limitedother document or instrument referred to therein. The Republic will also indemnify the bondholders from and against any stamp, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) court or (5) through (9) above documentary taxes or any combination thereof).
(b) If excise or property taxes, charges or similar levies resulting from, or required to be paid by any of them in any jurisdiction in connection with, the Issuer or any Guarantor, as enforcement of the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment obligations of the Republic under or with respect to the Notes or any Note Guarantee, other document or instrument referred to therein following the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer or the relevant Guarantor will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment occurrence of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), within 60 days after the date the payment Event of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuer or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entityDefault.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Underwriting Agreement (Republic of Chile), Underwriting Agreement (Republic of Chile)
Additional Amounts. (a) All Except as otherwise established for a series of Notes in an Officer’s Certificate or supplemental indenture pursuant to Section 2.3 hereof, all payments made of principal and interest by or on behalf the Issuer in respect of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall be made free and clear of and without withholding or deduction for, or on account of, any present or future Taxes taxes, duties, assessments or other governmental charges of whatever nature, unless the such withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor such withholding or any other applicable withholding agent deduction is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or any authority therein or (2) any jurisdiction from or through which any payment is made having power to tax, with respect to payments of principal and interest by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or the Notes, the Issuer shall pay to the Holder of each Note who is a United States Alien such additional amounts (all such amounts being referred to herein with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order so that the net amounts received and retained in respect of such payments by each beneficial owner of Notes that Holder after such withholding or deduction shall equal the respective amounts that which would have been received and retained receivable in respect of such payments Note in the absence of such withholding or deduction; provided, howeverprovided that, that no such Additional Amounts shall be payable with in relation to any such withholding or deduction in respect toof any Note:
(1a) in respect of any Taxestax, to the extent such Taxes duty, assessment or governmental charge that would not have been so imposed but for 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 holder of a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation) and the United States (other than a connection arising solely from the ownership of the Notes or the receipt of payments or enforcement of rights in respect thereof), including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or holder of a power) being considered as:
(A) being or having been present or engaged in a trade or business in the United States or having or having had a permanent establishment therein; or
(B) having a current or former relationship with the United States, including a relationship as a citizen or resident or being treated as a resident thereof;
(b) in respect of any tax, duty, assessment or governmental charge that would not have been so imposed but for the Holder or beneficial owner of the Notes Note (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor holder of a power over, the relevant holdersuch Holder or beneficial owner, if the relevant holder such Holder or beneficial owner is an estate, trust, nominee, partnership, limited liability company partnership or corporation) being or having been treated as:
(A) a citizen or resident or national ofcontrolled foreign corporation, or incorporateda passive foreign investment company, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture personal holding company or a Note Guarantee, or the receipt of payments in respect of such Note corporation that has accumulated earnings to avoid U.S. federal income tax or a Note Guaranteeprivate foundation or other tax-exempt organization; or
(B) an actual or a constructive “10-percent shareholder” of the Issuer within the meaning of Section 871(h)(3) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”); or
(C) a bank that is described in Section 881(c)(3)(A) of the Code;
(2c) to any Taxes, to the extent such Taxes were imposed as a result of the presentation Holder or beneficial owner of a Note for payment (where presentation who is required) more than 30 days after the relevant payment is first made available for payment to the holder (except a fiduciary or partnership to the extent that the holder a beneficiary or settlor with respect to such fiduciary or member of such partnership would not have been entitled to the payment of Additional Amounts had such beneficiary, settlor or member been the Note been presented on the last day Holder or beneficial owner of such 30 day period)Note;
(3d) in respect of any estatetax, inheritanceduty, gift, sale, transfer, personal property assessment or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes governmental charge that would not have been imposed or withheld but for the failure of the holder Holder or beneficial owner of the NotesNote to comply with applicable certification, following identification or information reporting requirements under United States income tax laws concerning the Issuer’s reasonable written request addressed nationality, residence, identity or connection (or lack of connection) with the United States of the Holder or beneficial owner, if such compliance is required by United States income tax laws as a precondition to relief or exemption from such tax, duty, assessment or governmental charge; or
(e) in any case that is a combination of any of (a) through (d) above, provided, further, that no such Additional Amounts shall be payable with respect to any Note presented for payment more than 30 days after the Relevant Date (as defined below) except to the holder at least 60 days before extent that the Holder thereof would have been entitled to such Additional Amounts on presenting the same for payment on the last day of such 30-day period assuming that day to have been a Business Day. All payments of principal and interest by the Guarantor in respect of the Guarantee shall 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, unless such withholding or deduction is required by law. If any such withholding or deduction is imposed or levied by or on behalf of Japan, or any political subdivision thereof or any authority therein having power to tax, with respect to payments of principal and interest by the Guarantor in respect of the Notes or the Guarantee, the Guarantor shall pay to the Holder of each Note such additional amounts (all such amounts being referred to herein with respect to the Guarantor as “Additional Amounts”) as may be necessary so that the net amounts received by that Holder after such withholding or deduction shall equal the respective amounts which would have been receivable in respect of such Note in the absence of such withholding or deduction; provided that, no such Additional Amounts shall be imposedpayable in relation to any such withholding or deduction in respect of any Note or the Guarantee:
(a) in respect of any tax, to comply with duty, assessment or governmental charge that would not have been so imposed but for the existence of any certificationpresent or former connection between the Holder or beneficial owner of such Note or the Guarantee (or between a fiduciary, identificationsettlor, information beneficiary, member or other reporting requirementsshareholder of, whether required by statute, treaty, regulation or administrative practice holder of a Tax Jurisdictionpower over, as such Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation) and Japan (other than a precondition to exemption fromconnection arising solely from the ownership of the Notes or the receipt of payments or enforcement of rights in respect thereof), or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder such Holder or beneficial owner is not (or such fiduciary, settlor, beneficiary, member, shareholder or holder of a power) being considered as:
(A) being or having been present or engaged in a trade or business in Japan or having or having had a permanent establishment therein; or
(B) having a current or former relationship with Japan, including a relationship as a citizen or resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentationbeing treated as a resident thereof;
(6b) in respect of any Taxes tax, duty, assessment or governmental charge that would not have been imposed in connection with a Note presented or withheld but for payment (where presentation is permitted or required for payment) by or on behalf the failure of a holder the Holder or beneficial owner of the Notes Note or the Guarantee to comply with applicable certification, identification or information reporting requirements under Japanese income tax laws concerning the nationality, residence, identity or connection (or lack of connection) with Japan of the Holder or beneficial owner, if such compliance is required by Japanese income tax laws as a precondition to relief or exemption from such tax, duty, assessment or governmental charge;
(c) presented for payment more than 30 days after the Relevant Date (as defined below) except to the extent such Taxes could that the Holder thereof would have been avoided by entitled to such Additional Amounts on presenting the relevant Note to, or otherwise accepting same for payment from, another Paying Agenton the last day of such 30-day period assuming that day to have been a Business Day;
(7d) any Taxes imposed on or with respect to any payment by Holder or beneficial owner of a Note or the Issuer or any of the Guarantors to the holder of the Notes if such holder Guarantee who is a fiduciary or partnership to the extent that a beneficiary or any person other than settlor with respect to such fiduciary or member of such partnership would not have been entitled to the sole payment of Additional Amounts had such beneficiary, settlor or member been the Holder or beneficial owner of such payment to Note or the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;Guarantee; or
(8) e) in any Taxes case that are is a combination of any of (a) through (d) above. In addition, no Additional Amounts will be payable by the Issuer or the Guarantor for or on account of any deduction or withholding imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereofFATCA, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant with respect to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary TaxesFATCA, or any law, regulation or other excise official guidance enacted or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by issued in any jurisdiction on the execution, delivery, issuanceimplementing, or registration relating to, FATCA, similar legislation under the laws of any other jurisdiction, or any such intergovernmental agreement. As used herein, the “Relevant Date” means the date on which any payment in respect of a Note first becomes due, except that, if the full amount of the Notesmoneys payable has not been duly received by the Trustee on or prior to such due date, it means the date on which, the Indenturefull amount of such moneys having been so received, any Note Guarantee or any other document referred notice to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable that effect is duly given to the receipt of any payments, to any such Taxes imposed Holders in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts accordance with respect to any payment under or with respect to the Notes or any Note Guarantee, the this Indenture. The Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee on make any required withholding or deduction of taxes, duties, assessments or governmental charges imposed by 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 Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law Tax Jurisdiction and will remit the full amount withheld or deducted or withheld to the relevant applicable Tax authority Jurisdiction in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 Issuer or a Guarantor, as the case may be, or if, notwithstanding such entity’s will use reasonable efforts to obtain receiptscertified copies of tax receipts evidencing the payment of any tax, receipts duty, assessment or other governmental charge so withheld or deducted from the Tax Jurisdiction imposing such tax, duty, assessment or other governmental charges, and if certified copies are not obtainedavailable, the Issuer or the Guarantor, as the case may be, will use reasonable efforts to obtain other evidence of payments (reasonably satisfactory to the Trustee. The Trustee shall make such certified copies or other evidence available to the Noteholders or the beneficial owners of the Notes upon reasonable written request to the Trustee. At least 10 days prior to the first interest payment date on the Notes on which the Issuer or the Guarantor, as the case may be, would be required to pay Additional Amounts, and at least 10 days prior to each principal or subsequent interest payment date with respect to such Notes if there has been any change with respect to the matters set forth in the previously provided Officer’s Certificate or Guarantor Officer’s Certificate, the Issuer or the Guarantor, as the case may be, will furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officer’s Certificate or Guarantor Officer’s Certificate instructing the Trustee and such Paying Agent as to the amount required to be deducted or withheld on such payments to the Holders of Notes and indicating that the Issuer or the Guarantor, as the case may be, will pay to the Trustee or such Paying Agent the Additional Amounts required by this Section 9.5. The obligation to pay Additional Amounts shall not apply to (i) any estate, inheritance, gift, excise, sales, transfer, personal property or any similar tax, duty, assessment, fee or other governmental charge or (ii) any tax, duty, assessment, fee or other governmental charge that is payable otherwise than by such entity.
(d) deduction or withholding from payments of principal of or interest on the Notes or the Guarantee; provided that, except as otherwise set forth in the Notes and this Indenture, the Issuer and the Guarantor, as the case may be, shall pay all stamp, court or documentary taxes or any other excise, property or similar taxes, charges or levies and other duties, if any, which may be imposed by a Tax Jurisdiction, with respect to this Indenture or as a consequence of the issuance, execution, delivery or registration of the Notes and the Guarantee. Whenever in this Indenture, the Indenture Notes or this Note the Guarantee there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable underof, or with interest on, or in respect toof, any of Note or the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 9.5, to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will survive any terminationthereof pursuant to the provisions of this Section 9.5, defeasance or discharge and express mention of the Indenture, payment of Additional Amounts (if applicable) in any transfer by a holder provisions hereof or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction thereof shall not be construed as excluding Additional Amounts in which any successor Person to the Issuer (other provisions hereof or any Guarantor) thereof where such express mention is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or thereinnot made.
Appears in 2 contracts
Sources: Indenture (Takeda Pharmaceutical Co LTD), Indenture (Takeda U.S. Financing Inc.)
Additional Amounts. (a) All payments made by or on behalf Unless otherwise specified in any Board Resolution of the Issuer Company or the Guarantor establishing the terms of Securities of a series or the Guarantee relating thereto in accordance with Section 2.01, if any of the Guarantors (including, in each case, any successor entity) under deduction or with respect to the Notes or any Note Guarantee shall be made free and clear of and without withholding or deduction for, or on account of, for any present or future Taxes unless taxes or other governmental charges of the withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor jurisdiction (or any other applicable withholding agent is required by law to withhold political subdivision or deduct any amount for, taxing authority thereof or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United Statestherein) in which the Issuer Guarantor is resident, shall at any time be required by such jurisdiction (or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any such political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”taxing authority) in respect of any payments amounts to be paid by the Guarantor under or with respect the Guarantee, the Guarantor will pay to the Notes or any Note Guarantee, including, without limitation, payments Holder of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay a Security of such series such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect paid to such Holder of such payments by each beneficial owner of Notes Security who, with respect to any such tax or other governmental charge, is not resident in such jurisdiction, after such withholding deduction or deduction withholding, shall equal be not less than the respective amounts that would have been received and retained specified in respect of such payments in the absence of Security to which such withholding or deductionHolder is entitled (“Additional Amounts”); provided, however, that no the Guarantor shall not be required to make any payment of Additional Amounts shall be payable with respect tofor or on account of:
(1a) any Taxes, to such tax or governmental charge imposed by the extent United States or any political subdivision or taxing authority thereof or therein;
(b) any such Taxes tax or governmental charge which would not have been imposed but for the holder existence of any present or the beneficial owner of the Notes former connection between such Holder (or between a fiduciary, settlorsettler, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, trust, nominee, partnership, limited liability company partnership or corporation) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settler, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or national of, or incorporated, engaged in a trade or business in, being or having been physically present or engaged in trade or having a permanent establishment in, the relevant Tax Jurisdiction business therein or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guaranteepermanent establishment therein;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (Shell Finance US Inc.), Indenture (Shell International Finance B.V.)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Class B Notes or any Note Guarantee thereof shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Class B Notes or any Note GuaranteeGuarantee thereof, including, without limitation, payments of principal, redemption priceRedemption Price, purchase price, interest interest, duration fees or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes Holder after such withholding or deduction shall will equal the respective amounts that would have been received and retained by each Holder in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Second Supplemental Indenture (Norwegian Cruise Line Holdings Ltd.), Second Supplemental Indenture (NCL CORP Ltd.)
Additional Amounts. (a) All payments made Unless otherwise specified in any Board Resolution or Officers’ Certificate, as applicable, establishing the terms of Securities of a series in accordance with Section 2.07, all amounts of principal, and interest, if any, on any series of Securities will be paid by or on behalf of the Issuer without deducting or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall be made free and clear of and without withholding or deduction for, or on account of, any and all present and future taxes, levies, duties, assessments, imposts or future Taxes unless the withholding other governmental charges of whatsoever imposed, assessed, levied or deduction of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied collected by or on behalf for the account of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes Kingdom or any political subdivision or taxing authority thereof or therein or (2) if deduction or withholding of any jurisdiction from such taxes, levies, imposts or through which other governmental charges shall at any payment is made time be required by applicable law or on behalf regulation of the Issuer United Kingdom or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) such subdivision or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premiumauthority, the Issuer or the relevant Guarantor, as applicable, shall will (subject to what follows) pay such additional amounts (the “Additional Amounts”) in respect of principal, interest, if any, and sinking fund payments as may be necessary in order that the net amounts received and retained in respect by the Holders of such payments by each beneficial owner of Notes the Securities or the Trustee under this Indenture, as the case may be, pursuant to the Securities, after such withholding deduction or deduction withholding, shall equal the respective amounts that would have been received of principal, interest, if any, and retained in respect of such payments sinking fund payments, as specified in the absence of Securities, to which such Holders or the Trustee would be entitled had such deduction or withholding not been so imposed, assessed, levied or deductioncollected; provided, however, that no Additional Amounts the foregoing shall be payable with respect to:
not apply to (1i) any Taxespresent or future tax, to the extent such Taxes levy, impost or other governmental charge which would not have been imposed so imposed, assessed, levied or collected but for the holder or fact that the beneficial owner Holder of the Notes relevant Security (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, trust, nominee, partnership, limited liability company partnership or corporation) being is or has been a domiciliary, national or resident of, or engaging or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, or maintaining or having maintained a permanent establishment or being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction United Kingdom or any political subdivision or taxing authority thereof or therein or otherwise having or having had any other present or former some connection with the relevant Tax Jurisdiction, United Kingdom or any political subdivision or taxing authority thereof or therein other than any connection arising solely from the acquisition, holding or ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note GuaranteeSecurity, or the receipt collection of payments in respect of such Note principal of, and interest, if any, on, or the enforcement of, a Note Guarantee;
Security, (2ii) any Taxespresent or future tax, to levy, impost or other governmental charge which would not have been so imposed, assessed, levied or collected but for the extent such Taxes were imposed as a result of the presentation of a Note for payment (fact that, where presentation is required) , the relevant Security was presented more than 30 days after the relevant date on which such payment became due or was provided for, whichever is first made available for payment to the holder later, (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3iii) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
tax, levy, impost or other governmental charge, (4iv) any Taxes present or future tax, levy, impost or other governmental charge which is payable other otherwise than by deduction or withholding from payments underon or in respect of the relevant Security, or with respect to, the Notes or any Note Guarantee;
(5v) any Taxes to the extent such Taxes present or future tax, levy, impost or other governmental charge which would not have been imposed 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 Holder or beneficial owner of the Notesrelevant Security, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether if compliance is required by treaty or by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, the United Kingdom or any such political subdivision or taxing authority thereof or therein as a precondition condition to relief or exemption fromfrom such tax, levy, impost or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction other governmental charge (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder which such Holder or beneficial owner is legally eligible 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 such certification or documentation;
(6vii) any Taxes present or future tax, levy, impost or other governmental charge imposed by the United States of America or any political subdivision or taxing authority thereof or therein, (viii) any present or future tax, levy, impost or other governmental charge imposed, assessed, levied or collected in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf respect of a holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on under or with respect to a Security to any payment by the Issuer or any Holder of the Guarantors to the holder of the Notes if such holder relevant Security that is a fiduciary or fiduciary, partnership or any a person other than the sole beneficial owner of such payment or Security to the extent that such Taxes the beneficiary or settlor with respect to the fiduciary, member of that partnership or beneficial owner would not have been imposed on entitled to the additional amounts or would not have been subject to such payments tax, levy, impost or charge, had such holder that beneficiary, settlor, member or beneficial owner been the sole beneficial owner actual Holder of such Note;
Security; or (8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9ix) any combination of clauses items (1i) through (8) viii) above. In addition At least 30 days prior to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) each date on which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that debt securities is at least 30 days prior to the date of that payment due and payable (unless the such obligation to pay Additional Amounts additional amounts arises after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through on which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf debt securities is due and payable, in 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 Person and, in each case, any political subdivision thereof or thereindebt securities on the payment date.
Appears in 2 contracts
Sources: Indenture (Smith & Nephew PLC), Indenture (Smith & Nephew PLC)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) ), or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Additional Amounts. (a) All payments made by or on behalf of the Issuers or a Successor Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes (whether or not in the form of Definitive Notes) or any Note of the Guarantors on their Guarantee (including in each case any Successor Person) shall be made free and clear of and without withholding or deduction for, or on account of, any present or future Taxes taxes, unless the withholding or deduction of such Taxes taxes is then required by law. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer Issuers or any Guarantor (including in either case any Successor Issuer or Successor Person, as applicable) is or was incorporated, engaged in businessorganized, organized carrying on a business through a branch, agency or permanent establishment or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from by or through which any payment is made by or on behalf of the Issuer Issuers or any Guarantor (includingincluding in either case any Successor Issuer or Successor Person, without limitation, as applicable) under or with respect to the jurisdiction of any Paying Agent) Notes or Guarantees or any political subdivision thereof or therein (each of (1) and (2)each, a “Tax Jurisdiction”) in respect of will at any time be required to be made from any payments made by or on behalf of the Issuers or Successor Issuers under or with respect to the Notes or any Note of the Guarantors or Successor Persons with respect to any Guarantee, including, without limitation, including payments of principal, redemption price, purchase price, interest or premium, the Issuer Issuers or the relevant GuarantorGuarantor (including in either case any Successor Issuer or Successor Person), as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained by each holder in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall (including any such deduction or withholding from such Additional Amounts) will equal the respective amounts that would have been received and retained by each holder in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
(1) any Taxes, taxes to the extent such Taxes taxes would not have been imposed but for the holder Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder, if the relevant holder Holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, present, or engaged in a trade or business in, being or having been physically present in or having had a permanent establishment in, the relevant Tax Jurisdiction in which such taxes are imposed or having or having had any other (actual or deemed) present or former connection with the relevant Tax Jurisdiction, Jurisdiction other than any connection arising solely from by the acquisitionmere acquisition or holding of, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guaranteeunder, or the receipt of payments in respect of such Note of, the Notes, this Indenture or a Note any Guarantee;
(2) any Taxestaxes to the extent such taxes are imposed or withheld as a result of the failure of the Holder or beneficial owner of the Notes to comply with any written request, made at least 30 days before any such withholding or deduction would be payable, by the Issuers or any of the Guarantors (including in either case any Successor Issuer or Successor Person, as applicable) to provide timely and accurate information concerning the nationality, residence or identity of such Holder or beneficial owner or 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 statute, treaty, regulation or administrative practice of the relevant Tax Jurisdiction as a precondition to exemption from all or part of, or reduction in the rate of deduction or withholding of, such taxes (in each case, to the extent such Taxes were Holder or beneficial owner is legally entitled to do so);
(3) any taxes imposed or withheld as a result of the presentation of a any Note for payment (where Notes are in the form of Definitive Notes and presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder (except to the extent that the holder Holder or beneficial owner would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(34) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction tax, assessment or withholding from payments under, or with respect to, excise taxes imposed on the Notes or any Note Guaranteetransfer of Notes;
(5) any Taxes taxes withheld, deducted or imposed on a payment to the extent such Taxes would not have been imposed or withheld but for the failure an individual and which are required to be made pursuant to Luxembourg Relibi law of the holder or beneficial owner of the NotesDecember 23, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction2005, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentationamended;
(6) any Taxes imposed taxes payable otherwise than by deduction or withholding on or in connection with a respect of any Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying AgentGuarantee;
(7) any Taxes taxes that were imposed on or with respect to any payment by the Issuer or on a Note to any of the Guarantors to the holder of the Notes if such holder Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes no Additional Amounts would not have been imposed on such payments payable had such holder the beneficial owner of the applicable Notes been the sole beneficial owner Holder of such Note;
(8) any Taxes taxes that are imposed or withheld pursuant to current Section Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) ), as of the issue date (or any amended or successor version that is substantively comparable and not materially more onerous to comply withof such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing with respect to the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above)Code; or
(9) any combination of clauses items (1) through (8) above. .
(b) In addition to the foregoing, the Issuer Issuers and the Guarantors (including in either case any Successor Issuer or Successor Person, as applicable) will also pay each Holder and indemnify the holder beneficial owner for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxestaxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) or taxes which are levied by any jurisdiction Tax Jurisdiction on the execution, delivery, issuanceissuance or registration of, or registration of by any Tax Jurisdiction on the enforcement of, any of the Notes, the this Indenture, any Note Guarantee Guarantee, or any other document or instrument referred to thereintherein (other than a transfer of the Notes that is not part of the initial resale by the initial purchasers), or the receipt of any payments with respect thereto, or enforcement of, any of to the Notes or any Note Guarantee the Guarantees (limited, solely in the case of Taxes taxes attributable to the receipt of any payments, to any such Taxes taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (35), (7) or (5) through (9) 8) above or any combination thereofthereof and, in each case, excluding United Kingdom stamp duty, save to the extent that such stamp duty is paid in order to “▇▇▇▇▇” a charge to stamp duty reserve tax which has arisen or will otherwise arise).
(bc) The Issuers and the Guarantors will however not pay and indemnify any Holder or beneficial owner for any Luxembourg registration duties (droits d’enregistrement) payable in the case of registration by any Holder or beneficial owner of the Notes, this Indenture, any Guarantee, or any other document or instrument referred to therein in Luxembourg when such registration is not required to enforce the rights of a Holder or a beneficial owner under such documents.
(d) If the Issuer Issuers 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 Note Guarantee, the Issuer Issuers or the relevant Guarantor, as the case may be, will deliver to the Trustee and the paying agent on a date that is at least 30 10 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 relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and payable, the amount estimated to be so payable. The Officer’s Certificate must also set forth any payable and such other information reasonably necessary to enable the Paying Agents paying agent to pay Additional Amounts to Holders on the relevant payment date. The Issuer or Trustee and the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee paying agent shall be entitled to rely absolutely and solely on an such Officer’s Certificate as conclusive proof that such payments are necessary.
(ce) The Issuer Issuers or the relevant Guarantor, if it is the applicable withholding agent, Guarantor will make all withholdings and deductions (within the time period) as required by law and will remit the full amount deducted or withheld to the tax authority in the relevant Tax authority Taxing Jurisdiction in accordance with applicable law. The Issuer Issuers or the relevant Guarantor will use its reasonable efforts to obtain Tax tax receipts from each Tax tax authority evidencing the payment of any Taxes taxes so deducted or withheldwithheld from each relevant Taxing Jurisdiction. The Issuer Issuers or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request)Trustee, within 60 days a reasonable time after the date the payment of any Taxes taxes so deducted or withheld is made, certified copies of Tax tax receipts evidencing payment by the Issuer Issuers 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 payment (reasonably satisfactory to the Trustee) by such entity.
(df) Whenever in the this Indenture or this Note in the “Description of Notes” in the Offering Memorandum there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note GuaranteeGuarantees, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(eg) The preceding above obligations will survive any termination, defeasance or discharge of the this Indenture, any transfer by a holder Holder or beneficial owner of its Notes, Notes and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (Issuers or any Guarantor) Guarantor is incorporated, organized, engaged in businessbusiness through a branch, organized agency or permanent establishment or otherwise 127 resident for tax purposes, purposes or any jurisdiction from or through which payment is any payments made by or on behalf of the Issuers or any Guarantors (including in either case any Successor Issuer or Successor Person, as applicable) under or with respect to the Notes (or any Note Guarantee) by Guarantee is made and any department or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Additional Amounts. (ai) All payments made by or on behalf the Republic in respect of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future Taxes unless the withholding taxes, duties, assessments or deduction other governmental charges of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes whatever nature imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporatedRepublic, engaged in business, organized or resident for tax purposes or any political subdivision thereof or taxing authority or agency therein or thereof having the power to tax (2) any jurisdiction from or through which any payment is made by or on behalf for purposes of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2)this paragraph, a “Tax JurisdictionRelevant Tax”) in respect ), unless the withholding or deduction of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premiumsuch Relevant Tax is required by law. In that event, the Issuer or the relevant Guarantor, as applicable, shall Republic will pay such additional amounts amounts, including but not limited to, the payment of the 4% withholding tax imposed on payments of interest to bondholders that are not residents of the Republic (the “Additional Amounts”) ), as may be necessary in order to ensure that the net amounts received and retained in respect of such payments by each beneficial owner of Notes the bondholders after such withholding or deduction shall will equal the respective amounts of principal and interest that would have been received and retained receivable in respect of such payments the Notes in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with in respect toof any Relevant Tax:
(1A) any Taxes, to the extent such Taxes would not have been imposed but for the holder by reason of a bondholder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or Note having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other some present or former connection with the relevant Tax Jurisdiction, Republic other than merely being a bondholder or beneficial owner of the Note or receiving payments of any connection arising solely from nature on the acquisition, ownership Note or disposition of Notes, the exercise or enforcement of enforcing its rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guaranteethe Note;
(2B) imposed by reason of the failure of a bondholder or beneficial owner of a Note, or any Taxesother person through which the bondholder or beneficial owner holds a Note, to comply with any certification, identification or other reporting requirement concerning the extent nationality, residence, identity or connection with the Republic of such Taxes were bondholder or beneficial owner or other person, if compliance with the requirement is a precondition to exemption from all or any portion of such withholding or deduction, provided that (x) the Republic or the Republic’s agent has provided the trustee with at least 60 days’ prior written notice of an opportunity to satisfy such a requirement, and (y) in no event shall such holder or beneficial owner or other person’s obligation to satisfy such a requirement require such holder or beneficial owner or other person to provide any materially more onerous information, documents or other evidence than would be required to be provided had such holder or beneficial owner or other person been required to file Internal Revenue Service Forms W-8BEN, W-8BEN-E, W-8ECI, W-8EXP and/or W-8IMY; or
(C) is imposed as a result of the presentation by reason of a bondholder or beneficial owner of a Note, or any other person through which the bondholder or beneficial owner holds a Note, having presented the Note for payment (where such presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder (date, except to the extent that the holder bondholder or beneficial owner or such other person would have been entitled to Additional Amounts had on presenting the Note been presented for payment on the last day of any date during such 30 30-day period);
. As used in this paragraph (3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdictionh), but “relevant date” in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any Notes, means the date on which payment in respect hereof first becomes due or, if the full amount of the money payable has not been received by the Issuer Trustee on or any of prior to such due date, the Guarantors date on which notice is duly given under the Indenture to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent holders that such Taxes would not monies have been imposed on such payments had such holder been so received and are available for payment. Any reference to “principal” and/or “interest” under the sole beneficial owner of such Note;
(8) Indenture also refers to any Taxes that are imposed pursuant to current Section 1471 through 1474 of additional amounts which may be payable under the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) aboveIndenture. In addition to the foregoing, the Issuer and the Guarantors The Republic will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, taxes or any other excise or property taxes, charges or similar levies (including penaltieswhich arise in the Republic or any political subdivision thereof or taxing authority thereof or therein in respect of the creation, interest and additions to tax related thereto) which are levied by any jurisdiction on the issue, execution, delivery, issuance, initial delivery or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limitedother document or instrument referred to therein. The Republic will also indemnify the bondholders from and against any stamp, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) court or (5) through (9) above documentary taxes or any combination thereof).
(b) If excise or property taxes, charges or similar levies resulting from, or required to be paid by any of them in any jurisdiction in connection with, the Issuer or any Guarantor, as enforcement of the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment obligations of the Republic under or with respect to the Notes or any Note Guarantee, other document or instrument referred to therein following the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date occurrence 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 relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment Event of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessaryDefault.
(cii) The Issuer or From the relevant Guarantor, if it is date hereof through the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), within 60 period ending 30 days after the date Closing Date, the payment Republic will ensure that no other dollar-denominated debt securities of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuer or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtainedRepublic, other evidence than debt securities with a maturity of payments (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever one year or less, are placed or sold in the Indenture international capital markets, directly or this Note there is mentionedindirectly on its behalf, in any contextmanner which might, in the payment of amounts based upon the principal amount reasonable opinion of the Notes or of principalUnderwriters, interest or of any other amount payable under, or with respect to, any have a detrimental effect on the successful offering and distribution of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 unless the Underwriters otherwise agree in which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or thereinwriting.
Appears in 2 contracts
Sources: Underwriting Agreement (Republic of Chile), Underwriting Agreement (Republic of Chile)
Additional Amounts. (a) All payments made by or on behalf Unless otherwise specified in any Board Resolution of the Issuer Company or the Guarantor establishing the terms of Securities of a series or the Guarantee relating thereto in accordance with Section 2.01, if any of the Guarantors (including, in each case, any successor entity) under deduction or with respect to the Notes or any Note Guarantee shall be made free and clear of and without withholding or deduction for, or on account of, for any present or future Taxes unless taxes or other governmental charges of the withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor jurisdiction (or any other applicable withholding agent is required by law to withhold political subdivision or deduct any amount for, taxing authority thereof or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United Statestherein) in which the Issuer Guarantor is resident, shall at any time be required by such jurisdiction (or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any such political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”taxing authority) in respect of any payments amounts to be paid by the Guarantor under or with respect the Guarantee, the Guarantor will pay to the Notes or any Note Guarantee, including, without limitation, payments Holder of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay a Security of such series such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect paid to such Holder of such payments by each beneficial owner of Notes Security who, with respect to any such tax or other governmental charge, is not resident in such jurisdiction, after such withholding deduction or deduction withholding, shall equal be not less than the respective amounts that would have been received and retained specified in respect of such payments in the absence of Security to which such withholding or deductionHolder is entitled (“Additional Amounts”); provided, however, that no the Guarantor shall not be required to make any payment of Additional Amounts shall be payable with respect tofor or on account of:
(1a) any Taxes, to such tax or governmental charge imposed by the extent United States or any political subdivision or taxing authority thereof or therein;
(b) any such Taxes tax or governmental charge which would not have been imposed but for the holder existence of any present or the beneficial owner of the Notes former connection between such Holder (or between a fiduciary, settlorsettler, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, trust, nominee, partnership, limited liability company partnership or corporation) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settler, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or national of, or incorporated, engaged in a trade or business in, being or having been physically present or engaged in trade or having a permanent establishment in, the relevant Tax Jurisdiction business therein or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guaranteepermanent establishment therein;
(2c) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by of the Issuer principal of, or any interest on, any Security of the Guarantors such series to the holder of the Notes if such holder any Holder who is a fiduciary or fiduciary, partnership or any person other than entity that is not the sole beneficial owner of such payment 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 for tax purposes of a beneficiary or settlor with respect to such fiduciary, member of such partnership or other entity, or a beneficial owner who would not have been entitled to such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder 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 extent interest that the ultimate beneficial owners described above own in such Taxes Holder;
(d) any such tax or governmental charge which would not have been imposed on such payments had such holder been but for the sole beneficial owner presentation of a Security of such Note;
series (8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”where presentation is required) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least more than 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 relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), within 60 days after the date on which such payment became due and payable or the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuer or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through date on which payment thereof is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person andduly provided for, in each case, any political subdivision thereof or therein.whichever occurs later;
Appears in 2 contracts
Sources: Indenture (Shell PLC), Indenture (Shell International Finance B.V.)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes Holder after such withholding or deduction shall will equal the respective amounts that would have been received and retained by each Holder in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder or beneficial owner, if the relevant holder Holder or beneficial owner is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder Holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder Holder at least 60 30 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder Holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder Holder of the Notes if such holder Holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder Holder been the sole beneficial owner of such Note;
(8) any Taxes imposed by the United States, any state thereof or the District of Columbia, or any subdivision thereof or territory thereof, including any U.S. federal withholding taxes and any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any paymentspayments or that are imposed on or result from a sale or other transfer or disposition of a Note by a Holder or a beneficial owner, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof), save in each case for any such taxes, charges or levies which arise or are increased as a result of any document effecting the registration, issue or delivery of any of the notes either being signed or executed in the United Kingdom or being brought into the United Kingdom.
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder of this Note upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (Norwegian Cruise Line Holdings Ltd.), Indenture (Norwegian Cruise Line Holdings Ltd.)
Additional Amounts. (a) The Company will duly and punctually pay the principal of (and premium, if any) and interest on the Notes in accordance with the terms of the Notes and the Indenture.
(b) All payments made by or the Company on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall will be made free and clear of and without withholding or deduction for, or on account of, any present or future Taxes taxes, duties, assessments or governmental charges of whatever nature unless the such withholding or deduction of such Taxes is then required by law. If The Company hereby further agrees, subject to the Issuerlimitations and exceptions set forth below, that if any Guarantor deduction or withholding for any present or future taxes, duties, assessments or other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf governmental charges of (1) any the jurisdiction (other than the United Statesor any political subdivision or taxing authority thereof or therein) in which the Issuer or any Guarantor Company is or was incorporated, engaged in business, organized or otherwise considered, resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment on the Notes is made by or on behalf of the Issuer or any Guarantor (includingmade, without limitation, the jurisdiction of any Paying Agent) or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1) and (2), a “Tax Relevant Taxing Jurisdiction”), shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any payments amounts to be paid by the Company under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premiumNotes, the Issuer or the relevant GuarantorCompany will pay to each holder of a Note as additional interest, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts paid to such holder of such Note, after such deduction or withholding, shall be equal to the amount such holder would have received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall equal the respective amounts that would have been received and retained in respect of such payments payment in the absence of such withholding or deduction; provided, however, that no the Company shall not be required to make any payment of Additional Amounts shall be payable with respect tofor or on account of:
(1i) any TaxesAny tax, to the extent such Taxes assessment or other governmental charge which would not have been imposed but for (a) the existence of any present or former connection between such holder or the beneficial owner of the Notes (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant such holder, if the relevant such holder is an estate, trust, nominee, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being or having been a citizen or resident or national of, or incorporated, engaged in carrying on a trade business or business in, being or having been physically present in or having maintaining a permanent establishment in, in the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Relevant Taxing Jurisdiction, ) other than any connection arising solely from by the acquisition, mere ownership or disposition holding of Notes, the exercise such Note or enforcement of rights under such Note, the Indenture or a Note Guarantee, thereunder or the receipt of payments in respect of such Note thereof or a Note Guarantee;
(2b) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) for payment on a date more than 30 days after (x) the relevant date on which such payment became due and payable or (y) the date on which payment thereof is first made available for payment to the holder duly provided for, whichever occurs later (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented on the last day of during such 30 day period);
(3ii) any Any estate, inheritance, gift, sale, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(4iii) any Taxes Any tax, assessment or other governmental charge which is payable other otherwise than by deduction or withholding from payments underpayment of (or in respect of) principal of, premium, if any, or with respect toany interest on, the Notes or any Note GuaranteeNotes;
(5iv) any Taxes to the extent such Taxes would not have been Any tax, assessment or other governmental charge that is imposed or withheld but for by reason of the failure to comply by the holder or the beneficial owner of the Note with a request of the Company addressed to the holder (a) to provide information, documents or other evidence concerning the nationality, residence or identity of the holder or such beneficial owner or (b) 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 Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before Company) or satisfy any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether which, in the case of (a) or (b), is required or imposed by statutea statue, treaty, regulation or administrative practice of a Tax Jurisdiction, the taxing jurisdiction as a precondition to exemption fromfrom all or part of such tax, assessment or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentationother governmental charge;
(6v) any Taxes withholding or deduction imposed in connection with on a Note presented for payment to an individual and required to be made pursuant to the European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council Meeting of 26-27 November 2000 on the taxation of savings income, or any law implementing or complying with, or introduced to conform to, these Directives;
(vi) any tax, assessment or other governmental charge that could have been avoided by the presentation (where presentation is permitted or required for paymentrequired) by or on behalf of a holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, to another Paying Agent;Agent in a member state of the European Union; or
(7vii) any Taxes imposed on or combination of items (i), (ii), (iii), (iv), (v) and (vi) above; nor shall Additional Amounts be paid with respect to any payment by of the Issuer principal of, or any of the Guarantors premium or interest on, any Note to the any holder of the Notes if such holder who is a fiduciary or partnership or any person limited liability company or other than the sole beneficial owner of such payment to the extent that such Taxes payment would be required by the laws of the Relevant Taxing Jurisdiction to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership, limited liability company or beneficial owner who would not have been imposed on entitled to such payments Additional Amounts had such holder it been the sole beneficial owner holder of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(bc) If At least ten days prior to each date on which any payment under or with respect to the Issuer Notes is due and payable (unless such obligation to pay Additional Amounts arises shortly before or any Guarantorafter the tenth day prior to such date, as in which case it shall be promptly thereafter), if the case may be, becomes aware that it Company will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guaranteesuch payment, the Issuer or the relevant Guarantor, as the case may be, Company 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and the amount estimated to be so payable. The Officer’s Certificate must also will set forth any such other information reasonably necessary to enable the Paying Agents Trustee to pay such Additional Amounts to Holders holders on the relevant payment date. Each such Officer’s Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters.
(d) If the Company conducts business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, is required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes, as the case may be, which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply to such holders as if references in such provision to taxes included taxes imposed by way of deduction or withholding by any such Additional Taxing Jurisdiction (or any political subdivision thereof or taxing authority therein).
(e) The Issuer Company will pay any present or future stamp, court or documentary taxes, or any other excise or property taxes (other than net wealth taxes or similar taxes imposed on the relevant Guarantor holder irrespective of such holder’s investment in the Notes and based on the total net value of the holder’s property), charge or similar levies that arise in any Relevant Taxing Jurisdiction from the execution, delivery, enforcement or registration of the Notes or any other document or instrument in relation thereto (other than a transfer of the Notes), and the Company will agree to indemnify the holders for any such Taxes paid by such holders.
(f) The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a Company is organized or any political subdivision or taxing authority or agency thereof or therein. Upon request, the Company will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall Copies of such documentation will be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld made available to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount holders of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofupon request.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (Stena Ab), Indenture (Stena Ab)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption priceRedemption Price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes Holder after such withholding or deduction shall will equal the respective amounts that would have been received and retained by each Holder in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder or beneficial owner, if the relevant holder Holder or beneficial owner is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder Holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder Holder at least 60 30 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder Holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder Holder of the Notes if such holder Holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder Holder been the sole beneficial owner of such Note;
(8) any Taxes imposed by the United States, any state thereof or the District of Columbia, or any subdivision thereof or territory thereof, including any U.S. federal withholding taxes and any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any paymentspayments or that are imposed on or result from a sale or other transfer or disposition of a Note by a Holder or a beneficial owner, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof), save in each case for any such taxes, charges or levies which arise or are increased as a result of any document effecting the registration, issue or delivery of any of the notes either being signed or executed in the United Kingdom or being brought into the United Kingdom.
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder of this Note upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (Norwegian Cruise Line Holdings Ltd.), Indenture (Norwegian Cruise Line Holdings Ltd.)
Additional Amounts. (a) All payments made by any Guarantor (except IR Company) or a successor to such Guarantor (except IR Company) (each a “Payor”) on behalf the Senior Notes in respect of the Issuer or any of the Guarantors interest, premium (including, in each case, any successor entityif any) under or with respect to the Notes or any Note Guarantee and principal shall be made free and clear of and without withholding or deduction for, or on account of, any present or future Taxes taxes, duties, assessments or governmental charges of whatever nature (“Taxes”) unless the withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of of:
(1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment on the Senior Notes or the applicable Guarantee is made by in respect of interest, premium or on behalf of the Issuer or any Guarantor (includingprincipal, without limitation, the jurisdiction of any Paying Agent) or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any other jurisdiction in which a Payor is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Tax Relevant Taxing Jurisdiction”) in respect of ), shall at any time be required from any payments under or made with respect to the Senior Notes in respect of interest, premium or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, Payor shall pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of the Senior Notes or the Guarantee, as the case may be, after such withholding or deduction shall (including any such deduction or withholding from such Additional Amounts), equal the respective amounts that which would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no such Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes that would not have been so imposed but for the holder existence of any present or former connection between the beneficial owner of the Notes (or between a fiduciary, settlor, beneficiary, partner ofpartner, member member, shareholder or shareholder other holder of equity interests of, or possessor of a power over, over the relevant holderbeneficial owner, if the relevant holder beneficial owner is an estate, nominee, trust, nominee, partnership, limited liability company company, corporation or corporationother entity) and the Relevant Taxing Jurisdiction (including the beneficial owner being or having been a citizen or resident or national of, or incorporated, engaged in carrying on a trade business or business in, being or having been physically present in or having maintaining a permanent establishment in, or being physically present in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Relevant Taxing Jurisdiction, ) other than any connection arising solely from by the acquisition, mere ownership or disposition holding of Notes, the exercise such note or enforcement of rights thereunder or under such Note, the Indenture or a Note Guarantee, Guarantee or the receipt of payments in respect of such Note or a Note Guaranteethereof;
(2) any Taxes, Taxes that would not have been so imposed if the beneficial owner had made a declaration of non-residence or any other claim or filing for exemption to which it is entitled (provided that (x) such 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 extent first payment date with respect to which such Taxes were imposed as a result declaration of non-residence or other claim or filing for exemption is required under the applicable law of the presentation Relevant Taxing Jurisdiction, the relevant beneficial owner at that time has been notified by the Payor or any other person through whom payment may be made that a declaration of a Note non-residence or other claim or filing for exemption is required to be made);
(3) any note presented for payment (where presentation is permitted or required) more than 30 days after the relevant payment is first made available for payment to the holder beneficial owner (except to the extent that the holder beneficial owner would have been entitled to Additional Amounts had the Note note been presented on the last day of during such 30 day period);
(34) any Taxes that are payable otherwise than by withholding or deduction from a payment of the principal of, premium, if any, or interest, on the Senior Notes or under the Guarantee;
(5) any estate, inheritance, gift, value, use, sale, excise, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments undertax, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information assessment or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentationgovernmental charge;
(6) any Taxes 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 of the Notes to the extent such Taxes which could have been avoided by presenting the presentation (where presentation is required) of the relevant Note to, or otherwise accepting payment from, note to another Paying Agent;
(7) any Taxes imposed on withholding or with respect deduction required pursuant to any payment by the Issuer or any an agreement described in Section 1471(b) of the Guarantors to the holder of the Notes if such holder is a fiduciary Code, or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are otherwise imposed pursuant to current Section Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated or agreements thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law treaty, law, regulation or administrative practices other official guidance in any other jurisdiction implementing an intergovernmental approach thereto;
(8) any withholding or procedures) implementing the foregoing or any agreements entered into deduction imposed pursuant to current Section 1471(b)(1) the Luxembourg law of the Code (23 December 2005 as amended, introducing a withholding tax on certain interest payments made or any amended or successor version described above)ascribed by Luxembourg paying agents to Luxembourg resident individuals; or
(9) any Taxes imposed or levied by reason of any combination of clauses (1) through (8) above. In addition Such Additional Amounts shall also not be payable where, had the beneficial owner of the note been the Holder of the note, it would not have been entitled to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied payment of Additional Amounts by any jurisdiction on the execution, delivery, issuance, or registration reason of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through to (9) above inclusive above. The Payor shall (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 shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any combination thereofTaxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and shall provide such certified copies to each Holder. The Payor shall 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 Senior Notes then outstanding and (y) the amount of such withholding Taxes paid per $1,000 principal amount of the Senior Notes. Copies of such documentation shall be available for inspection during ordinary business hours at the office of the Trustee by the Holders of the Senior Notes upon request and shall be made available at the offices of the Paying Agent. At least 30 days prior to each date on which any payment under or with respect to the Senior Notes or the Guarantee 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).
(b) If , if the Issuer or any Guarantor, as the case may be, becomes aware that it will Payor shall be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guaranteesuch payment, the Issuer or the relevant Guarantor, as the case may be, will Payor 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that such Additional Amounts will shall be payable, the amounts so payable and the amount estimated to be so payable. The Officer’s Certificate must also shall set forth any such other information reasonably necessary to enable the Paying Agents Trustee to pay such Additional Amounts to Holders on the relevant payment date. The Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Each such Officer’s Certificate shall be relied upon until receipt of a further Officer’s Certificate addressing such matters. If the Payor conducts business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as conclusive proof that a result, is required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments are necessary.
(c) The Issuer under the Senior Notes or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 Issuer or a GuarantorGuarantee, as the case may be, which would not have been required to be so deducted or ifwithheld but for such conduct of business in such Additional Taxing Jurisdiction, notwithstanding the Additional Amounts provision described above shall be considered to apply to such entity’s efforts Holders or beneficial owners as if references in such provision to obtain receipts, receipts are not obtained, other evidence “Taxes” included taxes imposed by way of payments deduction or withholding by any such Additional Taxing Jurisdiction (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever or any political subdivision thereof or governmental authority therein). Wherever in the Indenture Indenture, the Senior Notes or this Note the Guarantee there is are mentioned, in any context, :
(1) the payment of amounts based upon the principal amount or premium (if any),
(2) purchase prices in connection with a purchase of the Notes or of principalSenior Notes,
(3) interest, interest or of or
(4) any other amount payable under, on or with respect to, any of to the Senior Notes or any Note the Guarantee, such mention reference shall be deemed to include mention of the payment of Additional Amounts as described under this section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
. The Payor shall pay any present or future stamp, court or documentary taxes, or any other excise or property taxes, charges or similar levies which arise in any jurisdiction from the execution, delivery or registration of any Senior Notes or any other document or instrument referred to therein (eother than a transfer of the Senior Notes), or the receipt of any payments with respect to the Senior Notes or the Guarantee, excluding (i) any such taxes, charges’ or similar levies imposed by Luxembourg in case the Senior Notes or the Guarantee (and/or any documents in connection therewith) are (a) enclosed to a compulsorily registrable deed within a mandatory deadline (acte obligatoirement enregistrable dans un délai de rigueur) or (b) deposited with the official records of a notary (déposé au rang des minutes d’un notaire) and (ii) any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction, other than those resulting from, or required to be paid in connection with, the enforcement of the Senior Notes, the Guarantee or any other such document or instrument following the occurrence of any Event of Default with respect to the Senior Notes. The preceding foregoing obligations will shall survive any termination, defeasance or discharge of the Indenture, any transfer by a holder or beneficial owner of its Notes, Indenture and will apply, shall apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer (or any Guarantor) a Payor is incorporated, engaged in business, organized or otherwise considered a resident for tax purposes, purposes or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision or governmental authority or agency thereof or therein.
Appears in 2 contracts
Sources: First Supplemental Indenture (Ingersoll-Rand PLC), Third Supplemental Indenture (Ingersoll-Rand PLC)
Additional Amounts. (a) All payments made (including any premium paid upon redemption of the Notes) by or on behalf of the Issuer Company or any a successor in respect of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any the Guarantor or a successor in respect of the Note Guarantee shall Guaranty will be made free and clear of of, and without withholding or deduction for, or on account of, of any present or future Taxes unless the withholding or deduction of such Taxes is then required by law. If the Issuertaxes, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount forduties, assessments, or on account of, any Taxes other governmental charges of whatever nature imposed or levied by or on behalf of (1) Chile, the Cayman Islands, or any authority therein or thereof or any other jurisdiction (other than the United States) in which the Issuer Company or any the Guarantor is (in each case, their successor) are organized, doing business or was incorporatedfrom or through which payments are made in respect of the Notes, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision taxing authority thereof or therein (each any of (1) and (2the aforementioned being a “Taxing Jurisdiction”), a “Tax Jurisdiction”unless the Company or the Guarantor (or their respective successor) in respect are compelled by law to deduct or withhold such taxes, duties, assessments, or governmental charges. In such event, the Company or the Guarantor (or their respective successor) will make such deduction or withholding, make payment of any payments under or with respect the amount so withheld to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall appropriate governmental authority and pay such additional amounts (the “Additional Amounts”) Amounts as may be necessary in order to ensure that the net amounts received and retained in respect of such payments by each beneficial owner registered Holders of Notes after such withholding or deduction shall equal the respective amounts that of principal and interest (or other amounts stated to be payable under the Notes) which would have been received and retained in respect of such payments the Notes in the absence of such withholding or deduction; provideddeduction (“Additional Amounts”). Notwithstanding the foregoing, however, that no such Additional Amounts shall be payable with respect topayable:
(1i) any Taxesto, or to the extent a third party on behalf of, a Holder who is liable for such Taxes would not have been imposed but for the holder taxes, duties, assessments or the beneficial owner governmental charges in respect of such Note by reason of the Notes existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, a trust, nominee, a partnership, limited liability company or a corporation) and the relevant Taxing Jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or national of, being or incorporated, having been engaged in a trade or business inor present therein or having, being or having been physically present in or having had, a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdictiontherein, other than any connection arising solely from the acquisition, ownership or disposition mere holding of Notes, the exercise Note or enforcement of rights under such Note, the Indenture or a Note Guarantee, or and the receipt of payments with respect to the Note;
(ii) in respect of such Note Notes surrendered or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note presented for payment (where presentation if surrender or presentment is required) more than 30 days after the relevant payment is first made available for payment to the holder (Relevant Date except to the extent that payments under such Note would have been subject to withholdings and the holder Holder of such Note would have been entitled to such Additional Amounts had the Amounts, on surrender of such Note been presented for payment on the last day of such period of 30 day period)days;
(3iii) to, or to a third party on behalf of, a Holder who is liable for such taxes, duties, assessments or other governmental charges by reason of such Holder’s failure to comply with any certification, identification, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder, if (1) compliance is required by law or an applicable income treaty as a precondition to, exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and (2) the Company has given the Holders at least 30 days’ notice that Holders will be required to provide such certification, identification, documentation or other requirement;
(iv) in respect of any estate, inheritance, gift, salesales, transfer, capital gains, excise or personal property or similar Taxestax, assessment or governmental charge, other than as provided in Section 4.06(g) of the Indenture;
(4v) in respect of any Taxes tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments under, of principal of (including premium) or with respect to, interest on the Notes or any Note GuaranteeNote;
(5vi) in respect of any Taxes tax imposed on overall net income or any branch profits tax; or
(vii) in respect of any combination of the above. Notwithstanding anything to the extent such Taxes would not have been imposed or withheld but for the failure contrary in this section, none of the holder or beneficial owner of Company, the NotesGuarantor, following their respective successors, the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information Paying Agent or other reporting requirements, whether person shall be required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) pay any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or Additional Amounts with respect to any payment by in respect of any taxes imposed under Sections 1471 through 1474 of the Issuer U.S. Internal Revenue Code of 1986 (the “Code”), as amended, or any successor law or regulation implementing or complying with, or introduced in order to conform to, such sections or any intergovernmental agreement or imposed pursuant to any agreement entered into pursuant to section 1471(b)(1) of the Guarantors Code. No Additional Amounts shall be paid with respect to the holder of the Notes if such holder any payment on a Note to a Holder who is a fiduciary fiduciary, a partnership, a limited liability company or partnership or any person other than the sole beneficial owner of such that payment to the extent that such Taxes payment would be required by the relevant Taxing Jurisdiction to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership, an interest holder in a limited liability company or a beneficial owner who would not have been entitled to the Additional Amounts had that beneficiary, settlor, member or beneficial owner been the Holder. Payments on the Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above, the Company shall not be required to pay Additional Amounts with respect to any tax, assessment or governmental charge imposed on by any government or a political subdivision or taxing authority thereof or therein. Each of the Company and the Guarantor (or their successors) will pay any Taxes required to be deducted or withheld pursuant to applicable law and furnish to the Holders, within 60 days after the date such payment is due, either certified copies of tax receipts evidencing such payment, or, if such receipts are not obtainable, other evidence of such payments had such holder been reasonably satisfactory to the sole beneficial owner Holders. In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Note;
(8) Notes, and, as a result thereof such Holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any Taxes that are imposed pursuant such claim for a refund or credit of such excess to current Section 1471 through 1474 the Company. Any reference in the Indenture or the Notes to principal, interest or any other amount payable in respect of the Internal Revenue Code of 1986Notes by the Company or the Note Guaranty by the Guarantor (or their successors) will be deemed also to refer to any Additional Amount, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Paragraph 6. The Company, or the Guarantor, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply withapplicable, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for when due any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, taxes or any other excise or property taxes, charges or similar levies (including and any penalties, interest and additions to tax related theretoor interest due with respect thereto imposed by Chile (or any political subdivision or governmental authority thereof or therein having power to tax) which are levied by any jurisdiction on or the Cayman Islands with respect to the initial execution, delivery, issuance, delivery or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) other document or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payableinstrument relating thereto. 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations foregoing obligation will survive any termination, defeasance termination 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (Latam Airlines Group S.A.), Indenture (Latam Airlines Group S.A.)
Additional Amounts. (a) All payments made TEL hereby agrees that any amounts to be paid by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or TEL hereunder with respect to the Notes or any Note Guarantee shall be made free paid without deduction or withholding for any and clear of all present and without future withholding or deduction fortaxes, or on account oflevies, any present or future Taxes unless the withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposts and charges whatsoever imposed or levied by or on behalf for the account of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes Cayman Islands or any political subdivision or taxing authority thereof or therein therein, or (2) if deduction or withholding of any jurisdiction from such taxes, levies, imposts or through which charges shall at any payment is made time be required by or on behalf of the Issuer Cayman Islands or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) such subdivision or any political subdivision authority thereof or therein therein, TEL will (each subject to compliance by the Holder of (1such Note with any relevant administrative requirements) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “"Additional Amounts”") in respect of principal amount, premium (if any), Redemption Price, and interest (if any), in accordance with the terms of the Notes and this Indenture, as may be necessary in order that the net amounts received and retained in respect of paid to such payments by each beneficial owner of Notes Holder or the Trustee, as the case may be, after such withholding deduction or deduction withholding, shall equal the respective amounts that would have been received of principal amount, premium (if any), Redemption Price, and retained interest (if any), in respect accordance with the terms of the Notes and this Indenture, as specified in such payments in the absence of Notes to which such withholding or deductionHolder is entitled; provided, however, that no Additional Amounts the foregoing shall be payable with respect not apply to:
(1i) any Taxessuch tax, to levy, impost or charge which would not be payable or due but for the extent fact that (A) the Holder of such Taxes Note (or a fiduciary, settlor, beneficiary of, member or shareholder of, such Holder, if such Holder is an estate, trust, partnership or corporation) is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Cayman Islands or such political subdivision or otherwise having some present or former connection with the Cayman Islands other than the holding or ownership of such Note or the collection of principal amount, premium (if any), Redemption Price, and interest (if any), in accordance with the terms of the Notes and this Indenture, or the enforcement of such Note or (B) where presentation is required, such Note was presented more than 30 days after the date such payment became due or was provided for, whichever is later;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;
(iii) any tax, levy, impost or charge which is payable otherwise than by withholding from payment of principal amount, premium (if any), Redemption Price, and interest (if any);
(iv) any tax, levy, impost or charge which would not have been imposed but for the holder failure to comply with certification, information, documentation or other reporting requirements concerning the beneficial owner of the Notes (nationality, residence, identity or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection connections with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result tax authority of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder Holder or beneficial owner of the Notessuch Note, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any if such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether compliance is required by statute, treaty, statute or by regulation or administrative practice of a Tax Jurisdiction, as a precondition to relief or exemption fromfrom such tax, levy, impost or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentationcharge;
(6v) any Taxes imposed in connection with a Note presented for payment combination of (where presentation is permitted or required for paymenti) by or on behalf of a holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
through (7) iv); nor shall any Taxes imposed on or with respect Additional Amounts be paid to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment Note to the extent that a beneficiary or settlor with respect to such Taxes fiduciary, or a member or such partnership or a beneficial owner thereof would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant entitled to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent thathad such beneficiary, in such contextsettlor, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder member or beneficial owner been the Holder of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or thereinNote."
Appears in 2 contracts
Sources: Second Supplemental Indenture (Triton Energy LTD), Supplemental Indenture (Triton Energy LTD)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes (whether or not in the form of Definitive Registered Notes) or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1i) any jurisdiction (other than the United States) in which the Issuer or any Guarantor (including any successor entity) is then incorporated or was incorporatedorganized, engaged in business, organized business or resident for tax purposes purposes, or any political subdivision thereof or therein therein, or (2ii) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2)each, a “Tax Jurisdiction”) in respect of will at any time be required to be made from any payments made by or on behalf of the Issuer or any Guarantor under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall (including any such withholding or deduction from such Additional Amounts) will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
(1i) any Taxes, to the extent such Taxes that would not have been imposed but for the holder or the beneficial owner Holder of the Notes having a past or present connection to the relevant Tax Jurisdiction (other than connections resulting from the mere acquisition or a fiduciary, settlor, beneficiary, partner of, member holding of any Note or shareholder the enforcement of, or possessor receipt of a power overpayment under or in respect of, the relevant holderany Note or any Note Guarantee), if the relevant holder is an estateincluding, trustwithout limitation, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present incorporated in or having carrying on a permanent establishment business in, the relevant Tax Jurisdiction in which such Taxes are imposed;
(ii) any Taxes that are imposed or having withheld as a result of the failure of the Holder of the Notes to comply with any reasonable written request, made to such Holder in writing at a time that would enable the Holder acting reasonably to comply with such request and, in any event, at least 90 days before any withholding or having had deduction of such Taxes would be payable, by the Issuer to satisfy any certification, information or other present reporting requirement, which is required or former connection with imposed by a statute, treaty, regulation or administrative practice of the relevant Tax Jurisdiction as a precondition to any exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction, other than any connection arising solely from the acquisitionbut in each case, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, only to the extent such Holder is legally entitled to satisfy such requirements;
(iii) any Taxes were imposed or withheld as a result of the presentation of a any Note for payment (where Notes are in the form of Definitive Registered Notes and presentation is required) more than 30 60 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 60 day period);
(3iv) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4v) any Taxes withheld or deducted from a payment to an individual as required pursuant to European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meetings of November 26, 2000 and November 27, 2000 on the taxation of savings income or any law implementing or complying with or introduced in order to conform to, such Directive;
(vi) any Taxes imposed or withheld as a result of the presentation of any Note for payment by or on behalf of a Holder of Notes who would have been able to avoid such withholding or deduction by presenting the relevant Note to another Paying Agent in a member state of the European Union;
(vii) any Taxes payable other than by deduction or withholding from payments under, under or with respect to, to the Notes Note or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9viii) any combination of clauses items (1) through (8) 7) above. .
(b) In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder Holders (and Trustee, as applicable) for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxesTaxes, charges or similar levies (including penaltiesor Taxes, interest and additions to tax related thereto) which are levied by any jurisdiction Tax Jurisdiction on the execution, delivery, issuance, registration or registration enforcement of any of the Notes, the this Indenture, any Note Guarantee or any other document or instrument referred to therein, or the consummation of the transactions contemplated thereby or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(bc) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, Guarantor will deliver to the Trustee on a date that is at least 30 45 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th 45th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Unless and until a Responsible Officer of the Trustee receives such an Officer’s Certificate, the Trustee may assume without inquiry that no Additional Amounts are payable.
(d) The Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, Guarantor will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax tax authority in accordance with applicable law. The Issuer or the relevant Guarantor will use its reasonable efforts provide to obtain Tax the Trustee an official receipt or, if official receipts from each Tax authority are not obtainable, other documentation reasonably satisfactory to the Trustee evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will furnish attach to each certified copy or other document a certificate stating the Trustee (or to a Holder upon amount of such Taxes paid per $1,000 principal amount of the Notes then outstanding. Upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax those receipts evidencing payment by the Issuer or a Guarantorother documentation, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory will be made available by the Trustee to the Trustee) by such entityHolders of the Notes.
(de) Whenever in the this Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(ef) The preceding obligations set forth in this Section 4.17 will survive any termination, defeasance or discharge of the Indenture, this Indenture and any transfer by a holder Holder or beneficial owner of its Notes, and .
(g) The obligations set forth in this Section 4.17 will also apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor) Guarantor is incorporatedincorporated or organized, engaged in business, organized business for tax purposes or otherwise resident for tax purposes, or purposes and any jurisdiction from or through which any payment is made under or with respect to the Notes (or any Note Guarantee) is made by or on behalf of such Person andPerson, in each case, including any department or political subdivision thereof or therein.
Appears in 2 contracts
Sources: 2019 Notes Indenture (North Atlantic Drilling Ltd.), 2019 Notes Indenture (North Atlantic Drilling Ltd.)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Class A Notes or any Note Guarantee thereof shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Class A Notes or any Note GuaranteeGuarantee thereof, including, without limitation, payments of principal, redemption priceRedemption Price, purchase price, interest interest, duration fees or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes Holder after such withholding or deduction shall will equal the respective amounts that would have been received and retained by each Holder in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Class A Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder or beneficial owner, if the relevant holder Holder or beneficial owner is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Class A Notes, the exercise or enforcement of rights under such Class A Note, any Note Guarantee thereof or the Indenture or a Note GuaranteeIndenture, or the receipt of payments in respect of such Class A Note or a any Note GuaranteeGuarantee thereof;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Class A Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Class A Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Class A Notes or any Note GuaranteeGuarantee thereof;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder Holder or beneficial owner of the Class A Notes, following the Issuer’s reasonable written request addressed to the holder Holder at least 60 30 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes imposed in connection with a Class A Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder Holder or beneficial owner of the Class A Notes to the extent such Taxes could have been avoided by presenting the relevant Class A Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder Holder of the Class A Notes if such holder Holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder Holder been the sole beneficial owner of such Class A Note;
(8) any Taxes imposed by the United States, any state thereof or the District of Columbia, or any subdivision thereof or territory thereof, including any U.S. federal withholding taxes and any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) ), or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the NotesIndenture, the IndentureClass A Notes, any Note Guarantee thereof or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Class A Notes or any Note Guarantee thereof (limited, solely in the case of Taxes attributable to the receipt of any paymentspayments or that are imposed on or result from a sale or other transfer or disposition of a Class A Note by a Holder or a beneficial owner, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof)., save in each case for any such taxes, charges or levies which arise or are increased as a result of any document effecting the registration, issue or delivery of any of the Class A Notes either being signed or executed in the United Kingdom or being brought into the United Kingdom.
(b) If the 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 Class A Notes or any Note GuaranteeGuarantee thereof, the Issuer or the relevant Guarantor, as the case may be, will 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder of this Class A Note upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Class A Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Class A Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Class A Notes or any Note GuaranteeGuarantee thereof, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder Holder or beneficial owner of its Class A Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Class A Notes (or any Note GuaranteeGuarantee thereof) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Second Supplemental Indenture (Norwegian Cruise Line Holdings Ltd.), Second Supplemental Indenture (NCL CORP Ltd.)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption priceRedemption Price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes Holder after such withholding or deduction shall will equal the respective amounts that would have been received and retained by each Holder in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1i) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder or beneficial owner, if the relevant holder Holder or beneficial owner is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture such Note Guarantee or a Note Guaranteethis Indenture, or the receipt of payments in respect of such Note or a Note Guarantee;
(2ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3iii) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4iv) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5v) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder Holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder Holder at least 60 30 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible to provide such certification or documentation;
(6vi) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder Holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7vii) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes Holder if such holder Holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder Holder been the sole beneficial owner of such Note;
(8) viii) any Taxes imposed by the United States, any state thereof or the District of Columbia, or any subdivision thereof or territory thereof, including any U.S. federal withholding taxes and any Taxes that are imposed pursuant to current Section Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9ix) any combination of clauses (1(i) through (8) (viii) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the this Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any paymentspayments or that are imposed on or result from a sale or other transfer or disposition of a Note by a Holder or a beneficial owner, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1(i) through (3(iii) or (5(v) through (9(ix) above or any combination thereof), save in each case for any such taxes, charges or levies which arise or are increased as a result of any document effecting the registration, issue or delivery of any of the notes either being signed or executed in the United Kingdom or being brought into the United Kingdom.
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will shall make all withholdings and deductions (within the time period) required by law and will shall remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer or the relevant Guarantor will shall use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will shall furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the this Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will This Section 4.12 shall survive any termination, defeasance or discharge of the this Indenture, any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (Norwegian Cruise Line Holdings Ltd.), Indenture (Norwegian Cruise Line Holdings Ltd.)
Additional Amounts. (a) All payments made The Issuer hereby agrees that any amounts to be paid by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or hereunder with respect to the Notes or any Note Guarantee shall be made free paid without deduction or withholding for any and clear of all present and without future withholding or deduction fortaxes, or on account oflevies, any present or future Taxes unless the withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposts and charges whatsoever imposed or levied by or on behalf for the account of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes Cayman Islands or any political subdivision or taxing authority thereof or therein therein, or (2) any jurisdiction from if deduction or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction withholding of any Paying Agent) such taxes, levies, imposts or charges shall at any political time be required by the Cayman Islands or anysuch subdivision or authority thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premiumtherein, the Issuer or will (subject to compliance by the Holder of such Note with any relevant Guarantor, as applicable, shall administrative requirements) pay such additional amounts (the “"Additional Amounts”") in respect of principal amount, premium (if any), Redemption Price, and interest (if any), in accordance with the terms of the Notes and this Indenture, as may be necessary in order that the net amounts received and retained in respect of paid to such payments by each beneficial owner of Notes Holder or the Trustee, as the case may be, after such withholding deduction or deduction withholding, shall equal the respective amounts that would have been received of principal amount, premium (if any), Redemption Price, and retained interest (if any), in respect accordance with the terms of the Notes and this Indenture, as specified in such payments in the absence of Notes to which such withholding or deductionHolder is entitled; provided, however, that no Additional Amounts the foregoing shall be payable with respect not apply to:
(1i) any Taxessuch tax, to levy, impost or charge which would not be payable or due but for the extent fact that (A) the Holder of such Taxes Note (or a fiduciary, settlor, beneficiary of, member or shareholder of, such Holder, if such Holder is an estate, trust, partnership or corporation) is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Cayman Islands or such political subdivision or otherwise having some present or former connection with the Cayman Islands other than the holding or ownership of such Note or the collection of principal amount, premium (if any), Redemption Price, and interest (if any), in accordance with the terms of the Notes and this Indenture, or the enforcement of such Note or (B) where presentation is required, such Note was presented more than 30 days after the date such payment became due or was provided for, whichever is later;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;
(iii) any tax, levy, impost or charge which is payable otherwise than by withholding from payment of principal amount, premium (if any), Redemption Price, and interest (if any);
(iv) any tax, levy, impost or charge which would not have been imposed but for the holder failure to comply with certification, information, documentation or other reporting requirements concerning the beneficial owner of the Notes (nationality, residence, identity or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection connections with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result tax authority of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder Holder or beneficial owner of the Notessuch Note, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any if such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether compliance is required by statute, treaty, statute or by regulation or administrative practice of a Tax Jurisdiction, as a precondition to relief or exemption fromfrom such tax, levy, impost or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentationcharge;
(6v) any Taxes imposed in connection with a Note presented for payment combination of (where presentation is permitted or required for paymenti) by or on behalf of a holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
through (7) iv); nor shall any Taxes imposed on or with respect Additional Amounts be paid to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment Note to the extent that extentthat a beneficiary or settlor with respect to such Taxes fiduciary, or a member or such partnership or a beneficial owner thereof would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant entitled to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent thathad such beneficiary, in such contextsettlor, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder member or beneficial owner been the Holder of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or thereinNote."
Appears in 2 contracts
Sources: First Supplemental Indenture (Triton Energy LTD), Second Supplemental Indenture (Triton Energy LTD)
Additional Amounts. (a) All payments made by or on behalf of the Issuer Company or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes (whether or not in the form of Definitive Registered Notes) or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1i) any jurisdiction (other than the United States) in which the Issuer Company or any Guarantor (including any successor entity), is or was then incorporated, engaged in business, organized or resident for tax purposes or any political subdivision or governmental authority thereof or therein or (2ii) any jurisdiction from or through which any payment is made by or on behalf of the Issuer Company or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision or governmental authority thereof or therein (each of (1i) and (2ii), a “Tax Jurisdiction”) in respect of ), will at any time be required to be made from any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer Company or the relevant GuarantorGuarantor or other payor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each Holder or beneficial owner of Notes (including Additional Amounts) after such withholding withholding, deduction or deduction shall imposition will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
: (1i) any Taxes, to the extent such Taxes would not have been imposed but for the holder Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder, if the relevant holder Holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged incorporated in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction in which such Taxes are imposed or having or having had any other present or former connection with the relevant Tax Jurisdiction, Jurisdiction other than any connection arising solely from the acquisition, ownership acquisition or disposition holding of such Notes, the exercise or enforcement of rights under such Note, Note or the Indenture or under a Note Guarantee, Guarantee or the receipt of payments in respect of such Note or a Note Guarantee;
; (2ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
; (3iii) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
; (4iv) any Taxes imposed as result of any Note 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 the relevant Note to another Paying Agent in a member state of the European Union; (v) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any Note Guarantee;
; (5vi) any Taxes to the extent such Taxes would not have been are imposed or withheld but for by reason of the failure of the holder Holder or beneficial owner of the Notes, following the IssuerCompany’s reasonable written request addressed to the holder Holder or beneficial owner at least 60 days before any such withholding or deduction would be imposedpayable to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible entitled to provide such certification or documentation;
; (6vii) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) withheld by or on behalf reason of a holder the failure of the Holder or beneficial owner of the Notes to comply with the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any requirements of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) ), as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations promulgated thereunder, the U.S. Treasury Regulations issued thereunder or any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (interpretation thereof or any related law or administrative practices or procedures) implementing the foregoing or any agreements agreement entered into pursuant to current Section 1471(b)(1) 1471 of the Code Code; or (or any amended or successor version described above); or
(9viii) any combination of clauses (1i) through (8) vii) above. .
(b) In addition to the foregoing, the Issuer Company and the Guarantors will also pay and indemnify the holder Holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax any other liabilities related thereto) which are levied by any jurisdiction Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof)Guarantee.
(bc) If the Issuer Company 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 Note Guarantee, the Issuer Company or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer Company or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates 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 Issuer Company or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary, and may conclusively presume that no payments are necessary unless and until it receives any such Officer’s Certificate.
(cd) The Issuer Company or the relevant Guarantor, if it is the applicable withholding agent, Guarantor will make all withholdings and deductions (within the time periodperiod and in the minimum amount) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer Company 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 Issuer Company or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 Issuer Company 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 (reasonably satisfactory to the Trustee) by such entity.
(de) Whenever in the Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The obligations described under Sections 4.01(c), (d), (e) The preceding obligations and (f) of the Indenture will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (Company or any Guarantor) Guarantor is incorporated, engaged in business, organized business for tax purposes or resident for tax purposes, purposes or any jurisdiction from or through which such Person makes any payment is made under or with respect to on the Notes (or any Note Guarantee) by and any department or on behalf of such Person and, in each case, any political subdivision or taxing authority or agency thereof or thereintherein having the power to tax.
Appears in 2 contracts
Sources: Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes (whether or not in the form of Definitive Registered Notes) or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1i) any jurisdiction (other than the United States) in which the Issuer or any Guarantor (including any successor entity), is or was then incorporated, engaged in business, organized or resident for tax purposes or any political subdivision or governmental authority thereof or therein or (2ii) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision or governmental authority thereof or therein (each of (1i) and (2ii), a “Tax Jurisdiction”) in respect of ), will at any time be required to be made from any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant GuarantorGuarantor or other payor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each Holder or beneficial owner of Notes (including Additional Amounts) after such withholding withholding, deduction or deduction shall imposition will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
: (1i) any Taxes, to the extent such Taxes would not have been imposed but for the holder Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder, if the relevant holder Holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged incorporated in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction in which such Taxes are imposed or having or having had any other present or former connection with the relevant Tax Jurisdiction, Jurisdiction other than any connection arising solely from the acquisition, ownership acquisition or disposition holding of such Notes, the exercise or enforcement of rights under such Note, Note or the Indenture or under a Note Guarantee, Guarantee or the receipt of payments in respect of such Note or a Note Guarantee;
; (2ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
; (3iii) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
; (4iv) any Taxes imposed as result of any Note 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 the relevant Note to another Paying Agent in a member state of the European Union; (v) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any Note Guarantee;
; (5vi) any Taxes to the extent such Taxes would not have been are imposed or withheld but for by reason of the failure of the holder Holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder Holder or beneficial owner at least 60 days before any such withholding or deduction would be imposedpayable to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible entitled to provide such certification or documentation;
; (6vii) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) withheld by or on behalf reason of a holder the failure of the Holder or beneficial owner of the Notes to comply with the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any requirements of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) ), as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations promulgated thereunder, the U.S. Treasury Regulations issued thereunder or any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (interpretation thereof or any related law or administrative practices or procedures) implementing the foregoing or any agreements agreement entered into pursuant to current Section 1471(b)(1) 1471 of the Code Code; or (or any amended or successor version described above); or
(9viii) any combination of clauses (1i) through (8) vii) above. .
(b) In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder Holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax any other liabilities related thereto) which are levied by any jurisdiction Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof)Guarantee.
(bc) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary, and may conclusively presume that no payments are necessary unless and until it receives any such Officer’s Certificate.
(cd) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, Guarantor will make all withholdings and deductions (within the time periodperiod and in the minimum amount) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(de) Whenever in the Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The obligations described under Sections 4.01(c), (d), (e) The preceding obligations and (f) of the Indenture will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor) Guarantor is incorporated, engaged in business, organized business for tax purposes or resident for tax purposes, purposes or any jurisdiction from or through which such Person makes any payment is made under or with respect to on the Notes (or any Note Guarantee) by and any department or on behalf of such Person and, in each case, any political subdivision or taxing authority or agency thereof or thereintherein having the power to tax.
Appears in 2 contracts
Sources: Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors Guarantor (including, in each case, any successor entity) under or with respect to the Notes or any the Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any the Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any the Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction (other than the United States) from or through which any payment is made by or on behalf of the Issuer or any the Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any the Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of the Notes after such withholding or deduction shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a the Note Guarantee, or the receipt of payments in respect of such Note or a the Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any the Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors Guarantor to the holder of the Notes if such holder is a fiduciary or partnership or any person Person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors Guarantor will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the Issuer or any the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee in writing 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 Certificates 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely absolutely, and without liability to any Person therefor, on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable lawApplicable Law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 Issuer or a the Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any the Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (Royal Caribbean Cruises LTD), Indenture (Royal Caribbean Cruises LTD)
Additional Amounts. If any taxes, assessments or other governmental charges are imposed by the jurisdiction, other than the United States, where the Guarantor or a successor to the Company or the Guarantor (aa “Payor”) All payments made by is organized or otherwise considered to be a resident for tax purposes, any jurisdiction, other than the United States, from or through which the Payor makes a payment on behalf the Securities of the Issuer or any of the Guarantors (includingSeries, or, in each case, any successor entity) under political organization or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision governmental authority thereof or therein or having the power to tax (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Relevant Tax Jurisdiction”) in respect of any payments under or with respect the Securities of such Series, the Payor shall pay to each Holder of any such Security, to the Notes or any Note Guaranteeextent it may lawfully do so, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) Amounts as may be necessary in order that the net amounts received and retained paid to such Holder will be not less than the amount specified in respect of such payments by each beneficial owner of Notes after Security to which such withholding or deduction shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deductionHolder is entitled; provided, however, that no the Payor shall not be required to make any payment of Additional Amounts shall be payable with respect tofor or on account of:
(1a) any Taxestax, to the extent such Taxes assessment or other governmental charge which would not have been imposed but for (i) the holder existence of any present or the beneficial owner of the Notes former connection between such Holder (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, trust, nominee, partnership, limited liability company or corporation) and the Relevant Tax Jurisdiction including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or national of, being or incorporated, having been present or engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction therein or having or having had any other present a permanent establishment therein or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment Security (where presentation is required) for payment on a date more than 30 days after (x) the relevant date on which such payment became due and payable or (y) the date on which payment thereof is first made available for payment to the holder (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period)duly provided for, whichever occurs later;
(3b) any estate, inheritance, gift, salesales, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(4c) any Taxes tax, assessment or other governmental charge which is payable other otherwise than by deduction or withholding from payments underpayment of (or in respect of) principal of, premium, if any, or with respect toany interest on, the Notes or any Note GuaranteeSecurities of such Series;
(5d) any Taxes to the extent such Taxes would not have been tax, assessment or other governmental charge that is imposed or withheld but for by reason of the failure of by the holder Holder or the beneficial owner of the Notes, following Securities of such Series to comply with a request of the Issuer’s reasonable written request Payor addressed to the holder at least 60 days before any such withholding or deduction would be imposedHolder to provide information, to comply with any certification, identification, information documents or other reporting requirementsevidence concerning the nationality, whether residence or identity of the Holder or such beneficial owner which is required by a statute, treaty, regulation or administrative practice of a Tax Jurisdiction, the taxing jurisdiction as a precondition to exemption fromfrom all or part of such tax, assessment or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;other governmental charge; or
(6e) any Taxes 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 combination of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or above; nor will Additional Amounts be paid with respect to any payment by of the Issuer principal of, or any premium or interest on, any Securities of the Guarantors such Series to the holder of the Notes if such holder any Holder who is a fiduciary or partnership or any person limited liability company or other than the sole beneficial owner of such payment to the extent that such Taxes payment would be required by the laws of the Relevant Tax Jurisdiction to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership, or limited liability company or a beneficial owner who would not have been imposed on entitled to such payments Additional Amounts had such holder it been the sole beneficial owner Holder of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payableSecurities. 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 Issuer or the relevant Guarantor will Payor shall provide the Trustee with documentation reasonably satisfactory to the Trustee official acknowledgment of the relevant tax authority (or, if such acknowledgment is not available, a certified copy thereof) evidencing the payment of Additional Amountsthe withholding taxes by the Payor. The Trustee Copies of such documentation shall be entitled made available to rely absolutely on an Officer’s Certificate as conclusive proof that the Holders of the Securities of such payments are necessary.
(c) The Issuer Series or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 Issuer or a GuarantorPaying Agent, as the case may beapplicable, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity.
(d) upon written request therefor. Whenever in the this Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principalany premium or interest on, interest or in respect of, any Security of any other amount payable under, Series or with respect to, the net proceeds received on the sale or exchange of any Security of the Notes or any Note GuaranteeSeries, such mention shall be deemed to include mention of the payment of Additional Amounts provided 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 thereof.
(e) The preceding obligations will survive any terminationthereof pursuant to such terms, defeasance or discharge and express mention of the Indenturepayment 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, any transfer by 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 holder or beneficial owner payment of its Notesprincipal is made), and will apply, mutatis mutandis, at least 10 days prior to each date of payment of principal or interest if there has been any jurisdiction in which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or change with respect to the Notes (matters set forth in the below-mentioned Officers’ Certificate, the Company shall furnish to the Trustee and the Paying Agent or any Note Guarantee) by 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 behalf 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 Person andSecurities. The Company covenants to indemnify the Trustee and any Paying Agent for, in and to hold each caseof them harmless against, any political subdivision thereof loss, liability or thereinexpense 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 payments made by or on behalf of the Issuer Company or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes (whether or not in the form of Definitive Registered Notes) or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1i) any jurisdiction (other than the United States) in which the Issuer Company or any Guarantor (including any successor entity), is or was then incorporated, engaged in business, organized or resident for tax purposes or any political subdivision or governmental authority thereof or therein or (2ii) any jurisdiction from or through which any payment is made by or on behalf of the Issuer Company or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision or governmental authority thereof or therein (each of (1i) and (2ii), a “Tax Jurisdiction”) in respect of ), will at any time be required to be made from any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer Company or the relevant GuarantorGuarantor or other payor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each Holder or beneficial owner of Notes (including Additional Amounts) after such withholding withholding, deduction or deduction shall imposition will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
: (1i) any Taxes, to the extent such Taxes would not have been imposed but for the holder Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder, if the relevant holder Holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged incorporated in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction in which such Taxes are imposed or having or having had any other present or former connection with the relevant Tax Jurisdiction, Jurisdiction other than any connection arising solely from the acquisition, ownership acquisition or disposition holding of such Notes, the exercise or enforcement of rights under such Note, Note or the Indenture or under a Note Guarantee, Guarantee or the receipt of payments in respect of such Note or a Note Guarantee;
; (2ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
; (3iii) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
; (4iv) any Taxes withheld, deducted or imposed on a payment to an individual and that are 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, 2000 on the taxation of savings income, or any law implementing or complying with or introduced in order to conform to, such directive; (v) any Taxes imposed as result of any Note 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 the relevant Note to another Paying Agent in a member state of the European Union; (vi) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any Note Guarantee;
; (5vii) any Taxes to the extent such Taxes would not have been are imposed or withheld but for by reason of the failure of the holder Holder or beneficial owner of the Notes, following the IssuerCompany’s reasonable written request addressed to the holder Holder or beneficial owner at least 60 days before any such withholding or deduction would be imposedpayable to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible entitled to provide such certification or documentation;
; (6viii) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) withheld by or on behalf reason of a holder the failure of the Holder or beneficial owner of the Notes to comply with the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any requirements of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) ), as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations promulgated thereunder, the U.S. Treasury Regulations issued thereunder or any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (interpretation thereof or any related law or administrative practices or procedures) implementing the foregoing or any agreements agreement entered into pursuant to current Section 1471(b)(1) 1471 of the Code Code; or (or any amended or successor version described above); or
(9ix) any combination of clauses (1) through (8) above. .
(b) In addition to the foregoing, the Issuer Company and the Guarantors will also pay and indemnify the holder Holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax any other liabilities related thereto) which are levied by any jurisdiction Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof)Guarantee.
(bc) If the Issuer Company 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 Note Guarantee, the Issuer Company or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer Company or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates 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 Issuer Company or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary, and may conclusively presume that no payments are necessary unless and until it receives any such Officer’s Certificate.
(cd) The Issuer Company or the relevant Guarantor, if it is the applicable withholding agent, Guarantor will make all withholdings and deductions (within the time periodperiod and in the minimum amount) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer Company 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 Issuer Company or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 Issuer Company 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 (reasonably satisfactory to the Trustee) by such entity.
(de) Whenever in the Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The obligations described under Sections 4.01(c), (d), (e) The preceding obligations and (f) of the Indenture will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (Company or any Guarantor) Guarantor is incorporated, engaged in business, organized business for tax purposes or resident for tax purposes, purposes or any jurisdiction from or through which such Person makes any payment is made under or with respect to on the Notes (or any Note Guarantee) by and any department or on behalf of such Person and, in each case, any political subdivision or taxing authority or agency thereof or thereintherein having the power to tax.
Appears in 2 contracts
Sources: Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption priceRedemption Price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes Holder after such withholding or deduction shall will equal the respective amounts that would have been received and retained by each Holder in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder or beneficial owner, if the relevant holder Holder or beneficial owner is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder Holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder Holder at least 60 30 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder Holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes Holder if such holder Holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder Holder been the sole beneficial owner of such Note;
(8) any Taxes imposed by the United States, any state thereof or the District of Columbia, or any subdivision thereof or territory thereof, including any U.S. federal withholding taxes and any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any paymentspayments or that are imposed on or result from a sale or other transfer or disposition of a Note by a Holder or a beneficial owner, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof), save in each case for any such taxes, charges or levies which arise or are increased as a result of any document effecting the registration, issue or delivery of any of the notes either being signed or executed in the United Kingdom or being brought into the United Kingdom.
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder of this Note upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (Norwegian Cruise Line Holdings Ltd.), Indenture (Norwegian Cruise Line Holdings Ltd.)
Additional Amounts. (a) All payments made or deemed to be made by or on behalf of the Issuer or any of the Guarantors (including, in each caseIssuer, any successor entity) Note Guarantor as well as all payments made or deemed to be made by the Trustee pursuant to the provisions of Sections 8.01 and 8.06 under or with respect to the Notes or with respect to any Note Guarantee shall Guarantee, will be made free and clear of and without withholding or deduction for, or on account of, any present or future Taxes taxes, levies, imposts, duties, assessments or other governmental charges of whatever nature, including related penalties, interest and other liabilities (“Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the Issuer (including any Successor Issuer) is then incorporated, organized or resident for tax purposes or any political subdivision thereof or therein (a “Relevant Tax Jurisdiction”), (ii) any jurisdiction in which any Note Guarantor is then incorporated, organized or resident for tax purposes or any political subdivision thereof or therein (including any Successor Note Guarantor), or (iii) any jurisdiction from or through which payment is made by or on behalf of the Issuer or any Note Guarantor (including, without limitation, the jurisdiction of any Paying and Transfer Agent) or any political subdivision thereof or therein (each of (i), (ii) and (iii), a “Tax Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. law or the interpretation or administration thereof.
(b) If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or Tax Jurisdiction will at any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction time be required to be made from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments made or deemed to be made under or with respect to the Notes or with respect to any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or Issuer, the relevant GuarantorNote Guarantor or other payor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes Holder (including Additional Amounts) after such withholding withholding, deduction or deduction shall imposition of Taxes will equal the respective amounts that would have been received and retained in respect of such payments or deemed payments in the absence of such withholding or deductiondeduction of Taxes; provided, however, that no Additional Amounts shall will be payable with respect to:
(1) any Taxes, to the extent such Taxes that would not have been imposed but for the holder Holder of a Note or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) Note being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present incorporated in or having maintaining a permanent establishment or physical presence in, the relevant Tax Jurisdiction in which such Taxes are imposed, or carrying on a business or having or having had any other present or former connection with the relevant Tax Jurisdiction, Jurisdiction other than any connection arising solely from as a result of the mere acquisition, ownership holding, enforcement or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments payment in respect of such Note or a any Note Guarantee;
(2) any Taxes, to the extent such Taxes were that are imposed or withheld as a result of the presentation failure of the Holder or beneficial owner of a Note to comply with any timely reasonable written request, made to that Holder or beneficial owner, by the Issuer or any of the Note Guarantors to provide timely and accurate information concerning the nationality, residence or identity of such Holder or beneficial owner or an appropriate tax file number, Australian Business Number, or other number or exemption details 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 to which such Holder or beneficial owner is entitled;
(3) any Note presented for payment (where Notes are in the form of definitive registered Notes and presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 30-day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction payment of principal or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes imposed in connection with interest on a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect made to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such Taxes fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been imposed on such payments entitled to the Additional Amounts had such holder beneficiary, settlor, member or beneficial owner been the sole beneficial owner actual Holder of such Note;
(5) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes (not being a tax on income, profits or gains);
(6) any Taxes imposed or calculated by reference to net income or profits;
(7) any Taxes imposed or withheld by reason of such Holder being an Offshore Associate of the Issuer or any of the Note Guarantors (other than as a result of the transactions contemplated by clause 8 of the Restructuring Support Agreement) or by reason of the Australian Commissioner of Taxation giving a direction to the Issuer or Note Guarantor under section 255 of the Income Tax Assessment Act of 1936 of Australia or section 260-5 of Schedule 1 of the Taxation ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ of Australia; or
(8) any Taxes that are combination of items (1) through (7) above. In addition, any amounts to be paid on the Notes will be paid net of any deduction or withholding imposed or required pursuant to current Section Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any current or future regulations promulgated thereunder, any or official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(11471(b) of the Code (Code, or any amended fiscal or successor version described above); orregulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code, and no additional amounts will be required to be paid on account of any such deduction or withholding.
(9c) any combination of clauses (1) through (8) above. In addition to the foregoing, the The Issuer and the Note Guarantors will also pay and indemnify the holder Holder, the Trustee and the Paying and Transfer Agent for any present or future stampstamp duty, issue, registration, value added, transfer, court or documentary Taxestaxes, or any other excise or property taxes, charges or similar Taxes which are levied by any Tax Jurisdiction on the execution, delivery, registration or enforcement of any of the Notes, this Indenture, any Note Guarantee, any Security Document or any other document or instrument referred to therein, including but limited to the attorneys’ fees and costs of defending any claim or bringing any claim to enforce the indemnification or other obligations of the Issuer and the Note Guarantors, but excluding taxes, charges or similar levies imposed by any jurisdiction other than (i) Australia (including States and Territories of Australia), (ii) any jurisdiction in which a Note Guarantor is organized or is otherwise a resident for tax purposes, (iii) the jurisdiction in which any successor of the Issuer or a Note Guarantor is organized or resident for tax purposes, (iv) any jurisdiction in which such taxes are levied due to the Issuer’s, a Note Guarantor’s or a successor’s activities in or connection with such jurisdiction, or (v) any jurisdiction in which a Paying and Transfer Agent is located, and the Issuer will agree to indemnify the Holders, the Trustee and the Paying and Transfer Agent for any such taxes properly paid by the Holders. The Issuer and the Note Guarantors will indemnify and hold harmless each Holder for the amount of (i) any Taxes not withheld or deducted by the Issuer or any Note Guarantor and levied or imposed and paid by such Holder as a result of payments made under or with respect to the Notes, (ii) any liability (including penalties, interest and additions to tax related theretoexpenses) which are levied by any jurisdiction on the execution, delivery, issuance, arising therefrom or registration of any of the Notes, the Indenture, any Note Guarantee or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, and (iii) any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, imposed with respect to any such Taxes imposed in a Tax Jurisdiction that are not excluded reimbursement under clauses (1i) or (ii) above.
(d) The Issuer and the Note Guarantors will also pay and indemnify the Holder against, and must pay the Holder on demand an amount equal to, any liability or cost which the Holder determines in good faith will be or has been (directly or indirectly) suffered by the Holder for on account of Tax (excluding any Taxes described in Section 4.17(a)(1) through (38) hereof) that has arisen as a consequence of Taxes which should have been, but were not, withheld or (5) through (9) above or any combination thereof)deducted in accordance with this Section 4.17.
(be) If the Issuer or any Note 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 Note Guarantee, the Issuer or the relevant Note Guarantor, as the case may be, 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 after the 30th day prior to that payment datePayment Date, in which case the Issuer or the relevant Note Guarantor shall notify the Trustee promptly thereafter) an Officer’s Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Officers’ Certificate must also set forth any other information reasonably necessary to enable the Paying Agents and Transfer Agent to pay Additional Amounts to Holders on the relevant payment datePayment Date. The Trustee shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. The Issuer or the relevant Note Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Amounts and the Trustee shall be entitled will make such documentation available to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessaryHolders.
(cf) The Issuer Issuer, or the Paying and Transfer Agent on its behalf, or the relevant Guarantor, if it is the applicable withholding agent, Note Guarantor will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Upon request, the Issuer or the relevant Note Guarantor will use its reasonable efforts provide to obtain Tax the Trustee an official receipt or, if official receipts from each Tax authority are not obtainable, other documentation satisfactory to the Trustee evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), withheld within 60 30 days after the date the payment of any Taxes so deducted is due. The Issuer or withheld is madethe relevant Note Guarantor (as the case may be) will attach to each certified copy or other document a certificate stating the amount of such Taxes paid per US$1,000 principal amount of the Notes then outstanding. Upon request, certified copies of Tax those receipts evidencing payment by the Issuer or a Guarantorother documentation, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory will be made available by the Trustee to the Trustee) by such entityHolders.
(dg) Whenever in the this Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note GuaranteeGuarantee (as the case may be), such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(eh) The preceding above obligations will survive any termination, defeasance or discharge of the Indenture, this Indenture and any transfer by a holder Holder or beneficial owner of its Notes, Notes and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person person to the Issuer (or any Guarantor) Note Guarantor is incorporated, engaged in business, organized or resident for tax purposes, purposes or any jurisdiction from or through which such person makes any payment is made under or with respect to on the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, and any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (Enduro SpA), Indenture (Emeco Parts Pty LTD)
Additional Amounts. (a) All payments made by or on behalf As it applies to the Notes, Section 10.19 of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee Original Indenture shall be made free amended by:
(i) deleting the word “Brazil” throughout such Section 10.19 and clear replacing it with the expression “Taxing Jurisdiction” (as defined in Section 1.02 of and without this Fifth Supplemental Indenture);
(ii) adding the phrase, “, levies” after the phrase, “deduction or withholding or deduction for, or on account of, for any present or future Taxes unless taxes” in the withholding or deduction first sentence of such Taxes is then required by law. If Section 10.19;
(iii) deleting the Issuerphrase, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for“who, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to any such tax, assessment or other governmental charge, is not resident in Brazil” in the Notes first sentence of such Section 10.19;
(iv) deleting the proviso to the first sentence of such Section 10.19 that includes clauses (1)-(7) thereof and ends with the phrase, “who would not have been entitled to such Additional Amounts had it been the Holder or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantorbeneficial owner, as applicablethe case may be, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after Security” and replacing such withholding or deduction shall equal proviso with the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deductionfollowing: “; provided, however, that no the Company shall not be required to make any payment of Additional Amounts shall be payable with respect tothat is imposed due to any of the following:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder Holder or the beneficial owner of Trustee has a connection with the Taxing Jurisdiction other than merely holding the Notes or receiving principal or interest payments on the Notes (such as citizenship, nationality, residence, domicile, or existence of a business, a permanent establishment, a dependent agent, a place of business or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor place of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other management present or former connection with deemed present within the relevant Tax Taxing Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee);
(2) any Taxestax imposed on, or measured by, net income;
(3) such Holder or the Trustee fails to comply with any certification, identification or other reporting requirements concerning its nationality, residence, identity or connection with the Taxing Jurisdiction, if (x) such compliance is required by applicable law, regulation, administrative practice or treaty as a precondition to exemption from all or a part of the tax, levy, deduction or other governmental charge, (y) such Holder or the Trustee is able to comply with such requirements without undue hardship and (z) at least 30 calendar days prior to the extent first payment date with respect to which such Taxes were imposed as a result of requirements under the presentation of a Note for payment applicable law, regulation, administrative practice or treaty will apply, the Company has notified all Holders that they will be required to comply with such requirements;
(4) such Holder or the Trustee fails to present (where presentation is required) more than its Note within 30 calendar days after the relevant payment is first Company has made available for to such Holder or the Trustee a payment to under the holder (except to the extent Notes and this Indenture, provided that the holder Company will pay Additional Amounts which a Holder or the Trustee would have been entitled to Additional Amounts had the Note owned by such Holder or the Trustee been presented on any day (including the last day of day) within such 30 calendar day period);
(35) any estate, inheritance, gift, salevalue added, transfer, personal property use or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes sales taxes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notessimilar taxes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information assessments or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;governmental charges; or
(6) any Taxes such taxes, levies, deductions or other governmental charges are imposed in connection with on a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder or beneficial owner of the Notes to an individual and are required to be made pursuant to any European Union Council Directive implementing the extent such Taxes could have been avoided by presenting conclusions of the relevant Note ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income, or any law implementing or complying with, or introduced in order to conform to, or otherwise accepting payment from, another Paying Agentsuch directive;
(7) any Taxes imposed where such Holder or the Trustee could have avoided such taxes, levies, deductions or other governmental charges by requesting that a payment on the Notes be made by, or with respect to any presenting the relevant notes for payment by the Issuer or any to, another paying agent of the Guarantors to the holder Company located in a member state of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above)European Union; or
(98) where the Holder or the Trustee would have been able to avoid the tax, levy, deduction or other governmental charge by taking reasonable measures available to such Holder or the Trustee .”
(v) any combination adding the following new paragraph at the end of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also Section 10.19: “The Company shall promptly pay and indemnify the holder for when due any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, taxes or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which that are levied imposed by a Taxing Jurisdiction that arise from any jurisdiction on payment under the Notes or under any other document or instrument referred herein or therein or from the execution, delivery, issuance, enforcement or registration of any of the Notes, the Indenture, any each Note Guarantee or any other document or instrument referred to herein or therein, or . The Company shall indemnify and make whole the receipt of any payments with respect thereto, or enforcement of, any Holders of the Notes for any present or future stamp, court or documentary taxes or any Note Guarantee (limitedother excise or property taxes, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) charges or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be similar levies 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) provided in this paragraph paid by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount Holder of the Notes Notes. The Company shall, if European Council Directive 2003/48/EC or of principal, interest or of any other amount payable under, or with respect to, any Directive implementing the conclusions of the Notes or any Note GuaranteeECOFIN council meeting of November 26-27, such mention shall be deemed to include mention 2000 is brought into force, ensure that it maintains a paying agent hereunder in a member state of the payment of Additional Amounts European Union that will not be obliged to the extent that, in withhold or deduct tax pursuant to such context, Additional Amounts are, were or would be payable in respect thereofDirective.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.”
Appears in 2 contracts
Sources: Supplemental Indenture (Brazilian Petroleum Corp), Supplemental Indenture (Brazilian Petroleum Corp)
Additional Amounts. (a) All payments of principal of, premium, if any, and interest on Securities of any series to a Holder thereof who is not a United States person, and all payments on the Guarantees to a Holder thereof who is not a United States person shall be made without set-off, counterclaim, fees, liabilities or similar deductions (including payments on redemption, repayment and the exercise of either the Cash Settlement Option or the Stock Settlement Option), and free and clear of, and without deduction or withholding for, taxes, levies, imposts, duties, assessments, charges or fees of whatsoever nature now or hereafter imposed, levied, collected, deducted, withheld or assessed by or on behalf of the Issuer Government of the United States, or any of the Guarantors state or other political subdivision or taxing authority thereof or therein (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law"Taxes"). If the IssuerCompany, any Guarantor the Guarantor, ----- or any other applicable withholding agent of either is required by law or regulation to withhold make any deduction or deduct any amount for, withholding for or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitationTaxes, the jurisdiction of any Paying Agent) Company or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicablethe case may be, shall pay such additional amounts (the “"Additional Amounts”") as may shall be ------------------ necessary in order that the net amounts received and retained in respect by the Holders of such payments by each beneficial owner the Securities of Notes any series who are not United States persons after such deduction or 77 withholding or deduction shall equal the respective amounts amount that would have been received and retained in respect of such payments receivable thereunder in the absence of such withholding deduction or deduction; providedwithholding, however, except that no such Additional Amounts shall be payable with respect toon account of:
(1a) any Taxes, to the extent such Taxes Tax which would not have been so imposed but for (i) the holder existence of any present or the beneficial owner of the Notes former connection between such Holder (or between a fiduciary, settlor, beneficiary, partner ofmember, member or shareholder of, of or possessor of a power over, the relevant holderover such Holder, if the relevant holder such Holder is an estate, a trust, nomineea partnership or a corporation) and the United States or any political subdivision or taxing authority thereof or therein, partnershipincluding, limited liability company without limitation, such Holder (or corporationsuch fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident of the United States or national oftreated as a resident thereof, or incorporated, engaged in a trade or business in, being or having been physically engaged in trade or business or present in therein, or having had a permanent establishment intherein, the relevant Tax Jurisdiction or having or having had any other (ii) such Holder's present or former connection status as a personal holding company, a foreign personal holding company with respect to the relevant Tax JurisdictionUnited States, other than any connection arising solely from the acquisitiona controlled foreign corporation, ownership or disposition of Notesa passive foreign investment company, the exercise or enforcement of rights under such Note, the Indenture or a Note Guaranteeforeign private foundation or foreign tax exempt entity for United States tax purposes, or a corporation which accumulates earnings to avoid United States Federal income tax, or (iii) such holder's status as a bank extending credit pursuant to a loan agreement entered into in the receipt ordinary course of payments in respect of such Note or a Note Guaranteebusiness;
(2b) any Taxes, to the extent such Taxes were Tax which would not have been so imposed as a result of but for the presentation by the Holder of a Note such Security or any Coupon appertaining thereto for payment (where presentation is required) on a date more than 30 15 days after the relevant date on which such payment became due and payable or the date on which payment thereof is first made available for payment to the holder (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period)duly provided for, whichever occurs later;
(3c) any estate, inheritance, gift, salesales, transfer, personal property or similar TaxesTax;
(4d) any Taxes Tax which would not have been imposed but for the failure to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of such Security or any Coupon appertaining thereto, if compliance is required by statute or by regulation or ruling of the United States Treasury Department as a precondition to exemption from such Tax;
(e) any Tax which is payable other otherwise than by deduction or withholding from payments underof principal of, premium, if any, or with respect to, the Notes or any Note Guarantee;
interest on such Security; (5f) any Taxes to the extent such Taxes would not have been Tax imposed as a result of a Person's past or withheld but for the failure present actual or constructive ownership, including by virtue of the holder right to convert Securities, of 10% or beneficial owner more of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice total combined voting power of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate all classes of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 stock of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be Company entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.vote;
Appears in 2 contracts
Sources: Indenture (Thermo Electron Corp), Indenture (Thermo Electron Corp)
Additional Amounts. (a) All payments made by or on behalf of the Issuer Company or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes (whether or not in the form of Definitive Registered Notes) or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1i) any jurisdiction (other than the United States) in which the Issuer Company or any Guarantor (including any successor entity), is or was then incorporated, engaged in business, organized or resident for tax purposes or any political subdivision or governmental authority thereof or therein or (2ii) any jurisdiction from or through which any payment is made by or on behalf of the Issuer Company or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision or governmental authority thereof or therein (each of (1i) and (2ii), a “Tax Jurisdiction”) in respect of ), will at any time be required to be made from any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer Company or the relevant GuarantorGuarantor or other payor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each Holder or beneficial owner of Notes (including Additional Amounts) after such withholding withholding, deduction or deduction shall imposition will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
: (1i) any Taxes, to the extent such Taxes would not have been imposed but for the holder Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder, if the relevant holder Holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged incorporated in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction in which such Taxes are imposed or having or having had any other present or former connection with the relevant Tax Jurisdiction, Jurisdiction other than any connection arising solely from the acquisition, ownership acquisition or disposition holding of such Notes, the exercise or enforcement of rights under such Note, Note or the Indenture or under a Note Guarantee, Guarantee or the receipt of payments in respect of such Note or a Note Guarantee;
; (2ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
; (3iii) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
; (4iv) any Taxes imposed as result of any Note 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 the relevant Note to another Paying Agent in a member state of the European Union; (v) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any Note Guarantee;
; (5vi) any Taxes to the extent such Taxes would not have been are imposed or withheld but for by reason of the failure of the holder Holder or beneficial owner of the Notes, following the IssuerCompany’s reasonable written request addressed to the holder Holder or beneficial owner at least 60 days before any such withholding or deduction would be imposedpayable to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible entitled to provide such certification or documentation;
; (6vii) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) withheld by or on behalf reason of a holder the failure of the Holder or beneficial owner of the Notes to comply with the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any requirements of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) ), as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations promulgated thereunder, the U.S. Treasury Regulations issued thereunder or any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (interpretation thereof or any related law or administrative practices or procedures) implementing the foregoing or any agreements agreement entered into pursuant to current Section 1471(b)(1) 1471 of the Code Code; or (or any amended or successor version described above); or
(9viii) any combination of clauses (1i) through (8) vii) above. .
(b) In addition to the foregoing, the Issuer Company and the Guarantors will also pay and indemnify the holder Holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax any other liabilities related thereto) which are levied by any jurisdiction Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof)Guarantee.
(bc) If the Issuer Company 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 Note Guarantee, the Issuer Company or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer Company or the relevant Guarantor shall notify the Trustee in writing 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 Certificates 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 Issuer Company or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary, and may conclusively presume that no payments are necessary unless and until it receives any such Officer’s Certificate.
(cd) The Issuer Company or the relevant Guarantor, if it is the applicable withholding agent, Guarantor will make all withholdings and deductions (within the time periodperiod and in the minimum amount) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer Company 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 Issuer Company or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 Issuer Company 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 (reasonably satisfactory to the Trustee) by such entity.
(de) Whenever in the Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f) The obligations described under Sections 4.01(c), (d), (e) The preceding obligations and (f) of the Indenture will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (Company or any Guarantor) Guarantor is incorporated, engaged in business, organized business for tax purposes or resident for tax purposes, purposes or any jurisdiction from or through which such Person makes any payment is made under or with respect to on the Notes (or any Note Guarantee) by and any department or on behalf of such Person and, in each case, any political subdivision or taxing authority or agency thereof or thereintherein having the power to tax.
Appears in 2 contracts
Sources: Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD)
Additional Amounts. (a) All payments made by or on behalf of the Issuer Company or any of the Guarantors Guarantor (including, in each case, any successor entity) ), including amounts payable upon redemption, repurchase or conversion, under or with respect to the Notes or any Note the Guarantee shall will be made free and clear of and without withholding or deduction for, or on account of, any present or future Taxes taxes unless the withholding or deduction of such Taxes taxes is then required by law. If the IssuerCompany, any the Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer Company or any the Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer Company or any the Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments or delivery under or with respect to the Notes or any Note the Guarantee, including, without limitation, payments of principal, redemption priceTax Redemption Price, Optional Redemption Price, purchase price, interest or premium, the Issuer or the relevant amount due upon an exchange, the Company or the Guarantor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments or delivery by each beneficial owner of Notes Holder after such withholding or deduction shall will equal the respective amounts that would have been received and retained by such Holder in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
(1) A. any Taxestaxes, to the extent such Taxes taxes would not have been imposed but for the holder Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder or beneficial owner, if the relevant holder Holder or the beneficial owner is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having or having had a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the this Indenture or a Note the Guarantee, or the receipt of payments in respect of such Note or a Note the Guarantee;
(2) B. any Taxestaxes, to the extent such Taxes taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) C. any estate, inheritance, gift, sale, transfer, personal property or similar Taxestaxes;
(4) D. any Taxes taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note the Guarantee;
(5) E. any Taxes taxes to the extent such Taxes taxes would not have been imposed or withheld but for the failure of the holder Holder or beneficial owner of the Notes, following the IssuerCompany’s reasonable written request addressed to the holder Holder at least 60 30 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) F. any Taxes taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder Holder or beneficial owner of the Notes to the extent such Taxes taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agentpaying agent;
(7) G. any Taxes taxes imposed on or with respect to any payment by the Issuer Company or any of the Guarantors Guarantor to the holder Holder of the Notes if such holder Holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes taxes would not have been imposed on such payments had such holder Holder been the sole beneficial owner of such Note;
(8) H. any Taxes taxes imposed by the United States, any state thereof or the District of Columbia or any subdivision thereof or territory thereof, including any U.S. federal withholding taxes and any taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) I. any combination of clauses A through H above.
(1b) through (8) above. In addition to the foregoing, the Issuer Company and the Guarantors Guarantor will also pay and indemnify the holder Holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxestaxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the this Indenture, any Note the Guarantee or any other document referred to therein, or the receipt of any payments payments, with respect thereto, or enforcement of, any of the Notes or any Note the Guarantee (limited, solely in the case of Taxes taxes attributable to the receipt of any payments, or that are imposed on or result from a sale or other transfer or disposition of a Note by a Holder or a beneficial owner, to any such Taxes taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) A through (3) C or (5) E through (9) I above or any combination thereof), save in each case for any United Kingdom stamp duty which arises or is increased as a result of any document effecting the registration, issue or delivery of any of the notes either being signed or executed in the United Kingdom or being brought into the United Kingdom (save in each case where it was required by law or for the purposes of enforcing the notes to do so).
(bc) If the Issuer Company or any the 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 Note the Guarantee, the Issuer Company or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer Company or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates 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 Issuer Company or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(cd) The Issuer Company or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer Company or the relevant Guarantor will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes taxes so deducted or withheld. The Issuer Company or the relevant Guarantor will furnish to the Trustee (or to a Holder of the Notes upon request), within 60 days after the date the payment of any Taxes taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuer Company or a the Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trusteetrustee) by such entity.
(de) Whenever in the this Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note the Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(ef) The preceding obligations This Section 4.07 will survive any termination, defeasance or discharge of the this Indenture, any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person person to the Issuer Company (or any the Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note the Guarantee) by or on behalf of such Person person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (Norwegian Cruise Line Holdings Ltd.), Indenture (Norwegian Cruise Line Holdings Ltd.)
Additional Amounts. (a) All payments made by or on behalf Unless otherwise specified in any Officer's Certificate of the Issuer Company setting forth the terms of Securities of a series in accordance with Section 301, if any deduction or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall be made free and clear of and without withholding or deduction for, or on account of, for any present or future Taxes unless the withholding taxes, assessments or deduction other governmental charges of such Taxes is then required by law. If the IssuerThe Netherlands, The Hellenic Republic or, if applicable, any Guarantor other jurisdiction, (including any political subdivision or any other applicable withholding agent is required by law to withhold taxing authority thereof or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United Statestherein) in which either the Issuer Company or the Guarantor is incorporated shall at any time be required by such jurisdictions (or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any such political subdivision or taxing authority thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”therein) in respect of any payments under amounts to be paid by the Company or with respect the Guarantor relating to principal of or interest on a Security of any series or the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premiumGuarantees thereon, the Issuer Company or the relevant Guarantor, as applicablethe case may be, shall will pay as additional interest to the Holder of such Security such additional amounts (the “Additional Amounts”) amounts, as may be necessary in order that the net amounts received and retained in respect paid to such Holder pursuant to the terms of such payments by each beneficial owner of Notes the Security or the Guarantees, after such withholding deduction or deduction withholding, shall equal the respective be not less than such additional amounts that as such Holder would have been received and retained in respect of such payments in the absence of such withholding or deductionotherwise be entitled to receive; provided, however, that no Additional Amounts such additional amounts shall be payable only to Holders (a) that are not resident in The Netherlands for purposes of its tax, (b) that are not resident in The Hellenic Republic for purposes of its tax and do not have a Greek Tax Registration Number (AFM), and (c) if applicable, that are not resident for tax purposes and are not registered with respect tothe tax authorities in any other applicable jurisdiction (or any such political subdivision or taxing authority thereof or therein) in which the Company or the Guarantor or any successor thereto may be incorporated; and provided, further, that neither the Company nor the Guarantor shall be required to make any payment of additional amounts for or on account of:
(1) any Taxestax, to the extent such Taxes assessment or other governmental charge which would not have been imposed but for the holder existence of any present or the beneficial owner of the Notes former connection between such Holder (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, trust, nominee, partnership, limited liability company partnership or corporation) and the applicable jurisdiction, or any political subdivision or territory or possession thereof or therein or area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or national of, treated as a resident thereof or incorporated, there having been present or engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction therein or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;permanent establishment therein,
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, salesales, transfer, stamp, personal property or similar Taxes;tax, assessment or other governmental charge,
(3) any tax, assessment or other governmental charge which is payable other than by withholding from payments of (or in respect of) principal of, premium, if any or any interest on, the Securities,
(4) any Taxes payable tax, assessment or other than governmental charge required to be withheld by deduction or withholding any Paying Agent from payments underany payment of principal, premium, if any, or with respect toany interest on, the Notes or any Note Guarantee;Security, if such payment can be made without such withholding by any other Paying Agent,
(5) any Taxes to the extent such Taxes tax, assessment or other governmental charge which would not have been imposed or withheld but if such Holder had made a timely and accurate declaration of non-residence or other similar claim for exemption or present any applicable form or certificate, upon the failure making or presentation of the holder which that Holder would either have been able to avoid such tax, assessment or beneficial owner charge or to obtain a refund of the Notessuch tax, following the Issuer’s reasonable written request addressed assessment or charge, including certification or documentation to the holder at least 60 days before any effect that such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not a resident in and lacks other connections with the Tax Jurisdiction)applicable jurisdiction, but in each caseas the case may be, only or had made any other declaration or satisfied any other information requirements required to the extent the holder avoid such tax assessment or beneficial owner is legally eligible to provide such certification or documentation;other governmental charge,
(6) any Taxes tax, assessment or other governmental charge which would not have been imposed in connection with but for the presentation of a Note presented for payment Security (where presentation is permitted required) for payment on a date more than 30 days after the date on which such payment became due and payable or required for payment) by or the date on behalf of a holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note towhich payment thereof was duly provided for, or otherwise accepting payment from, another Paying Agent;whichever occurred later,
(7) any Taxes imposed on payment under or with respect to a Security to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder Holder that is a fiduciary or partnership or any person other than the sole beneficial owner of such payment or Security, to the extent that a beneficiary or settlor with respect to such Taxes fiduciary, a member of such partnership or the beneficial owner of such payment or Security would not have been imposed on such payments entitled to the additional amounts had such holder beneficiary, settlor, member or beneficial owner been the sole beneficial owner actual Holder of such Note;Security,
(8) any Taxes that are imposed withholding tax required to be deducted by the Company or the Guarantor from any amounts to be paid by Company or the Guarantor under the Securities or the Guarantees, as the case may be, pursuant to current Section 1471 through 1474 the European Union Directive on the taxation of savings implementing the conclusions of the Internal Revenue Code European Council of 1986Economic and Finance Ministers ("ECOFIN") meeting on June 3, as amended (the “Code”) 2003, or any amended law implementing or successor version that is substantively comparable and not materially more onerous to comply complying with, any regulations promulgated thereunderor introduced in order to conform to, any official interpretations thereofsuch Directive, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses the items (1), (2), (3), (4), (5), (6), (7) through and (8) above. In addition If applicable to the foregoingrelevant series of Securities, the Issuer and the Guarantors will also pay and indemnify the holder foregoing provisions shall apply mutatis mutandis to any withholding or deduction for or on account of any present or future stamptaxes, issue, registration, value added, transfer, court assessments or documentary Taxesgovernmental charges of whatever nature of any jurisdiction in which any successor Person to the Company or the Guarantor is organized, or any other excise political subdivision or property taxestaxing authority thereof or therein; provided, charges further, however, that such payment of additional amounts may be subject to such further exceptions as may be established in the terms of such Securities or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on Guarantees. If the execution, delivery, issuance, or registration of any terms of the NotesSecurities of a series provide for the payment of additional amounts, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable at least 10 days prior to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment under of principal and any premium or interest if there has been any change with respect to the Notes matters set forth in the below-mentioned Officer's Certificate, the Company will furnish the Trustee and the Company's principal Paying Agent or Paying Agents, if other than the Trustee, with an Officer's Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal and any Note Guaranteepremium or interest on the Securities of that series shall be made to Holders of Securities of that series without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of that series. If any such withholding shall be required, then such Officer's Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders, specify by country any additional amounts payable and the Issuer or the relevant Guarantor, as the case may be, will deliver pay to the Trustee on a date that is at least 30 days prior or such Paying Agent or Paying Agents the additional amounts required by this Section. Each of the Company and the Guarantor covenant to the date indemnify each 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 relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated any Paying Agent for, and 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment hold each of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect tothem harmless against, any loss, liability or expense reasonably and properly on their part arising out of the Notes or in connection with actions taken or omitted by any Note Guaranteeof them in reliance on any Officer's Certificate furnished pursuant to this Section, such mention shall be deemed to include mention of the payment of Additional Amounts except to the extent thatthat any such loss, in such context, Additional Amounts are, were liability or would be payable in respect thereofexpense is due to its own negligence or bad faith.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (Coca-Cola Hellenic Bottling Co Sa), Indenture (Coca-Cola Hellenic Bottling Co Sa)
Additional Amounts. (a) All payments made or deemed to be made by or on behalf of the Issuer or any of the Guarantors (including, in each caseIssuer, any successor entity) Note Guarantor as well as all payments made or deemed to be made by the Trustee pursuant to the provisions of Sections 8.01 and 8.06 under or with respect to the Notes or with respect to any Note Guarantee shall Guarantee, will be made free and clear of and without withholding or deduction for, or on account of, any present or future Taxes taxes, levies, imposts, duties, assessments or other governmental charges of whatever nature, including related penalties, interest and other liabilities (“Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the Issuer (including any Successor Issuer) is then incorporated, organized or resident for tax purposes or any political subdivision thereof or therein (a “Relevant Tax Jurisdiction”), (ii) any jurisdiction in which any Note Guarantor is then incorporated, organized or resident for tax purposes or any political subdivision thereof or therein (including any Successor Note Guarantor), or (iii) any jurisdiction from or through which payment is made by or on behalf of the Issuer or any Note Guarantor (including, without limitation, the jurisdiction of any Paying and Transfer Agent) or any political subdivision thereof or therein (each of (i), (ii) and (iii), a “Tax Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law. law or the interpretation or administration thereof.
(b) If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or Tax Jurisdiction will at any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction time be required to be made from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments made or deemed to be made under or with respect to the Notes or with respect to any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or Issuer, the relevant GuarantorNote Guarantor or other payor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes Holder (including Additional Amounts) after such withholding withholding, deduction or deduction shall imposition of Taxes will equal the respective amounts that would have been received and retained in respect of such payments or deemed payments in the absence of such withholding or deductiondeduction of Taxes; provided, however, that no Additional Amounts shall will be payable with respect to:
(1) any Taxes, to the extent such Taxes that would not have been imposed but for the holder Holder of a Note or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) Note being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present incorporated in or having maintaining a permanent establishment or physical presence in, the relevant Tax Jurisdiction in which such Taxes are imposed, or carrying on a business or having or having had any other present or former connection with the relevant Tax Jurisdiction, Jurisdiction other than any connection arising solely from as a result of the mere acquisition, ownership holding, enforcement or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments payment in respect of such Note or a any Note Guarantee;
(2) any Taxes, to the extent such Taxes were that are imposed or withheld as a result of the presentation failure of the Holder or beneficial owner of a Note to comply with any timely reasonable written request, made to that Holder or beneficial owner, by the Issuer or any of the Note Guarantors to provide timely and accurate information concerning the nationality, residence or identity of such Holder or beneficial owner or an appropriate tax file number, Australian Business Number, or other number or exemption details 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 to which such Holder or beneficial owner is entitled;
(3) any Note presented for payment (where Notes are in the form of definitive registered Notes and presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 30-day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction payment of principal or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes imposed in connection with interest on a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect made to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such Taxes fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been imposed on such payments entitled to the Additional Amounts had such holder beneficiary, settlor, member or beneficial owner been the sole beneficial owner actual Holder of such Note;
(5) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes (not being a tax on income, profits or gains);
(6) any Taxes imposed or calculated by reference to net income or profits;
(7) any Taxes imposed or withheld by reason of such Holder being an Offshore Associate of the Issuer or any of the Note Guarantors (other than as a result of the transactions contemplated by clause 7 of the Restructuring Support Agreement) or by reason of the Australian Commissioner of Taxation giving a direction to the Issuer or Note Guarantor under section 255 of the Income Tax Assessment Act of 1936 of Australia or section 260-5 of Schedule 1 of the Taxation ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ of Australia; or
(8) any Taxes that are combination of items (1) through (7) above. In addition, any amounts to be paid on the Notes will be paid net of any deduction or withholding imposed or required pursuant to current Section Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any current or future regulations promulgated thereunder, any or official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(11471(b) of the Code (Code, or any amended fiscal or successor version described above); orregulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code, and no additional amounts will be required to be paid on account of any such deduction or withholding.
(9c) any combination of clauses (1) through (8) above. In addition to the foregoing, the The Issuer and the Note Guarantors will also pay and indemnify the holder Holder, the Trustee and the Paying and Transfer Agent for any present or future stampstamp duty, issue, registration, value added, transfer, court or documentary Taxestaxes, or any other excise or property taxes, charges or similar Taxes which are levied by any Tax Jurisdiction on the execution, delivery, registration or enforcement of any of the Notes, this Indenture, any Note Guarantee, any Security Document or any other document or instrument referred to therein, including but limited to the attorneys’ fees and costs of defending any claim or bringing any claim to enforce the indemnification or other obligations of the Issuer and the Note Guarantors, but excluding taxes, charges or similar levies imposed by any jurisdiction other than (i) Australia (including States and Territories of Australia), (ii) any jurisdiction in which a Note Guarantor is organized or is otherwise a resident for tax purposes, (iii) the jurisdiction in which any successor of the Issuer or a Note Guarantor is organized or resident for tax purposes, (iv) any jurisdiction in which such taxes are levied due to the Issuer’s, a Note Guarantor’s or a successor’s activities in or connection with such jurisdiction, or (v) any jurisdiction in which a Paying and Transfer Agent is located, and the Issuer will agree to indemnify the Holders, the Trustee and the Paying and Transfer Agent for any such taxes properly paid by the Holders. The Issuer and the Note Guarantors will indemnify and hold harmless each Holder for the amount of (i) any Taxes not withheld or deducted by the Issuer or any Note Guarantor and levied or imposed and paid by such Holder as a result of payments made under or with respect to the Notes, (ii) any liability (including penalties, interest and additions to tax related theretoexpenses) which are levied by any jurisdiction on the execution, delivery, issuance, arising therefrom or registration of any of the Notes, the Indenture, any Note Guarantee or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, and (iii) any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, imposed with respect to any such Taxes imposed in a Tax Jurisdiction that are not excluded reimbursement under clauses (1i) or (ii) above.
(d) The Issuer and the Note Guarantors will also pay and indemnify the Holder against, and must pay the Holder on demand an amount equal to, any liability or cost which the Holder determines in good faith will be or has been (directly or indirectly) suffered by the Holder for on account of Tax (excluding any Taxes described in Section 4.17(a)(1) through (38) hereof) that has arisen as a consequence of Taxes which should have been, but were not, withheld or (5) through (9) above or any combination thereof)deducted in accordance with this Section 4.17.
(be) If the Issuer or any Note 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 Note Guarantee, the Issuer or the relevant Note Guarantor, as the case may be, 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 after the 30th day prior to that payment datePayment Date, in which case the Issuer or the relevant Note Guarantor shall notify the Trustee promptly thereafter) an Officer’s Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Officers’ Certificate must also set forth any other information reasonably necessary to enable the Paying Agents and Transfer Agent to pay Additional Amounts to Holders on the relevant payment datePayment Date. The Trustee shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. The Issuer or the relevant Note Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Amounts and the Trustee shall be entitled will make such documentation available to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessaryHolders.
(cf) The Issuer Issuer, or the Paying and Transfer Agent on its behalf, or the relevant Guarantor, if it is the applicable withholding agent, Note Guarantor will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Upon request, the Issuer or the relevant Note Guarantor will use its reasonable efforts provide to obtain Tax the Trustee an official receipt or, if official receipts from each Tax authority are not obtainable, other documentation satisfactory to the Trustee evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), withheld within 60 30 days after the date the payment of any Taxes so deducted is due. The Issuer or withheld is madethe relevant Note Guarantor (as the case may be) will attach to each certified copy or other document a certificate stating the amount of such Taxes paid per US$1,000 principal amount of the Notes then outstanding. Upon request, certified copies of Tax those receipts evidencing payment by the Issuer or a Guarantorother documentation, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory will be made available by the Trustee to the Trustee) by such entityHolders.
(dg) Whenever in the this Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note GuaranteeGuarantee (as the case may be), such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(eh) The preceding above obligations will survive any termination, defeasance or discharge of the Indenture, this Indenture and any transfer by a holder Holder or beneficial owner of its Notes, Notes and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person person to the Issuer (or any Guarantor) Note Guarantor is incorporated, engaged in business, organized or resident for tax purposes, purposes or any jurisdiction from or through which such person makes any payment is made under or with respect to on the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, and any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (Emeco Parts Pty LTD), Indenture (Enduro SpA)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Additional Amounts. (a) All payments made by or on behalf Unless otherwise specified in any Board Resolution of the Issuer or the Guarantor establishing the terms of Securities of a series or the Guarantees relating thereto in accordance with Section 301, if any of the Guarantors (including, in each case, any successor entity) under deduction or with respect to the Notes or any Note Guarantee shall be made free and clear of and without withholding or deduction for, or on account of, for any present or future Taxes unless taxes, assessments or other governmental charges of the withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor jurisdiction (or any other applicable withholding agent is required by law to withhold political subdivision or deduct any amount for, taxing authority thereof or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United Statestherein) in which the Issuer or any the Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes shall at any time be required by such jurisdiction (or any such political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”taxing authority) in respect of any payments amounts to be paid by the Issuer of principal of or interest on a Security of any series, or by the Guarantor under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premiumGuarantees, the Issuer or the relevant Guarantor, as applicablethe case may be, shall will pay to the Holder of a Security of such series such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect paid to such Holder of such payments by each beneficial owner of Notes Security who, with respect to any such tax, assessment or other governmental charge, is not resident in such jurisdiction, after such withholding deduction or deduction withholding, shall equal be not less than the respective amounts that would have been received and retained specified in respect of such payments in the absence of Security to which such withholding or deductionHolder is entitled; provided, however, that no Additional Amounts the Issuer or the Guarantor, as the case may be, shall not be payable with respect to:
required to make any payment of additional amounts (1i) for or on account of any such tax, assessment or governmental charge imposed by the United States or any political subdivision or taxing authority thereof or therein or (ii) for or on account of: (a) any Taxestax, to the extent such Taxes assessment or other governmental charge which would not have been imposed but for (i) the holder existence of any present or the beneficial owner of the Notes former connection between such Holder (or between a fiduciary, settlorsettler, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, trust, nominee, partnership, limited liability company partnership or corporation) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settler, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or national of, or incorporated, engaged in a trade or business in, being or having been physically present or engaged in trade or having a permanent establishment in, the relevant Tax Jurisdiction business therein or having or having had any other present a permanent establishment therein or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment Security of such series (where presentation is required) for payment on a date more than 30 days after the relevant date on which such payment became due and payable or the date on which payment thereof is first made available for payment to the holder duly provided for, whichever occurs later; (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3b) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
tax, assessment or other governmental charge; (4c) any Taxes tax, assessment or other governmental charge which is payable other otherwise than by deduction or withholding from payments underof (or in respect of) principal of, or with respect toany interest on, the Notes or any Note Guarantee;
Securities of such series; (5d) any Taxes to the extent such Taxes would not have been tax, assessment or other governmental charge that is imposed or withheld but for by reason of the failure of to comply by the holder Holder or the beneficial owner of the Notes, following Security of such series with a request of the Issuer’s reasonable written request Issuer or the Guarantor addressed to the holder at least 60 days before Holder (i) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make any such withholding declaration or deduction would be imposed, to comply with other similar claim or satisfy any certification, identification, information or other reporting requirements, whether which, in the case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of a Tax Jurisdiction, the taxing jurisdiction as a precondition to exemption fromfrom all or part of such tax, assessment or reduction in the rate other governmental charge; or (e) any combination of deduction or withholding of, Taxes imposed by the Tax Jurisdiction items (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdictiona), but in each case(b), only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6c) any Taxes imposed in connection with a Note presented for payment and (where presentation is permitted or required for paymentd) by or on behalf of a holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
above; nor shall additional amounts be paid (7i) any Taxes imposed on or with respect to any payment by of the Issuer principal of, or any interest on, any Security of the Guarantors such series to the holder of the Notes if such holder any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes payment would be required by the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settler with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been imposed on entitled to such payments additional amounts had such holder it been the sole beneficial owner Holder of such Note;
Security or (8) any Taxes that are imposed pursuant to current Section 1471 through 1474 ii) if the payment is in respect of a definitive Registered Security issued at the request of a holder of a Book-Entry Security following an Event of Default and at the time the payment is made definitive Registered Securities have not been issued in exchange for the entire principal amounts of the Internal Revenue Code Securities. (Sections 205, 803 and 1004). The foregoing provisions shall apply mutandis mutandis to any withholding or deduction for or on account of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, assessments or governmental charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by of whatever nature of any jurisdiction on the execution, delivery, issuance, or registration of in which any of the Notes, the Indenture, any Note Guarantee or any other document referred successor Person to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the Issuer or any the Guarantor, as the case may be, becomes aware is organized, or any political subdivision or taxing authority thereof or therein; provided, however, that it will such payment of additional amounts may be obligated subject to pay Additional Amounts with respect to any payment under or with respect such further exceptions as may be established in the terms of such Securities established as contemplated by Section 301. Subject to the Notes or any Note Guaranteeforegoing provisions, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, whenever in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the this Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principalany premium or interest on, interest or in respect of, any Security of any other amount payable under, series or with respect to, payment of any related coupon or the net proceeds received on the sale or exchange of the Notes or any Note GuaranteeSecurity of any series, such mention shall be deemed to include mention of the payment of Additional Amounts additional amounts provided for in this Section to the extent that, in such context, Additional Amounts additional amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will survive any termination, defeasance or discharge thereof pursuant to the provisions of this Section and express mention of the Indenturepayment 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. If the terms of the Securities of a series established as contemplated by Section 301 do not specify that additional amounts pursuant to the Section will not be payable by the Issuer or the Guarantor, at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any transfer by a holder or beneficial owner of its Notespremium is made), and will apply, mutatis mutandis, at least 10 days prior to each date of payment of principal and any jurisdiction in which premium or interest if there has been any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or change with respect to the Notes (matters set forth in the below-mentioned Officers' Certificate, the Issuer will furnish the Trustee and the Issuer's principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers' Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and any premium or interest on the Securities of that series shall be made to Holders of Securities of that series or any Note Guarantee) by related coupons without withholding for or on behalf account of any tax, assessment or other governmental charge described in the Securities of that series. If any such Person andwithholding shall be required, in then such Officers' Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities or coupons and the Issuer or the Guarantor, as the case may be, will pay to the Trustee or such Paying Agent or Paying Agents the additional amounts required by this Section. Each of the Issuer and the Guarantor covenant to indemnify each caseof the Trustee and any Paying Agent for, and to hold each of them harmless against, any political subdivision thereof loss, liability or thereinexpense 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, except to the extent that any such loss, liability or expense is due to its own negligence or bad faith.
Appears in 2 contracts
Sources: Indenture (Diageo Investment Corp), Indenture (Diageo PLC)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes Holder after such withholding or deduction shall will equal the respective amounts that would have been received and retained by each Holder in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1i) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder or beneficial owner, if the relevant holder Holder or beneficial owner is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the this Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2ii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3iii) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4iv) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5v) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder Holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder Holder at least 60 30 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible to provide such certification or documentation;
(6vi) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder Holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7vii) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder Holder of the Notes if such holder Holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder Holder been the sole beneficial owner of such Note;
(8) viii) any Taxes imposed by the United States, any state thereof or the District of Columbia, or any subdivision thereof or territory thereof, including any U.S. federal withholding taxes and any Taxes that are imposed pursuant to current Section Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9ix) any combination of clauses (1(i) through (8) (viii) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any paymentspayments or that are imposed on or result from a sale or other transfer or disposition of a Note by a Holder or a beneficial owner, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1(i) through (3(iii) or (5(v) through (9(ix) above or any combination thereof), save in each case for any such taxes, charges or levies which arise or are increased as a result of any document effecting the registration, issue or delivery of any of the notes either being signed or executed in the United Kingdom or being brought into the United Kingdom.
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will shall make all withholdings and deductions (within the time period) required by law and will shall remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer or the relevant Guarantor will shall use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will shall furnish to the Trustee (or to a Holder of the Notes upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the this Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will This Section 4.12 shall survive any termination, defeasance or discharge of the this Indenture, any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (Norwegian Cruise Line Holdings Ltd.), Indenture (Norwegian Cruise Line Holdings Ltd.)
Additional Amounts. (a) All payments made by or on behalf of the Issuer Company or any of the Guarantors Guarantor (including, in each case, any successor entity) ), including amounts payable upon redemption, repurchase or conversion, under or with respect to the Notes or any Note the Guarantee shall will be made free and clear of and without withholding or deduction for, or on account of, any present or future Taxes taxes unless the withholding or deduction of such Taxes taxes is then required by law. If the IssuerCompany, any the Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer Company or any the Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer Company or any the Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments or delivery under or with respect to the Notes or any Note the Guarantee, including, without limitation, payments of principal, redemption priceRedemption Price, purchase price, interest or premium, the Issuer Company or the relevant Guarantor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments or delivery by each beneficial owner of Notes Holder after such withholding or deduction shall will equal the respective amounts that would have been received and retained by each Holder in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
(1) A. any Taxestaxes, to the extent such Taxes taxes would not have been imposed but for the holder Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder or beneficial owner, if the relevant holder Holder or the beneficial owner is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having or having had a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the this Indenture or a Note the Guarantee, or the receipt of payments in respect of such Note or a Note the Guarantee;
(2) B. any Taxestaxes, to the extent such Taxes taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) C. any estate, inheritance, gift, sale, transfer, personal property or similar Taxestaxes;
(4) D. any Taxes taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note the Guarantee;
(5) E. any Taxes taxes to the extent such Taxes taxes would not have been imposed or withheld but for the failure of the holder Holder or beneficial owner of the Notes, following the IssuerCompany’s reasonable written request addressed to the holder Holder at least 60 30 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) F. any Taxes taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder Holder or beneficial owner of the Notes to the extent such Taxes taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agentpaying agent;
(7) G. any Taxes taxes imposed on or with respect to any payment by the Issuer Company or any of the Guarantors Guarantor to the holder Holder of the Notes if such holder Holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes taxes would not have been imposed on such payments had such holder Holder been the sole beneficial owner of such Note;
(8) H. any Taxes taxes imposed by the United States, any state thereof or the District of Columbia or any subdivision thereof or territory thereof, including any U.S. federal withholding taxes and any taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) I. any combination of clauses A through H above.
(1b) through (8) above. In addition to the foregoing, the Issuer Company and the Guarantors Guarantor will also pay and indemnify the holder Holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxestaxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the this Indenture, any Note the Guarantee or any other document referred to therein, or the receipt of any payments payments, with respect thereto, or enforcement of, any of the Notes or any Note the Guarantee (limited, solely in the case of Taxes taxes attributable to the receipt of any payments, or that are imposed on or result from a sale or other transfer or disposition of a Note by a Holder or a beneficial owner, to any such Taxes taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) A through (3) C or (5) E through (9) I above or any combination thereof), save in each case for any United Kingdom stamp duty which arises or is increased as a result of any document effecting the registration, issue or delivery of any of the notes either being signed or executed in the United Kingdom or being brought into the United Kingdom (save in each case where it was required by law or for the purposes of enforcing the notes to do so).
(bc) If the Issuer Company or any the 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 Note the Guarantee, the Issuer Company or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer Company or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates 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 Issuer Company or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(cd) The Issuer Company or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer Company or the relevant Guarantor will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes taxes so deducted or withheld. The Issuer Company or the relevant Guarantor will furnish to the Trustee (or to a Holder of the Notes upon request), within 60 days after the date the payment of any Taxes taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuer Company or a the Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trusteetrustee) by such entity.
(de) Whenever in the this Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note the Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(ef) The preceding obligations This Section 4.07 will survive any termination, defeasance or discharge of the this Indenture, any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person person to the Issuer Company (or any the Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note the Guarantee) by or on behalf of such Person person and, in each case, any political subdivision thereof or therein.
Appears in 2 contracts
Sources: Indenture (Norwegian Cruise Line Holdings Ltd.), Indenture (Norwegian Cruise Line Holdings Ltd.)
Additional Amounts. (a) All payments made by or on behalf of the any Issuer or any of the Guarantors (including, in each case, any successor entity) Guarantor under or with respect to the Notes or any Note Guarantee shall will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future Taxes unless required by law or the official interpretation or administration thereof. If any such withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, for or on account of, any of Taxes imposed or levied by or on behalf of (1i) any jurisdiction Denmark, (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2ii) any jurisdiction from or through which any such payment is made by or on behalf of the any Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agentpaying agent) or (iii) any political subdivision thereof other jurisdiction in which any Issuer or therein Guarantor is incorporated, organized, resident or engaged in business for Tax purposes (each of (1i), (ii), (iii) and (2)any political subdivision of any of the foregoing, a “Tax Relevant Taxing Jurisdiction”) ), in respect of any payments payment made under or with respect to the Notes or under any Note Guarantee, including, without limitation, Guarantee (including payments of principal, redemption price, purchase price, interest or premiumpremium (if any)), subject to the limitations described below, such Issuer or the relevant such Guarantor, as applicablethe case may be, shall will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order so that the net amounts amount received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall (including any withholding or deduction attributable to such Additional Amounts) will equal the respective amounts that amount the beneficial owner would have received if such Taxes had not been received and retained in respect of such payments in the absence of such withholding withheld or deductiondeducted; provided, however, that no Additional Amounts shall will be payable with respect to:
(1) any TaxesTax, to the extent such Taxes Tax would not have been imposed imposed, withheld, deducted or levied but for any actual or deemed present or former connection between the holder or the beneficial owner of the Notes (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder or other equity owner of, or possessor of a person having a power over, the relevant holdersuch holder or beneficial owner, if the relevant such holder or beneficial owner is an estate, a trust, nomineea limited liability company, a partnership, limited liability company a corporation or corporationother entity) of such Notes and the Relevant Taxing Jurisdiction (including, without limitation, being or having been a citizen citizen, national or resident or national of, or incorporated, engaged incorporated or carrying on a business in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with a permanent establishment in the relevant Tax Relevant Taxing Jurisdiction, ) other than any a connection arising solely from the acquisition, ownership ownership, holding or disposition of the Notes, the exercise or enforcement of rights under such Note, the Indenture Notes or a Note Guarantee, any Guarantee or the receipt of payments under or in respect of such Note the Notes or a Note any Guarantee;
(2) any TaxesTax, to the extent such Taxes were imposed Tax would not have been imposed, withheld, deducted or levied but for the failure of the holder or beneficial owner of the Notes to comply with any reasonable written request of the Issuers or Guarantors addressed to the holder or beneficial owner and made at least 30 days before any such withholding or deduction would be payable, to satisfy any certification, identification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such holder or beneficial owner, which are required by applicable law, treaty, regulation or official administrative guidance of the applicable Relevant Taxing Jurisdiction as a result precondition to exemption from, 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 such holder or beneficial owner is legally eligible to provide such certification or other documentation;
(3) any Tax that would not have been imposed, withheld, deducted or levied if the presentation of a Note for payment Notes (where Notes are in the form of certificated Notes and presentation is required) more than for payment had occurred within 30 days after the relevant date such payment became due and payable, or was duly provided for and notice thereof given to holders, whichever is first made available for payment to the holder later (except to the extent that the holder or beneficial owner would have been entitled to such Additional Amounts had the Note been presented on the last day of within such 30 30-day period);
(34) any estate, inheritance, gift, sale, transfer, capital gains, personal property property, wealth, value added, sales or similar TaxesTax;
(45) any Taxes Tax that could have been avoided by the presentation of Notes (where Notes are in the form of certificated Notes and presentation is required) for payment to another reasonably available paying agent;
(6) any Tax payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note the Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on which are imposed, withheld, deducted or levied with respect to any payment by to, or payable by, a holder that is not the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment the Note, or a portion of the Note, or that is a fiduciary, partnership, limited liability company or other similar entity, but only to the extent that a beneficial owner, a beneficiary or settlor with respect to such Taxes fiduciary or member of such partnership, limited liability company or similar entity would not have been imposed on such payments entitled to the payment of an Additional Amount had such holder been beneficial owner, settlor, beneficiary or member received directly its beneficial or distributive share of the sole beneficial owner of such Notepayment;
(8) any withholding Taxes imposed by the United States in respect of a beneficial owner that are imposed (i) is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign private foundation or other foreign tax-exempt organization or a corporation that has accumulated earnings to avoid U.S. federal income tax, (ii) is a “10-percent shareholder” within the meaning of Section 871(h)(3)(B) of the Code (or any amended or successor version), of the Company, or (iii) is a bank that is receiving payments on an extension of credit made pursuant to current a loan agreement entered into the ordinary course of its trade or business within the meaning of Section 881(c)(3) of the Code (or any amended or successor version);
(9) any Taxes imposed, withheld, levied or deducted pursuant to Sections 1471 through 1474 of the Internal Revenue Code as of 1986, as amended the Issue Date (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder, any thereunder or official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(11471(b) of the Code as of the Issue Date (or any amended or successor version described above), or any intergovernmental agreements, treaties, conventions or similar agreements (and any related laws or other official rules or administrative guidance) implementing the foregoing in any jurisdiction;
(10) any Taxes imposed, withheld, levied or deducted pursuant to the Dutch Conditional Withholding Tax Act 2021 (Wet bronbelasting 2021), together with the related ordinances, regulations and guidelines, in each case as in effect as of the date of the Offering Memorandum;
(11) any Danish withholding Tax imposed as a consequence of Indebtedness under the Notes to the holder or beneficial owner of the Notes being considered “controlled debt” for the purpose of section 2 (1)(d) of the Danish Corporation Tax Act; or
(912) any combination of clauses (1) through (8) 11) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, agent will (i) make all withholdings any required withholding or deduction and deductions (within the time periodii) required by law and will timely remit the full amount deducted or withheld to the relevant Tax taxing authority in accordance with applicable law. The Upon request, any Issuer or the relevant Guarantor Guarantor, as applicable, will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing the payment by of Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Issuer Trustee. If certified copies of such Tax receipts are not reasonably obtainable, upon request, the Issuers or a such Guarantor, as applicable, shall provide the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, Trustee with other evidence of payments (payment reasonably satisfactory to the Trustee) by such entity.
(d) . Such certified copies or other evidence shall be made available to holders upon request. Whenever in the this Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, premium (if any) or interest or of any other amount payable under, under or with respect to, to any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
. 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, the Collateral Documents, 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 (e) “Documentary Taxes”). For the avoidance of doubt, the obligation provided in this paragraph shall not include any Documentary Taxes resulting from the transfer of Notes in the ordinary course. The preceding obligations obligation to pay Additional Amounts and Documentary Taxes under the terms and conditions described above will survive any termination, defeasance or discharge of the this Indenture, any transfer by a holder or beneficial owner of its Notes, and will apply, apply mutatis mutandis, mutandis to any successor to any Issuer or Guarantor and to any jurisdiction in which any such successor Person to the Issuer (or any Guarantor) is incorporated, organized, resident or engaged in business, organized or resident business for tax Tax purposes, or any jurisdiction from or through which payment on the Notes or any Guarantee is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of any such Person andsuccessor (including, in each casewithout limitation, the jurisdiction of any paying agent), and any political subdivision or taxing authority thereof or therein.
Appears in 1 contract
Sources: Indenture (Genmab a/S)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Note Guarantors (including, in each case, any successor entity) under or with respect to the Notes or 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 Taxes unless the withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes taxes imposed or levied by or on behalf of (1i) any jurisdiction (other than the United States) in which the Issuer (including any surviving corporation) is then incorporated, organized or resident for tax purposes or any political subdivision thereof or therein, (ii) any jurisdiction in which the Parent Guarantor is or was then incorporated, engaged organized or resident for tax purposes or any political subdivision thereof or therein, (iii) any jurisdiction in businesswhich any Subsidiary Guarantor is then incorporated, organized or resident for tax purposes or any political subdivision thereof or therein or (2iv) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) Agent or any political subdivision thereof or therein (each of (1i), (ii), (iii) and (2iv), a “Tax Jurisdiction”) in respect ), unless the withholding or deduction of such taxes is then required by law or by the interpretation or administration thereof. If any deduction or withholding for, or on account of, any taxes imposed or levied by or on behalf of any Tax Jurisdiction shall at any time be required to be made from any payments made under or with respect to the Notes or with respect to any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Note Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes Holder (including Additional Amounts) after such withholding withholding, deduction or deduction imposition shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1i) any Taxes, to the extent such Taxes taxes that would not have been imposed but for the holder Holder of a Note or the beneficial owner of a Note having a present or former connection with the Notes Tax Jurisdictions in which such taxes are imposed (or a fiduciaryincluding, settlorwithout limitation, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present incorporated in or having carrying on a business or maintaining a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant physical presence in such Tax Jurisdiction, ) other than any connection arising solely from the mere acquisition, ownership holding, enforcement or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments payment in respect of such Note or a any Note Guarantee;
(2ii) any Taxes, to the extent such Taxes were U.S. federal withholding taxes;
(iii) any taxes that are imposed or withheld as a result of the presentation failure of the Holder of a Note or beneficial owner of a Note to comply with any certification, identification or other reporting requirement concerning nationality, residence, identity or connection with the Tax Jurisdiction of such Holder or beneficial owner if compliance is required by law, regulation, administrative practice or by an applicable income tax treaty to which the Tax Jurisdiction of such Holder or beneficial owner is a party, as a precondition to exemption for, or reduction in the rate of deduction or withholding of, those taxes;
(iv) any taxes that are imposed or withheld as a result of the failure of the Holder of a Note or beneficial owner of a Note to comply with any timely reasonable written request, made to that Holder or beneficial owner, by the Issuer or any of the Note Guarantors to provide timely and accurate information concerning the nationality, residence or identity of such Holder or beneficial owner or an appropriate tax file number, Australian Business Number, or other number or exemption details 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 Tax Jurisdiction as a precondition to any exemption from or reduction in all or part of such taxes to which such Holder is entitled;
(v) any Note presented for payment (where Notes are in the form of definitive registered Notes and presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder;
(except vi) any payment of principal or interest on a Note made to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the holder beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Note been presented on the last day actual Holder of such 30 day period)Note;
(3vii) any estate, inheritance, gift, saleuse, sales, excise, transfer, value added, personal property or similar Taxestaxes, assessments or other governmental charges;
(4viii) any Taxes Note presented for payment by or on behalf of a Holder of Notes who would have been able to avoid such withholding or deduction by presenting the relevant Note to another Paying Agent;
(ix) any taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any Note Guarantee;
(5x) any Taxes to the extent such Taxes would not have been taxes imposed or withheld but for the failure by reason of such Holder being an “associate” (as defined in Section 128F(9) of the holder or beneficial owner Income Tax Assessment ▇▇▇ ▇▇▇▇ of Australia (the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice “Australian Tax Act”)) of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Note Guarantors to not acting in the holder capacity of a clearing house, paying agent, custodian, funds manager or responsible entity of a registered scheme within the meaning of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner Corporations ▇▇▇ ▇▇▇▇ of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such NoteAustralia;
(8) xi) any Taxes that are taxes imposed pursuant to current Section 1471 through 1474 or withheld by reason of the Internal Revenue Code Australian Commissioner of 1986, as amended Taxation giving a notice under section 255 of the Australian Tax Act or section 260-5 of Schedule 1 to the Taxation ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ of Australia;
(the “Code”xii) any applicable tax required to be withheld or any amended or successor version that is substantively comparable and not materially more onerous deducted under Sections 1471 to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) 1474 of the Code (or any amended or successor version described aboveversions of such Sections) (“FATCA”), any regulations or 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 or an intergovernmental agreement; or
(9xiii) any combination of clauses items (1i) through (8) xii) above. .
(b) In addition to the foregoing, the Issuer and the Note Guarantors will shall also pay and indemnify indemnify, the holder Trustee, the Paying Agents and the Holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxestaxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) taxes which are levied by any jurisdiction Tax Jurisdiction on the execution, delivery, issuance, registration or registration enforcement of any of the Notes, the this Indenture, any Note Guarantee 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 (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(bc) If the Issuer or any Note Guarantor, as the case may be, becomes aware that it will shall be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guarantee, the Issuer or the relevant Note Guarantor, as the case may be, will shall deliver to the Trustee on a date that is at least 30 10 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th 10th day prior to that payment date, in which case the Issuer or the relevant Note Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will shall 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 Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary and the amount of such payment. The Issuer or the relevant Note Guarantor will shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(cd) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will Note Guarantor shall make all withholdings and deductions (within the time period) required by law and will shall remit the full amount deducted or withheld to the relevant Tax taxing authority in accordance with applicable law. The Upon request, the Issuer or the relevant Note Guarantor will use its reasonable efforts shall provide to obtain Tax the Trustee an official receipt or, if official receipts from each Tax authority are not obtainable, other documentation satisfactory to the Trustee evidencing the payment of any Taxes taxes so deducted or withheld. The Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon Upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax those receipts evidencing payment by the Issuer or a Guarantorother documentation, as the case may be, shall be made available by the Issuer or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory relevant Note Guarantor to the Trustee) by such entityHolders.
(de) Whenever in the this Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note GuaranteeGuarantee (as the case may be), such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(ef) The preceding above obligations will shall survive any termination, defeasance or discharge of the Indenture, this Indenture and any transfer by a holder Holder or beneficial owner of its Notes, Notes and will apply, shall apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person person to the Issuer (or any Guarantor) Note Guarantor is incorporated, engaged in business, organized or resident for tax purposes, purposes or any jurisdiction from or through which such person makes any payment is made under or with respect to on the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, and any political subdivision thereof or therein.
Appears in 1 contract
Additional Amounts. (a) All payments made The payment by or Mexico of principal of, premium, if any, and interest on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future Taxes unless the withholding taxes, duties, assessments or deduction governmental charges of such Taxes is then required whatever nature imposed or levied by lawMexico, any political subdivision thereof or any taxing authority in Mexico. If the Issuer, any Guarantor or any other applicable withholding agent Mexico is required by law to withhold make any such withholding or deduct any amount fordeduction, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall it will pay such additional amounts (the “Additional Amounts”) as may be necessary in order to ensure that the net amounts received and retained in respect of such payments receivable by each beneficial owner of Notes the Holders after such withholding or deduction shall equal the respective amounts of principal, premium, if any, and interest that would have been received and retained receivable in respect of such payments the Notes in the absence of such withholding or deduction; provided, however, except that no such Additional Amounts shall be payable with respect to:
(1) to any Taxes, Note to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor on behalf of a power over, the relevant holder, if the relevant holder Holder who is an estate, trust, nominee, partnership, limited liability company liable for taxes or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments duties in respect of such Note (i) by reason of such Holder having some connection with Mexico other than the mere holding of such Note or a Note Guarantee;
the receipt of principal of, premium, if any, or interest on any Note; (2ii) any Taxesin the case of Registered Notes, to the extent such Taxes were imposed as a result by reason of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any reasonable certification, identification, information documentation or other reporting requirementsor registration requirement concerning the nationality, whether residence, identity or connection with Mexico, or any political subdivision or taxing authority thereof or therein, of the Holder of a Note or any interest therein or rights in respect thereof, if compliance is required by statuteapplicable law, treatyregulation, regulation or administrative practice of a Tax Jurisdictionor any treaty in effect, as a precondition to exemption from, or reduction in the rate of of, deduction or withholding withholding; or (iii) by reason of the failure of such Holder to present such Holder’s Note for payment within 30 days after the principal of, Taxes imposed by the Tax Jurisdiction (includingpremium, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note toif any, or otherwise accepting payment from, another Paying Agent;
(7) interest on any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder Note is a fiduciary or partnership or any person other than the sole beneficial owner of such first made available for payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) aboveHolder. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder 18 Include for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Discount Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principalof, interest or of any other amount payable underpremium, if any, or with respect to, interest on any of the Notes or any Note GuaranteeNote, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will survive any termination, defeasance or discharge thereof and express mention of the Indenture, payment of Additional Amounts (if applicable) in any transfer by a holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction provisions hereof shall not be construed as excluding Additional Amounts in which any successor Person to the Issuer (or any Guarantor) those provisions hereof where such express mention is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or thereinnot made.
Appears in 1 contract
Additional Amounts. (a) All payments made by the Issuer, a Successor Company or a Guarantor (a “Payor”) on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any the Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of of:
(1) any jurisdiction (other than the Grand Duchy of Luxembourg, the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes Kingdom or any political subdivision or Governmental Authority thereof or therein or having power to tax;
(2) any jurisdiction from or through which payment on any payment such Note or Note Guarantee is made by the Issuer, Successor Company, Guarantor or on behalf of the Issuer or any Guarantor (includingtheir agents, without limitation, the jurisdiction of any Paying Agent) or any political subdivision or Governmental Authority thereof or therein having the power to tax; or
(3) any other jurisdiction in which the Payor is incorporated or organized, engaged in business for tax purposes or otherwise considered to be a resident for tax purposes, or any political subdivision or Governmental Authority thereof or therein having the power to tax (each of clauses (1), (2) and (23), a “Tax Relevant Taxing Jurisdiction”) in respect of ), will at any time be required from any payments under or made with respect to the Notes any Note or any Note Guarantee, including, without limitation, including payments of principal, redemption price, purchase price, interest or premium, if any, or interest, the Issuer or the relevant Guarantor, as applicable, Payor shall pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes the Holders or the Trustee, as the case may be, after such withholding or deduction shall equal (including any such deduction or withholding from such Additional Amounts), will not be less than the respective amounts that which would have been received and retained in respect of such payments on any such Note or Note Guarantee in the absence of such withholding or deduction; provided, however, that no such Additional Amounts shall will be payable with respect tofor or on account of:
(1) any Taxes, to the extent such Taxes that would not have been so imposed but for the holder existence of any present or former connection between the beneficial owner of the Notes relevant Holder (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, over the relevant holderHolder, if the relevant holder Holder is an estate, nominee, trust, nominee, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including, but not limited to, being or having been a citizen or resident or national or domiciliary of, or incorporatedthe existence of a business, engaged in a trade permanent establishment, a dependent agent, a place of business or business in, being a place of management present or having been physically deemed present in or having a permanent establishment inthe Relevant Taxing Jurisdiction) but excluding, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdictionin each case, other than any connection arising solely from the acquisition, ownership or disposition holding of Notes, the exercise such Note or enforcement of rights hereunder or under such Note, the Indenture or a Note Guarantee, Guarantee or the receipt of payments any payment in respect of such Note or a Note Guaranteethereof;
(2) any TaxesTaxes that are imposed or withheld by reason of the failure by the Holder or the beneficial owner of the Note to comply with a written request of the Payor addressed to the Holder, after reasonable notice, to provide certification, information, documents or other evidence concerning the extent nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of the Holder or such Taxes were imposed beneficial owners or to make any declaration or similar claim or satisfy any other reporting requirement relating to such matters, in each case that is required by applicable law, regulation, treaty or administrative practice of the Relevant Taxing Jurisdiction as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment precondition to the holder (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented on the last day exemption from all or part of such 30 day period)Tax; provided that in each case the Holder or beneficial owner is legally eligible to do so;
(3) any Taxes that are payable otherwise than by deduction or withholding from a payment with respect to the Notes or any Note Guarantee;
(4) any estate, inheritance, gift, salesales, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder Holder or beneficial owner of the Notes to the extent such Taxes could who would have been avoided able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying AgentAgent in the United Kingdom or any member state of the European Union;
(76) any Taxes imposed on or with respect to any a payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder a Holder that is a fiduciary or partnership or any person Person other than the sole beneficial owner of such payment or Note, to the extent that a beneficiary or settlor with respect to such Taxes fiduciary, a member of such partnership or the beneficial owner of such payment or Note would not have been imposed on such payments entitled to the Additional Amounts had such holder beneficiary, settlor, member or beneficial owner been the sole beneficial owner actual Holder of such Note;
(8) 7) any Taxes that are imposed pursuant to current Section or in connection with Sections 1471 through 1474 of the Internal Revenue Code of 1986Code, as amended (the “Code”) United States Treasury Regulations thereunder or any amended similar law or successor version that is substantively comparable and not materially more onerous regulations adopted pursuant to comply with, any regulations promulgated thereunder, any official interpretations thereof, any an intergovernmental agreement between a non-U.S. non‑U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing with respect to the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above)foregoing; or
(9) 8) any combination of the above.
(b) Additional Amounts will also not be payable (x) to the extent the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required 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 would have been imposed had the Holder presented the Note for payment within such 30 day period or (y) where, had the beneficial owner of the Note been the Holder, except for Additional Amounts with respect to Taxes that would have been imposed had the Holder presented the Note for payment within such 30-day period, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) through to (8) inclusive above. In addition , but only if there is no material cost or legal restriction associated with transferring the Note to such beneficial owner.
(c) The Payor shall (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the foregoing, Relevant Taxing Jurisdiction in accordance with applicable law. The Payor shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the Issuer and the Guarantors will also pay and indemnify the holder for payment of any present Taxes so deducted or future stamp, issue, registration, value added, transfer, court or documentary withheld from each Relevant Taxing Jurisdiction imposing such Taxes, or any other excise or property taxesin such form as provided in the ordinary course by the Relevant Taxing Jurisdiction and as is reasonably available to the Company, charges or similar levies and shall provide such certified copies to the Trustee. Such copies shall be made available to the Holders upon request and shall be made available at the offices of the Paying Agent. The Payor shall attach to each certified copy a certificate stating (including penalties, interest 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 additions to tax related thereto(y) which are levied by any jurisdiction on the execution, delivery, issuance, or registration amount of any such withholding Taxes paid per £1,000 principal amount of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(bd) If the Issuer or any Guarantor, as the case may be, Payor becomes aware that it will shall be obligated to pay Additional Amounts under or with respect to any payment under made on any Note or with respect to the Notes or any Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless such payment, the obligation Payor shall deliver to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate must also set forth any payable and such other information reasonably necessary to enable the Paying Agents Agent to pay Additional Amounts to Holders on the relevant payment date. The Issuer date (unless such obligation to pay Additional Amounts arises, or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory Payor becomes aware of such obligation, less than 45 days prior to the Trustee evidencing relevant payment date, in which case the Payor may deliver such Officer’s Certificate as promptly as practicable after the date that is 30 days prior to the payment of Additional Amountsdate). The Trustee shall be entitled to rely absolutely solely on an such Officer’s Certificate without further inquiry, as conclusive proof that such payments are necessary.
(ce) The Issuer Wherever in this Indenture or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 Issuer or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts Note Guarantees there are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, :
(1) the payment of amounts based upon the principal amount principal;
(2) purchase or redemption prices in connection with a purchase or redemption of the Notes or of principal, interest or of Notes;
(3) interest; or
(4) any other amount payable under, on or with respect to, to any of the Notes or any Note GuaranteeNotes, such mention reference shall be deemed to include mention of the payment of Additional Amounts pursuant to this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(ef) The preceding Payor shall pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any jurisdiction from the execution, delivery, registration or enforcement of any Notes, this Indenture, the Proceeds Loan Agreement, the Intercreditor Agreements, the other Security Documents or any other document or instrument in relation thereto (other than a transfer or exchange of the Notes) excluding any such Taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction.
(g) The foregoing obligations of this Section 2.13 will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder or beneficial owner of its Notes, this Indenture and will apply, apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer (or any Guarantor) Guarantor is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Encore Capital Group Inc)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (includingunder, in each case, any successor entity) under or with respect to to, the Junior Notes or any Note and the Guarantee shall of the Junior Notes will be made free and clear of of, and without withholding or deduction for, for or on account of, any present or future Taxes Taxes, unless the withholding Issuer or deduction of such any Guarantor is required to withhold or deduct Taxes is then required by lawlaw or by the interpretation or administration thereof. If the Issuer, Issuer or any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) Kingdom or by any other jurisdiction in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax Tax purposes or any political subdivision thereof or any Taxing Authority therein or (2) any jurisdiction each, a "RELEVANT TAXING JURISDICTION"), from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Junior Notes or any Note Guarantee, including, without limitation, payments the Guarantee of principal, redemption price, purchase price, interest or premiumthe Junior Notes, the Issuer or the relevant Guarantor, as applicable, shall applicable Guarantor will pay such additional amounts (the “Additional Amounts”"ADDITIONAL AMOUNTS") as may be necessary in order so that the net amounts amount received and retained in respect of such payments by each beneficial owner of Notes Holder (including Additional Amounts) after such withholding or deduction shall will equal the respective amounts that amount the Holder would have been received and retained in respect of such payments in the absence of had no such withholding or deductiondeduction been required; provided, however, that no Additional Amounts shall will be payable with respect toto any Tax:
(1) any Taxes, to the extent such Taxes that would not have been imposed imposed, payable or due:
(a) but for the holder existence of any connection between the Holder (or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder Beneficial Owner of, or possessor of a power overPerson ultimately entitled to obtain an interest in, the relevant holder, if Junior Notes or the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporationGuarantee of the Junior Notes) and the Relevant Taxing Jurisdiction (including being or having been a citizen or resident or national of, or incorporated, engaged in carrying on a trade or business in, being or having been physically present in or having maintaining a permanent establishment or fixed base in, the relevant Tax Jurisdiction 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 having had any other present or former connection with through an agent, of the relevant Tax Relevant Taxing Jurisdiction, ) other than any connection arising solely from the acquisition, ownership mere holding of the Junior Notes or disposition the Guarantee of Notes, the exercise Junior Notes or enforcement of rights under such Note, the Indenture or a Note Guarantee, thereunder or the receipt of payments in respect of such Note or a Note Guaranteethereof;
(2b) any Taxes, to the extent such Taxes were imposed as a result of if the presentation of a Note for payment the Junior Notes (where presentation is required) more than for payment had occurred within 30 days after the relevant date such payment was due and payable or was duly provided for, whichever is first made available for payment to the holder (later except to the extent that the holder Holder of such Junior Notes would have been entitled to such Additional Amounts had the Note been presented on presenting such Junior Notes for payment on the last day of such period of 30 day period);days; or
(2) on a payment to an individual where such withholding or deduction is required to be made pursuant to any 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 Directive; or
(3) any estate, inheritance, gift, sale, transfer, personal property if the Holder of the Junior Note would have been able to avoid such withholding or similar Taxes;deduction by presenting the Junior Note to another Paying Agent in a money-center in a member state of the European Union; or
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, where the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that Additional Amounts is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) prevented by any combination of clauses (1), (2) through or (8) 3). With respect to paragraph (3) above. In addition to the foregoing, the Issuer and the Guarantors shall undertake to ensure that it maintains a Paying Agent in a European Union member state that will also pay and indemnify the holder for any present not be obliged to withhold or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to deduct tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable pursuant to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) European Union Directive. If the Issuer or any Guarantor, as the case may be, becomes aware that it Guarantor will be obligated obliged to pay Additional Amounts with respect to any payment under or with respect to the Junior Notes or any Note Guaranteeits Guarantee of the Junior Notes, the Issuer or the relevant Guarantor, as the case may be, such Guarantor 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant such Guarantor shall notify the Trustee promptly thereafter) an Officer’s Officers' Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Officers' Certificate must shall also set forth any other information reasonably necessary to enable the Paying Agents Agent to pay Additional Amounts to Holders on the relevant payment date. The Issuer or the relevant such Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all required withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer or the relevant and such Guarantor will use its their respective reasonable efforts to obtain Tax certified copies of tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheldwithheld from each Taxing Authority. The Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request)Trustee, within 60 days after the date the payment of any Taxes so deducted or withheld is madedue pursuant to applicable law, certified copies of Tax tax receipts evidencing payment by the Issuer or a such Guarantor, as the case may be, or if, notwithstanding the Issuer's and such entity’s Guarantor's efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to by the Trustee) by Issuer or such entity.
(d) 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 Junior Notes and the enforcement of the Junior Notes following the occurrence of any Event of Default. Whenever in the this Indenture or this Note in any Junior Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the such Junior Notes or of principal, interest interest, premium, if any, or of any other amount payable under, or with respect to, any of the Notes or any Note GuaranteeJunior Notes, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) . The preceding obligations will described under this Section 4.36 shall survive any termination, defeasance or discharge of the Indenture, any transfer by a holder or beneficial owner of its Notes, this Indenture and will apply, shall apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision or Taxing Authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Marconi Corp PLC)
Additional Amounts. (a) All payments made by or on behalf of the Issuer Issuers or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the any Issuer or any Guarantor (including any successor entity) is or was at any relevant time incorporated, organized, engaged in business, organized business or resident for tax purposes or any political subdivision or governmental authority thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the any Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agentpaying agent) or any political subdivision or governmental authority thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) will at any time be required to be made by any applicable withholding agent in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the relevant Issuer or the relevant Guarantor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall by any applicable withholding agent (including any such withholding or deduction in respect of any Additional Amounts payable hereunder) will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner ofpartner, member or shareholder of, or a possessor of a power over, the relevant holdersuch holder or beneficial owner, if the relevant such holder or beneficial owner is an estate, trust, nominee, partnership, limited liability company partnership or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present incorporated in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, Jurisdiction other than any connection arising solely from the acquisition, ownership holding or disposition of Notesany Note, the exercise or enforcement of rights under such Note, the any Note or this Indenture or a Note Guarantee, any Guarantee or the receipt of payments any payment in respect of such any Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, salesales, personal property, stamp, value added, transfer, personal property or similar Taxes;
(4) any Taxes payable required to be paid other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been are imposed or withheld but for by reason of the failure of the holder or beneficial owner of the Notes, following the an Issuer’s reasonable written request addressed to the holder or beneficial owner at least 60 days before any such withholding or deduction would be imposedrequired, to accurately comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide comply with such certification or documentationrequirements;
(6) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) withheld by or on behalf reason of a the failure of the holder or beneficial owner of the Notes to comply with the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any requirements of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section Sections 1471 through 1474 of the Internal Revenue Code as of 1986, as amended the Issue Date (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations promulgated thereunder, the U.S. Treasury Regulations issued thereunder or any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (thereof or any related law or administrative practices or procedures) implementing the foregoing or any agreements agreement entered into pursuant to current Section 1471(b)(11471(b) of the Code as of the Issue Date (or any amended or successor version described above)) or any intergovernmental agreement, treaty, convention or similar agreement among governmental authorities (and related legislation, official regulations or other administrative guidance) implementing any of the foregoing;
(7) any withholding Tax imposed by the United States, any state thereof or the District of Columbia; or
(9) 8) any combination of clauses (1) through (8) 7) above. .
(b) In addition to the foregoing, the Issuer Issuers and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxesTaxes, charges or any other similar levies (including penalties, interest and additions to tax any other liabilities related thereto) which are levied by any jurisdiction Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the this Indenture, any Note Guarantee or any other document referred to herein or therein, or the receipt of any payments with respect thereto, or the enforcement of, any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof)Guarantee.
(bc) If the any 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 Note Guarantee, the relevant Issuer or the relevant Guarantor, as the case may be, 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 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 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 paying agent to pay Additional Amounts to Holders on the relevant payment date. The Trustee shall be entitled to rely on an Officer’s Certificate as conclusive proof that such payments are necessary. The relevant Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(cd) The Issuer or the relevant Guarantor, if If it is the applicable withholding agent, the relevant Issuer or the relevant Guarantor will make all withholdings and deductions (within the time periodperiod and in the minimum amount) 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 Trustee (or to a Holder upon request), 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 any Issuer or a any Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity.
(de) Whenever in the Indenture or this Note there is mentioned, in any context, the The payment of any amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(ef) The preceding obligations under this Section 2.16 will survive any termination, defeasance or discharge of the Indenture, this Indenture and any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any successor person to any Issuer or any Guarantor and to any jurisdiction in which any successor Person to the any Issuer (or any Guarantor) Guarantor is at any relevant time incorporated, organized, engaged in business, organized business or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person Person, and, in each case, any political subdivision or governmental authority thereof or therein.
Appears in 1 contract
Sources: Indenture (Ellington Financial Inc.)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the this Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will shall also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the this Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.of
Appears in 1 contract
Sources: Indenture (Carnival PLC)
Additional Amounts. (ai) All payments made by or on behalf the Republic in respect of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future Taxes unless the withholding taxes, duties, assessments or deduction other governmental charges of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes whatever nature imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporatedRepublic, engaged in business, organized or resident for tax purposes or any political subdivision thereof or taxing authority or agency therein or thereof having the power to tax (2) any jurisdiction from or through which any payment is made by or on behalf for purposes of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2)this paragraph, a “Tax JurisdictionRelevant Tax”) in respect ), unless the withholding or deduction of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premiumsuch Relevant Tax is required by law. In that event, the Issuer or the relevant Guarantor, as applicable, shall Republic will pay such additional amounts amounts, including but not limited to, the payment of the 4% withholding tax imposed on payments of interest to bondholders that are not residents of the Republic (the “Additional Amounts”) ), as may be necessary in order to ensure that the net amounts received and retained in respect of such payments by each beneficial owner of Notes the bondholders after such withholding or deduction shall will equal the respective amounts of principal and interest that would have been received and retained receivable in respect of such payments the Notes in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with in respect toof any Relevant Tax:
(1A) any Taxes, to the extent such Taxes would not have been imposed but for the holder by reason of a bondholder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or Note having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other some present or former connection with the relevant Tax Jurisdiction, Republic other than merely being a bondholder or beneficial owner of the Note or receiving payments of any connection arising solely from nature on the acquisition, ownership Note or disposition of Notes, the exercise or enforcement of enforcing its rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guaranteethe Note;
(2B) imposed by reason of the failure of a bondholder or beneficial owner of a Note, or any Taxesother person through which the bondholder or beneficial owner holds a Note, to comply with any certification, identification or other reporting requirement concerning the extent nationality, residence, identity or connection with the Republic of such Taxes were bondholder or beneficial owner or other person, if compliance with the requirement is a precondition to exemption from all or any portion of such withholding or deduction, provided that (x) the Republic or the Republic’s agent has provided the trustee with at least 60 days’ prior written notice of an opportunity to satisfy such a requirement, and (y) in no event shall such holder or beneficial owner or other person’s obligation to satisfy such a requirement require such holder or beneficial owner or other person to provide any materially more onerous information, documents or other evidence than would be required to be provided had such holder or beneficial owner or other person been required to file Internal Revenue Service Forms W-8BEN, W-8BEN-E, W-8ECI, W-8EXP and/or W-8IMY; or
(C) is imposed as a result of the presentation by reason of a bondholder or beneficial owner of a Note, or any other person through which the bondholder or beneficial owner holds a Note, having presented the Note for payment (where such presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder (date, except to the extent that the holder bondholder or beneficial owner or such other person would have been entitled to Additional Amounts had on presenting the Note been presented for payment on the last day of any date during such 30 30-day period);
. As used in this paragraph (3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdictionh), but “relevant date” in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any Notes, means the date on which payment in respect hereof first becomes due or, if the full amount of the money payable has not been received by the Issuer Trustee on or any of prior to such due date, the Guarantors date on which notice is duly given under the Indenture to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent holders that such Taxes would not monies have been imposed on such payments had such holder been so received and are available for payment. Any reference to “principal” and/or “interest” under the sole beneficial owner of such Note;
(8) Indenture also refers to any Taxes that are imposed pursuant to current Section 1471 through 1474 of additional amounts which may be payable under the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) aboveIndenture. In addition to the foregoing, the Issuer and the Guarantors The Republic will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, taxes or any other excise or property taxes, charges or similar levies (including penaltieswhich arise in the Republic or any political subdivision thereof or taxing authority thereof or therein in respect of the creation, interest and additions to tax related thereto) which are levied by any jurisdiction on the issue, execution, delivery, issuance, initial delivery or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limitedother document or instrument referred to therein. The Republic will also indemnify the bondholders from and against any stamp, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) court or (5) through (9) above documentary taxes or any combination thereof).
(b) If excise or property taxes, charges or similar levies resulting from, or required to be paid by any of them in any jurisdiction in connection with, the Issuer or any Guarantor, as enforcement of the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment obligations of the Republic under or with respect to the Notes or any Note Guarantee, other document or instrument referred to therein following the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date occurrence 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 relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment Event of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessaryDefault.
(cii) The Issuer or From the relevant Guarantor, if it is date hereof through the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), within 60 period ending 30 days after the date Closing Date, the payment Republic will ensure that no other dollar-denominated debt securities of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuer or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtainedRepublic, other evidence than debt securities with a maturity of payments (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever one year or less, are placed or sold in the Indenture international capital markets, directly or this Note there is mentionedindirectly on its behalf, in any contextmanner which might, in the payment of amounts based upon the principal amount reasonable opinion of the Notes or of principalStructuring Agent, interest or of any other amount payable under, or with respect to, any have a detrimental effect on the successful offering and distribution of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder or beneficial owner of its Notes, unless the Underwriters and will apply, mutatis mutandis, to any jurisdiction the Structuring Agent otherwise agree in which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or thereinwriting.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of principal and interest in respect of the Issuer or any Notes by the Company or, in the case of the Guarantors (includingGuarantee, in each casethe Guarantor, any successor entity) under or with respect to by a paying agent on the Notes Company’s or any Note Guarantee shall the Guarantor’s behalf, will be made free and clear of of, and without deduction or withholding or deduction for, for or on account of, any present or future Taxes unless taxes, duties, assessments or other similar governmental charges (collectively, “Taxes”) imposed or levied by Luxembourg, the withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor United States or any other applicable jurisdiction in which the Company or the Guarantor may be organized, engaged in business for tax purposes or resident for tax purposes, or any political subdivision or taxing authority thereof or therein (a “Taxing Jurisdiction”), unless such deduction or withholding agent is required by law or the official interpretation or administration thereof.
(b) In the event such deduction or withholding for Taxes is so required, subject to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) exceptions and limitations described in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitationthis Section 2.12, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall Company will pay such additional amounts (the “Additional Amounts”) on the Notes as may be necessary in order to ensure that the net amounts amount received and retained in respect of such payments by each any beneficial owner of Notes owner, after such withholding or deduction shall for such Taxes, will be equal to the respective amounts that amount such beneficial owner would have been received and retained in respect of such payments in the absence of such withholding deduction or deduction; provided, however, that no withholding.
(c) No Additional Amounts shall will be payable with respect toto any Taxes if such Taxes are imposed, withheld, deducted or levied for reasons unrelated to the Holder’s or beneficial owner’s ownership or disposition of Notes, nor will Additional Amounts be payable for or on account of:
(1i) any Taxes, to the extent such Taxes which would not have been imposed so imposed, withheld, deducted or levied but for for:
(A) the holder existence of any present or former connection between the Holder or beneficial owner of the Notes (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder or other equity owner of, or possessor of a person having a power over, the relevant holdersuch Holder or beneficial owner, if the relevant holder such Holder or beneficial owner is an estate, a trust, nomineea limited liability company, a partnership, limited liability company a corporation or corporationother entity) and the relevant Taxing Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or other equity owner or person having such a power) being or having been a citizen or resident or national oftreated as a resident of the relevant Taxing Jurisdiction, being or incorporated, having been engaged in a trade or business inin the relevant Taxing Jurisdiction, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction Taxing Jurisdiction, or having or having had a permanent establishment in the relevant Taxing Jurisdiction;
(B) the failure of the Holder or beneficial owner to comply with any applicable certification, information, documentation or other reporting requirement, if compliance is required under the tax laws and regulations of the relevant Taxing Jurisdiction or any taxing authority thereof or therein or by an applicable income tax treaty to which the relevant Taxing Jurisdiction is a party as a precondition to exemption from such Taxes; or
(C) the Holder’s or beneficial owner’s present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture status as a personal holding company or a Note Guaranteeforeign personal holding company with respect to the United States, as a controlled foreign corporation with respect to the United States, as a passive foreign investment company with respect to the United States, as a foreign tax-exempt organization with respect to the United States or as a corporation that accumulates earnings to avoid United States federal income tax;
(ii) any Taxes which would not have been imposed, withheld, deducted or levied but for the receipt failure of payments in respect the Holder or beneficial owner to meet the requirements (including the certification requirements) of Section 871(h) or Section 881(c)(3)(C) of the Code;
(iii) any Taxes which would not have been imposed, withheld, deducted or levied but for the presentation by the Holder or beneficial owner of such Note for payment on a date more than thirty (30) days after the date on which such payment became due and payable or a the date on which payment of the Note Guaranteeis duly provided for and notice is given to Holders, whichever occurs later;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3iv) any estate, inheritance, gift, salesales, excise, transfer, capital gains, personal property property, wealth or similar Taxes;
(4v) any Taxes which are payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information deducting from a payment of principal of or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or interest on behalf of a holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) vi) any Taxes which are imposed, withheld, deducted or levied with respect to, or payable by, a Holder that are imposed pursuant is not the beneficial owner of the Note, or a portion of the Note, or that is a fiduciary, partnership, limited liability company or other similar entity, but only to current Section the extent that a beneficial owner, a beneficiary or settlor with respect to such fiduciary or member of such partnership, limited liability company or similar entity would not have been entitled to the payment of an Additional Amount had such beneficial owner, settlor, beneficiary or member received directly its beneficial or distributive share of the payment;
(vii) any Taxes required to be withheld or deducted by any paying agent from any payment on any Note, if such payment can be made without such withholding or deduction by at least one other paying agent;
(viii) any Taxes imposed, withheld, deducted or levied under Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described aboveprovisions), any current or future regulations or official interpretations thereof (“FATCA”), 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 or an intergovernmental agreement in respect of FATCA;
(ix) any Taxes that would not have been imposed, withheld, deducted or levied but for a change in any law, treaty, regulation, or administrative or judicial interpretation that becomes effective after the applicable payment becomes due or is duly provided for, whichever occurs later;
(x) a Tax deduction on account of Tax imposed by Luxembourg if on the date on which the payment falls due such Tax deduction is required in respect of the Luxembourg law of 23 December 2005, as amended, introducing in Luxembourg a 20% withholding tax as regards Luxembourg resident individuals; or
(9xi) any combination of clauses items (1i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix) through and (8) above. In addition to the foregoingx).
(d) For purposes of this Section 2.12, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stampacquisition, issueownership, registration, value added, transfer, court or documentary Taxesenforcement, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration holding of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts payment with respect to any payment under a Note or with respect to the Notes or any Note a Guarantee, the Issuer or the relevant Guarantor, as the case may beapplicable, will deliver to not constitute a connection (x) between 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder or beneficial owner of its Notesand the relevant Taxing Jurisdiction or (y) between a fiduciary, and will applysettlor, mutatis mutandisbeneficiary, to any jurisdiction in which any successor Person to the Issuer (member or any Guarantor) is incorporated, engaged in business, organized shareholder or resident for tax purposesother equity owner of, or any jurisdiction from a person having a power over, such Holder or through which payment beneficial owner if such Holder or beneficial owner is made under an estate, a trust, a limited liability company, a partnership, a corporation or with respect to other entity and a relevant Taxing Jurisdiction. For purposes of this Section 2.12 the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.term “
Appears in 1 contract
Additional Amounts. (a) All payments made (including any premium paid upon redemption of the Notes) by or on behalf of the Issuer or any a successor in respect of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any the Guarantors or a successor in respect of the Note Guarantee shall Guarantees will be made free and clear of of, and without withholding or deduction for, for or on account of, any present or future Taxes unless the withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than Brazil, the United States) , the Cayman Islands or any authority therein or thereof or any other jurisdiction in which the Issuer or any Guarantor is the Guarantors (or was incorporatedin each case, engaged in business, their successor) are organized or resident for tax purposes doing business or from or through which payments are made in respect of the Notes, or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision taxing authority thereof or therein (each any of (1) and (2the aforementioned being a “Taxing Jurisdiction”), a “Tax Jurisdiction”unless the Issuer or the Guarantors (or their respective successor) in respect of any payments under are compelled by law to deduct or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premiumwithhold such Taxes. In such event, the Issuer or the relevant GuarantorGuarantors (or their respective successor) will make such deduction or withholding, as applicable, shall make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts (the “Additional Amounts”) as may be necessary in order to ensure that the net amounts received and retained in respect of such payments by each beneficial owner registered Holders of Notes after such withholding or deduction shall equal the respective amounts that of principal and interest (or other amounts stated to be payable under the Notes) which would have been received and retained in respect of such payments the Notes in the absence of such withholding or deduction; provideddeduction (“Additional Amounts”). Notwithstanding the foregoing, however, that no such Additional Amounts shall be payable with respect topayable:
(1i) any Taxesto, or to the extent a third party on behalf of, a Holder or beneficial owner who is liable for such Taxes would not have been imposed but for in respect of such Note by reason of the holder existence of any present or the former connection between such Holder or beneficial owner of the Notes (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, a trust, nominee, a partnership, limited liability company or a corporation) and the relevant Taxing Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or national of, being or incorporated, having been engaged in a trade or business inor present therein or having, being or having been physically present in or having had, a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdictiontherein, other than any connection arising solely from the acquisition, ownership or disposition mere holding of Notes, the exercise Note or enforcement of rights under such Note, the this Indenture or a Note Guarantee, or and the receipt of payments with respect to the Note;
(ii) in respect of such Note Taxes that would not have been so withheld or a Note Guarantee;
(2) any Taxes, to deducted if the extent such Taxes were imposed as a result of the presentation of a Note Notes had been surrendered or presented for payment (where presentation if surrender or presentment is required) not more than 30 days after the relevant payment is first made available for payment to the holder (Relevant Date except to the extent that payments under such Note would have been subject to withholdings and the holder Holder or beneficial owner of such Note would have been entitled to such Additional Amounts had the Amounts, on surrender of such Note been presented for payment on the last day such period of such 30 day period)days;
(3iii) to, or to a third party on behalf of, a Holder or beneficial owner who is liable for such Taxes by reason of such Holder or beneficial owner’s failure to comply, with any certification, identification, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner, if (A) compliance is required by law or an applicable income treaty as a precondition to, exemption from, or reduction in the rate of, the Tax and (B) the Issuer has given the Holders and beneficial owners at least 30 days’ notice that Holders and beneficial owners will be required to provide such certification, identification, documentation or other requirement;
(iv) in respect of any estate, inheritance, gift, salesales, transfer, excise or personal property or similar TaxesTax, other than as provided in Section 4.26(a)(i);
(4v) in respect of any Taxes Tax which is payable other than by deduction or withholding from payments underof principal of (including premium) or interest on the Note; or
(vi) in respect of any combination of the above.
(b) Notwithstanding anything to the contrary in this provision, or with respect tonone of the Issuer, the Notes Guarantors, their respective successors, a paying agent or any Note Guarantee;
(5) other person shall be required to pay any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or Additional Amounts with respect to any payment by in respect of any Taxes imposed under Sections 1471 through 1474 of the Issuer Code, or any successor law or regulation implementing or complying with, or introduced in order to conform to, such sections, or imposed pursuant to any intergovernmental agreement or any agreement entered into pursuant to section 1471(b)(1) of the Guarantors Code.
(c) No Additional Amounts shall be paid with respect to the holder of the Notes if such holder any payment on a Note to a Holder or beneficial owner who is a fiduciary fiduciary, a partnership, a limited liability company or partnership or any person other than the sole beneficial owner of such that payment to the extent that such Taxes payment would be required by the relevant Taxing Jurisdiction to be included in the income, for Tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership, an interest holder in a limited liability company or a beneficial owner who would not have been imposed on such payments entitled to the Additional Amounts had such holder that beneficiary, settlor, member or beneficial owner been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof)Holder.
(bd) If Payments on the Notes are subject in all cases to any Tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above, neither the Issuer or any Guarantor, as nor the case may be, becomes aware that it will Guarantors shall be obligated required to pay Additional Amounts with respect to any payment under Tax imposed by any government or a political subdivision or taxing authority thereof or therein.
(e) In the event that Additional Amounts actually paid with respect to the Notes of the relevant Series are based on rates of deduction or withholding of withholding Taxes in excess of the appropriate rate applicable to the Holder or beneficial owner of such Notes of the relevant Series, and, as a result thereof such Holder or beneficial owner is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding Tax, then such Holder or beneficial owner, as applicable, shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Issuer.
(f) Any reference in this Indenture or the Notes of the relevant Series to principal, interest or any other amount payable in respect of the Notes of the relevant Series by the Issuer or the Note GuaranteeGuarantee by the Guarantors (or their successors) will be deemed also to refer to any Additional Amount, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this provision.
(g) Each of Obligors shall agree that if any of the Issuer or the Guarantors, as applicable, is required under applicable law to make any deduction or withholding on payments of principal of or interest on the Notes of the relevant Series for or on account of any Tax, at least 10 days prior to the first payment date on the Notes of the relevant Series and at least 10 days prior to each payment date thereafter where such withholding is required, the Issuer or the relevant Guarantor, as applicable, shall furnish the case may be, will deliver Trustee and a paying agent with an Officer’s Certificate (but only if there has been any change with respect to the matters set forth in any previously delivered Officer’s Certificate) instructing the Trustee and a paying agent as to whether such payment of principal of or interest on a date that is at least 30 days prior the Notes of the relevant Series shall be made without deduction or withholding for or on account of any Tax, or, if any such deduction or withholding shall be required by the Taxing Jurisdiction, then such certificate shall: (i) specify the amount required to be deducted or withheld on such payment to the date of relevant recipient; (ii) certify 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 relevant Guarantor Guarantors, as applicable, shall notify pay such deduction or withholding amount to the Trustee promptly thereafterappropriate taxing authority; and (iii) an Officer’s Certificate stating certify that 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory Guarantors, as applicable, shall pay or cause to be paid to the Trustee evidencing the payment of or a paying agent such Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate Amounts as conclusive proof that such payments are necessaryrequired by this provision.
(ch) The Issuer Each of the Obligors (or the relevant Guarantor, if it is the applicable withholding agent, their respective successor) will make all withholdings and deductions (within the time period) pay any Taxes required by law and will remit the full amount to be deducted or withheld pursuant to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor law and will furnish to the Trustee (or to a Holder upon request)Holders, within 60 days after the date the such payment of any Taxes so deducted or withheld is madedue, either certified copies of Tax receipts evidencing payment by the Issuer or a Guarantorsuch payment, as the case may beor, or if, notwithstanding if such entity’s efforts to obtain receipts, receipts are not obtainedobtainable, other evidence of such payments (reasonably satisfactory to the Trustee) by such entityHolders.
(di) Whenever in The Issuer or the Indenture Guarantors, as applicable, will pay when due any present or this Note there is mentionedfuture stamp, in any contexttransfer, the payment of amounts based upon the principal amount of the Notes court or of principal, interest documentary Taxes or of any other amount payable under, excise or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will survive any termination, defeasance or discharge of the Indenture, any transfer property Taxes imposed by a holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer Taxing Jurisdiction (or any Guarantorpolitical subdivision or governmental authority thereof or therein having power to Tax) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the initial execution, delivery or registration of the Notes (of the relevant Series or any Note Guarantee) by other document or on behalf of such Person and, in each case, any political subdivision thereof or thereininstrument relating thereto.
Appears in 1 contract
Sources: Indenture (Azul Sa)
Additional Amounts. (a) All payments made by or on behalf of that the Issuer or any of the Guarantors (including, in each case, any successor entity) Company makes under or with respect to the Notes Notes, and that any Guarantor makes under or with respect to any Note Guarantee shall Guarantee, will be made free and clear of and without withholding or deduction for, or on account of, any present or future Taxes tax, duty, levy, assessment or other governmental charge, including any related interest, penalties or additions to tax (“Taxes”), unless the such withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor such deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which either the Issuer Company or any Guarantor is incorporated or was incorporatedorganized, engaged in business, organized business for tax purposes or resident for tax purposes purposes, or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer Company or any Guarantor (includingsuch Guarantor, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2)each, a “Relevant Tax Jurisdiction”) will at any time be required to be made in respect of any payments made by the Company or any such Guarantor under or with respect to the Notes or any Note Guarantee, including, without limitation, including payments of principal, redemption price, purchase price, interest or premium, the Issuer Company or the relevant any such Guarantor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained by each Holder in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall by the applicable withholding agent (including any such withholding or deduction from such Additional Amounts) will equal the respective amounts that would have been received and retained by each Holder in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder existence of any actual or deemed present or former connection between the Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, and the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant (including being a resident of such jurisdiction for Tax Jurisdictionpurposes), other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture enforcement of such Note or a any Note Guarantee, Guarantee or the receipt of any payments in under or with respect of to such Note or a Note Guarantee;
(2) any TaxesTax imposed on or with respect to any payment by the Company or a Guarantor to the Holder if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of 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; 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 (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(34) any estate, inheritance, gift, salesales, transfer, personal property or similar Taxes;
(45) any Taxes imposed by the United States, any state thereof or the District of Columbia, or any subdivision thereof, including U.S. federal withholding taxes and any Taxes under FATCA;
(6) any Taxes payable other than by deduction or withholding from payments under, under or with respect to, the Notes to a Note or any Note GuaranteeGuarantee of such Note;
(57) any Taxes to the extent such Taxes would not have been are imposed or withheld but for by reason of the failure of the holder Holder or beneficial owner of the Notes, following the Issuer’s Notes to comply with any timely reasonable written request of the Company or the Guarantors, as applicable, addressed to the holder at least 60 days before any such withholding Holder or deduction would be imposed, beneficial owner to comply with 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 Holder or beneficial owner is not resident in the Relevant Tax Jurisdiction), but but, in each case, only to the extent the holder Holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) 8) any Taxes tax 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 virtue of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note toso-called Luxembourg Relibi Law dated December 23, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, 2005 as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above)amended; or
(9) any combination of clauses items (1) through (8) above. .
(b) In addition to the foregoing, each of the Issuer Company and the Guarantors will also pay and indemnify the holder Holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxesTaxes, charges duties or similar levies (including related penalties, interest and additions to tax related Tax with respect thereto), except for any Luxembourg registration duties (droits d’enregistrement) payable due to registration of the Indenture, the Notes, any Note Guarantee or any other such document or instrument when such registration is or was not required to maintain or preserve the rights of any Holder under such document, which are levied by any jurisdiction 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 any of this Indenture, the Notes, the Indenture, any Note Guarantee or any other document or instrument referred to therein, or the receipt of any payments under or with respect theretoto, or enforcement of, this Indenture, the Notes, any Note Guarantee or any other such document or instrument. Neither the Company nor a 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 Notes 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 (limited, solely in the case of Taxes attributable to or the receipt of any paymentspayments under or with respect to such Note or a Note Guarantee and limited, solely to the extent of such taxes and similar charges or levies that arise from the receipt of any payments of principal or interest on the Notes, to any such Taxes imposed in a Tax Jurisdiction taxes or similar charges or levies that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof)above.
(bc) If the Issuer Company or any Guarantor, as the case may be, 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, the Issuer Company or the relevant such Guarantor, as the case may beapplicable, 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 after the 30th day less than 30 days prior to that payment date, in which case the Issuer Company or the relevant Guarantor Guarantors, as applicable, shall notify deliver to 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 other information reasonably necessary to enable the Paying Agents Agent to pay such Additional Amounts to Holders on the relevant payment date. The Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely solely on an such Officer’s Certificate as conclusive proof that such payments are necessary.
(cd) The Issuer Company or the relevant Guarantor, if it is the applicable withholding agentas applicable, will make all withholdings and deductions (within the time period) required by law to be withheld or deducted by it and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer Company or the relevant Guarantor Guarantor, as applicable, will use its reasonable efforts to obtain Tax receipts from each relevant Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer Company or the relevant Guarantor Guarantor, as applicable, will furnish to the Trustee (or to a Holder or beneficial owner upon written request), within 60 days a reasonable time after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by or Company or the Issuer or a Guarantor, as the case may beapplicable, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity.
(de) Whenever in the this Indenture or this Note there is mentionedreferred to, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest interest, premium, redemption price or of any other amount payable under, or amounts with respect to, to any of the Notes or any Note GuaranteeNote, such mention reference shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(ef) The preceding above obligations will survive any termination, defeasance or discharge of the this Indenture, any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any successor Persons to the Company or the Guarantors, as applicable, and to any jurisdiction in which any successor Person to the Issuer (Company or any Guarantor) the Guarantors, as applicable, is incorporatedincorporated or organized, engaged in business, organized business for tax purposes or resident for tax purposes, purposes or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person andon any Note, in each caseNote Guarantee, and any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture (Atento S.A.)
Additional Amounts. (a) All payments made by or on behalf the Company in respect of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future Taxes unless the withholding taxes, duties, assessments or deduction other governmental charges of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes whatever nature imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor Company is or was incorporated, engaged in business, organized or is a resident for tax purposes purposes, or any political subdivision thereof or therein or (2) any other jurisdiction from or through which any payment is payments under the Notes are made by or on behalf of the Issuer or any Guarantor (includingCompany, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein thereof, having power to tax (each of (1) and (2a “Relevant Jurisdiction”), a “Tax Jurisdiction”) in respect unless the Company is required by law to deduct or withhold such taxes, duties, assessments, or governmental charges. In such event, the Company will make the required deduction or withholding, make payment of any payments under or with respect the amount so withheld to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall appropriate governmental authority and pay such additional amounts (the “Additional Amounts”) as may be necessary in order to ensure that the net amounts received and retained in respect of such payments by each beneficial owner Holders of Notes after such withholding or deduction shall equal the respective amounts that would have been received and retained in respect of such payments the Notes in the absence of such withholding or deduction; provided, however, that no deduction (“Additional Amounts”). No such Additional Amounts shall be payable with respect topayable:
(1i) any Taxesto, or to a third party on behalf of, a Holder where the extent such Taxes would not have been imposed but for the holder Holder or the beneficial owner is liable for any present or future taxes, duties, assessments or governmental charges in respect of a Note by reason of the Notes existence of any present or former connection between the Holder (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, of the Holder or possessor of a power over, the relevant holderbeneficial owner, if the relevant holder Holder or beneficial owner is an estate, a trust, nominee, a partnership, a limited liability company or a corporation) or beneficial owner and the Relevant Jurisdiction, including, without limitation, the holder or beneficial owner (or the Holder’s or the beneficial owner’s fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or national of, being or incorporated, having been engaged or deemed to be engaged in a trade or business inor present therein or having, being or having been physically present in or having had, a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdictiontherein, other than any connection arising solely from the acquisition, ownership mere holding of the Note or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or and the receipt of payments with respect to the Note;
(ii) in respect of such Note or a Note Guarantee;
Notes surrendered (2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation if surrender is required) more than 30 days after the relevant payment is first made available for payment to the holder (Relevant Date except to the extent that the holder Holder of such Note would have been entitled to such Additional Amounts had the Amounts, on surrender of such Note been presented for payment on the last day of such period of 30 day period)days;
(3iii) in respect of any estatetax, inheritanceduty, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information assessment or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes governmental charge imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes imposed in connection with on a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder Holder where the Holder or beneficial owner of the Notes to the extent such Taxes could would have been avoided able to avoid that withholding or deduction by presenting the relevant Note to, or otherwise accepting payment from, to another Paying Agentpaying agent in a member state of the European Union;
(7iv) in respect of any Taxes tax, duty, assessment or other governmental charge imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed withheld pursuant to current Section Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) as of the Code date of this Indenture (or any amended or successor version described aboveversion); or, current or future U.S. Treasury Regulations issued thereunder or any official interpretation thereof, any agreement entered into pursuant to Section 1471(b) of the Code, 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;
(9v) any combination of clauses (1) through (8) above. In addition to, or to a third party on behalf of, a Holder where the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder Holder or beneficial owner is liable for any present or future stamptaxes, issueduties, registrationassessments or other governmental charges by reason of the Holder’s or beneficial owner’s failure to comply with any certification, value addedidentification or other reporting requirement concerning nationality, residence, identity or connection with the Relevant Jurisdiction, if (1) compliance is required by the Relevant Jurisdiction, as a precondition to, exemption from, or reduction in the rate of, the tax, duty, assessment or other governmental charge and (2) the Company has given at least 30 days’ notice that Holders or beneficial owners will be required to provide this certification, identification or other requirement;
(vi) in respect of any estate, inheritance, gift, sales, transfer, court or documentary Taxescapital gains, or any other excise or personal property taxes, charges or similar levies tax, duty, assessment or governmental charge;
(including penaltiesvii) in respect of any tax, duty, assessment or other governmental charge that is payable otherwise than by deduction or withholding from payments of principal of or interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, Note or registration by direct payment by the Company in respect of claims made against the Company; or
(viii) in respect of any combination of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof)above.
(b) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be obligated to pay No Additional Amounts shall be paid with respect to any payment under on a Note to a Holder who is a fiduciary, a partnership, a limited liability company or other than the sole beneficial owner of that payment to the extent that payment would be required by the laws of the Relevant Jurisdiction to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership, an interest holder in a limited liability company or a beneficial owner who would not have been entitled to the Additional Amounts had that beneficiary, settlor, member or beneficial owner been the Holder. Except as specifically provided above, the Company shall not be required to make any payment with respect to any tax, duty, assessment or governmental charge imposed by any government or political subdivision or taxing authority thereof or therein.
(c) In the event that Additional Amounts actually paid with respect to the Notes described above are based on rates of deduction or withholding of taxes in excess of the appropriate rate applicable to the Holder of such Notes, and, as a result thereof the Holder is entitled to make a claim for a refund or credit of the excess from the authority imposing the withholding tax, then the Holder shall, by accepting the Notes, be deemed to have assigned and transferred all right, title, and interest to any Note Guaranteesuch claim for a refund or credit of such excess to the Company. However, by making such assignment, the Issuer Holder makes no representation or warranty that the relevant Guarantor, as the case may be, Company 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that receive such payments are necessary.
(c) The Issuer claim for a refund or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings credit and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance incurs no other obligation with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entityrespect thereto.
(d) Whenever Any reference in the this Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of to principal, interest or of any other amount payable under, or with in respect to, any of the Notes or any Note Guarantee, such mention shall by the Company will be deemed also to include mention of the payment of refer to any Additional Amounts to the extent that, in such context, Additional Amounts are, were or would Amount that may be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to that amount under the Notes (or any Note Guarantee) by or on behalf of such Person andobligations referred to in this Section, in each case, any political subdivision thereof or thereinunless the context requires otherwise.
Appears in 1 contract
Sources: Indenture (Cosan Ltd.)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect The Company will pay to the Notes holder of this Security or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agentcoupon appertaining hereto who is a United States Alien (as defined below) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “"Additional Amounts”") as may be necessary in order that every net payment of the net amounts received principal of, premium, if any, and retained in respect interest on this Security, after withholding for or on account of any present or future tax, assessment or governmental charge imposed upon or as a result of such payments payment by each beneficial owner of Notes after such withholding the United States or deduction shall equal any A-5PAGE political subdivision or taxing authority thereof or therein, will not be less than the respective amounts that would have been received amount provided herein or in any coupon appertaining hereto to be then due and retained in respect of such payments in the absence of such withholding or deductionpayable; provided, however, that no the foregoing obligation to pay Additional Amounts shall be payable with respect tonot apply to any one or more of the following:
(1a) any Taxestax, to the extent such Taxes assessment or other governmental charge which would not have been so imposed but for (i) the existence of any present or former connection between such holder or the beneficial owner of the Notes (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder stockholder of, or possessor of a person holding a power over, the relevant such holder, if the relevant such holder is an estate, trust, nominee, partnership, limited liability company partnership or corporation) and the United States, including, without limitation, such holder (or such fiduciary, settlor, beneficiary, member, stockholder or person holding a power) being or having been a citizen or resident or national of, treated as a resident thereof or incorporated, being or having been engaged in a trade or business in, therein or being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction therein or having or having had any other a permanent establishment therein, or (ii) such holder's present or former connection with the relevant Tax Jurisdictionstatus as a personal holding company, foreign personal holding company, passive foreign investment company, foreign private foundation or other than any connection arising solely from the acquisition, ownership foreign tax-exempt entity or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture controlled foreign corporation for United States tax purposes or a Note Guaranteecorporation which accumulates earnings to avoid United States Federal income tax, or (iii) such holder's status as a bank extending credit pursuant to a loan agreement entered into in the receipt ordinary course of payments in respect of such Note or a Note Guaranteebusiness;
(2b) any Taxestax, to the extent such Taxes were assessment or other governmental charge which would not have been so imposed as a result of but for the presentation by the holder of a Note this Security or any coupon appertaining hereto for payment (where presentation is required) on a date more than 30 10 days after the relevant date on which such payment is first made available for payment to the holder (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented became due and payable or on the last day of such 30 day period)date on which payment thereof is duly provided, whichever occurs later;
(3c) any estate, inheritance, gift, salesales, transfer, transfer or personal property tax or any similar Taxestax, assessment or other governmental charge;
(4d) any Taxes tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or present or former connection with the United States of the holder or beneficial owner of such Security or any related coupon if such compliance is required by statute, regulation or ruling of the United States or any political subdivision or taxing authority thereof as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(e) any tax, assessment or other governmental charge which is payable other otherwise than by deduction or withholding from payments underof principal of and premium, if any, or with respect to, the Notes or any Note Guaranteeinterest on this Security;
(5f) any Taxes to the extent such Taxes would not have been tax, assessment or other governmental charge imposed on interest received by a person holding, actually or withheld but for the failure constructively, 10% or more of the holder or beneficial owner total combined voting power of all classes of stock of the Notes, following the Issuer’s reasonable written request addressed Company entitled to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentationvote;
(6g) any Taxes tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of, or premium, if any, or interest on this Security or interest on any coupon appertaining thereto if such payment can be made without such withholding by any other paying agent; or
(h) any tax, assessment, or other governmental charge imposed on the disposition of this Security by a person holding at any time, actually or constructively, Securities having a fair market value 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 excess of the Notes to greater of the extent such Taxes could have been avoided by presenting fair market value of 5 percent of (i) the relevant Note to, Company's Common Stock or otherwise accepting payment from, another Paying Agent;
(7ii) any Taxes imposed on or the Securities; nor will Additional Amounts be paid with respect to any payment by the Issuer or any of the Guarantors principal of, premium, if any, or interest on this Security (or cash in lieu of issuance of shares of Common Stock upon conversion) to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment payment, or that is a partnership or fiduciary to the extent that such Taxes beneficial owner, member of such partnership or beneficiary or settlor with respect to such fiduciary would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to had such beneficial owner, member, beneficiary or settlor been the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will survive any termination, defeasance or discharge holder of the 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 Issuer (this Security or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.coupon appertaining hereto;
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of the Issuer Company or any of the Guarantors (including, in each case, any successor entity) ), including amounts payable upon redemption, repurchase or conversion, under or with respect to the Notes or any Note Guarantee shall will be made free and clear of and without withholding or deduction for, or on account of, any present or future Taxes taxes unless the withholding or deduction of such Taxes taxes is then required by law. If the IssuerCompany, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer Company or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer Company or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption priceRedemption Price, purchase price, interest or premium, the Issuer Company or the relevant Guarantor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
(1i) any Taxestaxes, to the extent such Taxes taxes would not have been imposed but for the holder Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder, if the relevant holder Holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having or having had a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the this Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2ii) any Taxestaxes, to the extent such Taxes taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3iii) any estate, inheritance, gift, sale, transfer, personal property or similar Taxestaxes;
(4iv) any Taxes taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5v) any Taxes taxes to the extent such Taxes taxes would not have been imposed or withheld but for the failure of the holder Holder or beneficial owner of the Notes, following the IssuerCompany’s reasonable written request addressed to the holder Holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible to provide such certification or documentation;
(6vi) any Taxes taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder Holder or beneficial owner of the Notes to the extent such Taxes taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agentpaying agent;
(7vii) any Taxes taxes imposed on or with respect to any payment by the Issuer Company or any of the Guarantors to the holder Holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes taxes would not have been imposed on such payments had such holder Holder been the sole beneficial owner of such Note;
(8) viii) any Taxes taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9ix) any combination of clauses (1i) through (8) viii) above. .
(b) In addition to the foregoing, the Issuer Company and the Guarantors will also pay and indemnify the holder Holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxestaxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the this Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes taxes attributable to the receipt of any payments, to any such Taxes taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1i) through (3iii) or (5v) through (9ix) above or any combination thereof).
(bc) If the Issuer Company 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 Note Guarantee, the Issuer Company or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer Company or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates must also set forth any other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to Holders holders on the relevant payment date. The Issuer Company or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(cd) The Issuer Company or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer Company or the relevant Guarantor will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes taxes so deducted or withheld. The Issuer Company or the relevant Guarantor will furnish to the Trustee (or to a Holder of the Notes upon request), within 60 days after the date the payment of any Taxes taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuer Company 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 (reasonably satisfactory to the Trusteetrustee) by such entity.
(de) Whenever in the this Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(ef) The preceding obligations This Section 4.07 will survive any termination, defeasance or discharge of the 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 person to the Issuer Company (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person person and, in each case, any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture (Carnival PLC)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors surviving entity (including, in each case, any successor entityas defined below) under or with respect to the Notes notes or any Note Guarantee shall by the Guarantor under or with respect to the guarantee will be made free and clear of and without withholding or deduction for, or on account of, any present or future Taxes tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and any other liabilitie s related thereto, and, for the avoidance of doubt, including any withholding or deduction for or on account of any of the foregoing) (“Taxes”), unless the withholding or deduction of such Taxes is then required by law. If For these purposes, a “ surviving entity” means any person that the IssuerCompany or the Guarantor consolidate with, merge with or into or enter into any similar transaction with, or convey, transfer or lease all or substantially all of the Company ’s or the Guarantor ’s property and assets to (including any successor thereto), if the resulting, surviving or transferee person is not organized and validly existing under the laws of the United States of America, any Guarantor state thereof or the District of Columbia. To the extent any other applicable deduction or withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which any surviving entity or the Issuer or any Guarantor is or was then incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made or deemed made by or on behalf of any surviving entity or the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agentpaying agent) or any political subdivision thereof or therein (each of (1) and (2), a ““ Tax JurisdictionJurisdiction ”) in respect of ), will at any time be required to be made from any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer such surviving entity or the relevant Guarantor, as applicable, shall Guarantor will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall will equal the respective amounts of cash that would have been received and retained in respect of such payments in the absence of such withholding or deduction; providedprovided , however, that no Additional Amounts shall will be payable with respect to:
(1i) any TaxesTaxes , to the extent such Taxes would not have been imposed but for the holder Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, of or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment incorporated in, the relevant Tax Jurisdiction in which such Taxes are imposed or having or having had any other present or former connection with the relevant Tax Jurisdiction, Jurisdiction other than any connection arising solely from the acquisition, ownership acquisition or disposition holding of Notessuch Notes , the exercise or enforcement of rights under such Note, the Note or this Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guarantee;
(2ii) any TaxesTaxes , to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3iii) any estate, inheritance, gift, sale, transfer, personal property or similar TaxesTaxes ;
(4iv) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5v) any Taxes to the extent such Taxes would not have been are imposed or withheld but for by reason of the failure of the holder Holder or beneficial owner of the Notesnotes, following the IssuerCompany ’s reasonable written request addressed to the holder Holder or beneficial owner at least 60 days before any such withholding or deduction would be imposedapplied to a payment to the Holder or beneficial owner, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible entitled to provide such certification or documentation;
(6vi) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) withheld by or on behalf reason of a holder the failure of the Holder or beneficial owner of the Notes to comply with the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any requirements of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section Sections 1471 through 1474 of the Internal Revenue Code as of 1986, as amended the date hereof (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations promulgated thereunder, the U.S. Treasury Regulations issued thereunder or any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (interpretation thereof or any related law or administrative practices or procedures) implementing the foregoing or any agreements agreement entered into pursuant to current Section 1471(b)(11471(b) of the Code (or any amended or successor version described above); or
(9vii) any combination of clauses (1i) through (8) vii) above. In addition to the foregoing, any surviving entity or the Issuer and the Guarantors Guarantor , as applicable, will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary TaxesTaxes , or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax any other liabilitie s related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the NotesNotes , the Indenturethis Indenture , any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to . If any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) surviving entity or (5) through (9) above or any combination thereof).
(b) If the Issuer or any GuarantorGuarantor , as the case may beapplicable, 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, the Issuer or the relevant Guarantor, as the case may be, it 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 after the 30th 30 th day prior to that payment date, in which case the Issuer or the relevant Guarantor it 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 other information reasonably necessary to enable the Paying Agents paying agents to pay Additional Amounts to Holders holders on the relevant payment date. The Issuer Any such surviving entity or the relevant Guarantor , as applicable, will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional AmountsAmounts . The Trustee Truste e shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer , and may conclusively presume that no payments are necessary unless and until it receives any such Officer’s Certificate . Any such surviving entity or the relevant GuarantorGuarantor , if it is the applicable withholding agentas applicable, will make all withholdings and deductions (within the time periodperiod and in the minimum amount) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer Any such surviving entity or the relevant Guarantor , as applicable, will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes Taxe s so deducted or withheld. The Issuer Any such surviving entity or the relevant Guarantor , as applicable, will furnish to the Trustee (or to a Holder upon request), 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 such surviving entity or the Issuer or a Guarantor, as the case may beGuarantor , or if, notwithstanding such entitysurviving entity ’s or the Guarantor ’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the TrusteeTrustee ) by such entity.
(d) surviving entity or the Guarantor , as applicable. Whenever in this Indenture , the Indenture Notes or this Note in the Private Placement Circular there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) . The preceding obligations in this Section 2.11 will survive any termination, defeasance or discharge of the Indenturethis Indenture , any transfer by a holder Holder or beneficial owner of its NotesNotes , and will apply, mutatis mutandis, to any jurisdiction in which any surviving person or any successor Person person to the Issuer (Company or any Guarantor) the Guarantor is incorporated, engaged in business, organized or resident for tax purposes, purposes or any jurisdiction from or through which such Person makes any payment is made under or with respect to on the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, and any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture
Additional Amounts. (a) All Except as provided below, the Company or any Guarantor shall make all payments made by of principal and interest on the Securities without withholding or deduction for or on behalf account of any present or future taxes, duties, assessments, fees, levies or other governmental charges of any nature and any fines, penalties or interest related thereto (collectively, "Taxes") imposed by Brazil or the Issuer jurisdiction in which the Paying Agent or any of the Guarantors (includingGuarantor is organized or from or through which payment is made, or in each case, any successor entity) under political subdivision or with respect governmental authority of those jurisdictions having the power to the Notes or any Note Guarantee shall be made free and clear of and without withholding or deduction fortax (each, or on account of, any present or future Taxes unless the withholding or deduction of such Taxes is then required by lawa "Taxing Jurisdiction"). If the Issuer, Company or any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any such Taxes, 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 for, as they would have received without such withholding or on account of, any Taxes imposed or levied by or on behalf of deduction (1) any jurisdiction (other than the United States) in which the Issuer "Additional Amounts"). The Company or any Guarantor shall not, however, pay any Additional Amounts in connection with any Tax that is imposed due to or was incorporated, engaged in business, organized or resident for tax purposes or respect of any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer following: 128
(i) the Holder or any Guarantor beneficial owner has some connection (includingpresent or former) with the Taxing Jurisdiction other than merely holding the Securities or receiving principal or interest payments on 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 jurisdiction Taxing Jurisdiction);
(ii) any Tax imposed on, or measured by, net income;
(iii) the failure of any Paying Agent) a Holder to comply with a request by the Company or any political subdivision thereof Guarantor to satisfy any certification, identification or therein (each other reporting requirements, imposed as a precondition to exemption from or reduction in the rate of (1) and (2)such tax by statute, treaty, regulation or administrative practices, concerning nationality, residence or connection with a “Tax Taxing Jurisdiction”) in respect of any payments under or ; provided that at least 30 days prior to the first payment date with respect to the Notes which compliance with such certification, identification or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premiumother reporting requirement is required, the Issuer Holder has been notified by the Company or the relevant Guarantor, as applicable, shall pay Paying Agent that such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder compliance is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect of such Note or a Note Guaranteerequired;
(2iv) any Taxesif, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) more than , the Holder has failed to present its Securities within 30 days after the relevant date such payment was due and payable or such payment was provided for, whichever is first made available for payment to the holder (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period)later;
(3v) 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 by presenting the relevant Securities for payment to, another paying agent located in a member state of the European Union;
(vii) any estate, inheritance, gift, salesales, transfer, personal property or other similar Taxes;taxes; and
(4viii) any Taxes Tax which is payable other otherwise than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on made under or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof)Securities.
(b) If the Issuer The Company or any Guarantor shall also (i) make such withholding or deduction and (ii) remit the full amount withheld or deducted to the 129 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 such Guarantor. Upon written request from any Holder to the Trustee, copies of such receipts or other documentation, as the case may be, becomes aware that it will 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 any payment under or with respect to such payment, the Notes Company or any Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will Guarantor 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate officers' certificate stating the fact that Additional Amounts will be payable, the amounts so payable and the amount estimated to be so payable. The Officer’s Certificate must also set setting forth any such other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to Holders on the relevant payment date. The Issuer or the relevant Guarantor will provide as the Trustee with documentation may reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessaryrequire for tax purposes.
(c) The Issuer Company or any Guarantor shall, upon the relevant Guarantorwritten request of any Holder, if it is indemnify and hold harmless and reimburse such Holder for the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer or the relevant Guarantor will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes imposed by any Taxing Jurisdiction (other than any such Taxes for which the Holder would not have been entitled to receive Additional Amounts pursuant to any of the conditions described in the second paragraph of this Section 10.12, or Taxes that result from the gross negligence or unreasonable delay of such Holder) so deducted or withheld. The Issuer or the relevant Guarantor will furnish to the Trustee (or to imposed on, and paid by, such Holder as a Holder upon request), within 60 days after the date the result of any payment of any Taxes principal or interest on the Securities, so deducted or withheld is made, certified copies of Tax receipts evidencing payment by that the 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 (reasonably satisfactory to the Trustee) net amount received by such entityHolder after such reimbursement would not be less than the net amount the Holder would 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.
(d) Whenever 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 Indenture Securities and shall indemnify the Holders for any such taxes paid by Holders.
(e) If European Council Directive 2003/48/EC or this Note there 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 any contexta member state of the European Union, the payment of amounts based upon 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 principal amount of Directive; provided that the Notes Company shall not be required to maintain any such paying agent if doing so would be detrimental to the Company or of any Guarantor.
(f) All references to principal, interest or of any other amount amounts payable under, or with respect to, any of on the Notes or any Note Guarantee, such mention Securities shall be deemed to include mention of the payment of any Additional Amounts to payable by the extent that, in such context, Additional Amounts are, were Company or would be payable in respect thereof.
(e) any Guarantor under the Securities or this Indenture. The preceding foregoing obligations will shall survive any termination, defeasance or discharge of the Securities and 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 Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.. 130
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes (whether or not in the form of Definitive Registered Notes) or any Note of the Guarantors with respect to any Guarantee shall 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 of for, or on account of, such Taxes is then required by lawlaw or by the interpretation or administration thereof. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is then incorporated or was incorporatedorganized, engaged in business, organized business for tax purposes or otherwise resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, including the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2)each, a “Tax Jurisdiction”) in respect of will at any time be required to be made from any payments made by or on behalf of the Issuer under or with respect to the Notes or any Note of the Guarantors under or with respect to any Guarantee, including, without limitation, including payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes Holder after such deduction or withholding (including any such withholding or deduction shall from such Additional Amounts) will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder existence of any present or former connection between the Holder or the beneficial owner of the Notes (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder, if the relevant holder Holder is an estate, trust, nominee, partnership, limited liability company or corporation, in each case even if the payment is required to be made to such person by the laws of the Tax Jurisdiction) and the relevant Tax Jurisdiction (including being or having been a citizen or resident citizen, resident, or national of, thereof or incorporated, being or having been present or engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction therein or having or having had any other present or former connection with the relevant Tax Jurisdictiona permanent establishment therein), other than but excluding any connection arising solely merely from the acquisition, ownership or disposition holding of Notessuch Note, the exercise or enforcement of rights under such Note, the Indenture Note or under a Note Guarantee, Guarantee or the receipt of any payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where Notes are in the form of Definitive Registered Notes and presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, salesales, excise, transfer, personal property or similar Taxes;
(4) any Taxes withheld or deducted on a payment to an individual or to the benefit of an individual that are 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, 2000 on the taxation of savings income, or any law implementing or complying with or introduced in order to conform to, such directive or pursuant to any European Union legislation amending or replacing such directive;
(5) Taxes imposed on or with respect to a payment made to a Holder or beneficial owner of Notes who would have been able to avoid such withholding or deduction by presenting the relevant Note to another Paying Agent in a member state of the European Union;
(6) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any Note Guarantee;
(57) any Taxes Taxes, to the extent such Taxes would not have been are imposed or withheld but for by reason of the failure of the holder Holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder Holder or beneficial owner (and made at least 60 days before any such withholding a time that would enable the Holder or deduction would be imposedbeneficial owner acting reasonably to comply with that request), to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) 8) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors Guarantor to the holder of the Notes Holder if such holder Holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments payment had such holder Holder been the sole beneficial owner of such Note;
(8) 9) any Taxes that are imposed pursuant to current Section Sections 1471 through to 1474 of the United States Internal Revenue Code of 1986, as amended (the “Code”) amended, including any current or any amended former Treasury regulations or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any other official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above)guidance thereunder; or
(910) any combination of clauses (1) through (8) 9) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder Holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxestaxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax any other reasonable expenses properly incurred related thereto) which are levied by any jurisdiction Tax Jurisdiction on the execution, delivery, issuance, issuance or registration of any of the Notes, the this Indenture, any Note Guarantee or any other document or instrument referred to therein, therein (other than a transfer of the Notes after the offering of the Initial Notes) or the receipt of any payments with respect thereto, or enforcement any such taxes, charges or similar levies imposed by any jurisdiction as a result of, or in connection with, the enforcement of any of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) Guarantee. If the 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 Note Guarantee, each of the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee and each Paying Agent 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 less than 30 days prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee and each Paying Agent 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 Certificate(s) 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 Issuer or Trustee and the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee Paying Agent shall be entitled to rely absolutely solely on an such Officer’s Certificate as conclusive proof that such payments are necessary.
(c) . The Issuer or the relevant Guarantor, if it is the applicable withholding agent, Guarantor will make all withholdings and deductions (within the time period) required by law with respect to any payment under or relating to the Notes or any Guarantee and will timely remit the full amount so deducted or withheld to the relevant Tax tax authority in accordance with applicable law. The Issuer or the relevant Guarantor will use its reasonable efforts to obtain Tax tax receipts from each Tax tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request)and the relevant Paying Agent, within 60 days a reasonable time after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax tax receipts evidencing payment by the 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 (reasonably satisfactory to the Trustee) by such entity.
(d) . Each Paying Agent shall be entitled to make payments net of any taxes or other sums required by any applicable law to be withheld or deducted. Whenever in the this Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) . The preceding above obligations will survive any termination, defeasance or discharge of the Indenturethis Indenture or any Guarantee, any transfer by a holder Holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor) Guarantor is incorporated, engaged in business, organized business for tax purposes or otherwise resident for tax purposes, purposes or any jurisdiction from or through which such Person makes any payment is made under or with respect to on the Notes (or any Note Guarantee) by and any department or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture (Twist Beauty S.a r.l. & Partners S.C.A.)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Note Guarantors (including, in each case, any successor entity) under or with respect to the Notes or 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 Taxes unless the withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes taxes imposed or levied by or on behalf of (1i) any jurisdiction (other than the United States) in which the Issuer (including any surviving corporation) is then incorporated, organized or resident for tax purposes or any political subdivision thereof or therein, (ii) any jurisdiction in which the Parent Guarantor is or was then incorporated, engaged organized or resident for tax purposes or any political subdivision thereof or therein, (iii) any jurisdiction in businesswhich any Subsidiary Guarantor is then incorporated, organized or resident for tax purposes or any political subdivision thereof or therein or (2iv) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) Agent or any political subdivision thereof or therein (each of (1i), (ii), (iii) and (2iv), a “Tax Jurisdiction”) in respect ), unless the withholding or deduction of such taxes is then required by law or by the interpretation or administration thereof. If any deduction or withholding for, or on account of, any taxes imposed or levied by or on behalf of any Tax Jurisdiction shall at any time be required to be made from any payments made under or with respect to the Notes or with respect to any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Note Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes Holder (including Additional Amounts) after such withholding withholding, deduction or deduction imposition shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1i) any Taxes, to the extent such Taxes taxes that would not have been imposed but for the holder Holder of a Note or the beneficial owner of a Note having a present or former connection with the Notes Tax Jurisdictions in which such taxes are imposed (or a fiduciaryincluding, settlorwithout limitation, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present incorporated in or having carrying on a business or maintaining a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant physical presence in such Tax Jurisdiction, ) other than any connection arising solely from the mere acquisition, ownership holding, enforcement or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments payment in respect of such Note or a any Note Guarantee;
(2ii) any Taxes, to the extent such Taxes were U.S. federal withholding taxes;
(iii) [reserved];
(iv) any taxes that are imposed or withheld as a result of the presentation failure of the Holder of a Note or beneficial owner of a Note to comply with any requirement imposed by law, regulation, administrative practice or by an applicable income tax treaty to which the tax jurisdiction of such Holder or beneficial owner is a party or with any timely reasonable written request, made to such Holder or beneficial owner, by the Issuer or any of the Note Guarantors, in each case, to provide timely and accurate information concerning the nationality, residence or identity of such Holder or beneficial owner or an appropriate tax file number, Australian Business Number, or other number or exemption details 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 Tax Jurisdiction as a precondition to any exemption from or reduction in all or part of such taxes to which such Holder or beneficial owner is entitled;
(v) any Note presented for payment (where Notes are in the form of definitive registered Notes and presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to such Additional Amounts had the Note been presented on the last day of such 30 day period);
(3vi) any payment of principal or interest on a Note made to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note;
(vii) any estate, inheritance, gift, saleuse, sales, excise taxes imposed on the transfer of Notes, transfer, value added, personal property or similar Taxestaxes, assessments or other governmental charges;
(4viii) any Taxes Note presented for payment by or on behalf of a Holder of Notes who would have been able to avoid such withholding or deduction by presenting the relevant Note to another Paying Agent;
(ix) any taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any Note Guarantee;
(5x) any Taxes to the extent such Taxes would not have been taxes imposed or withheld but for the failure by reason of such Holder being an “offshore associate” (as defined in Section 128F(6) of the holder or beneficial owner Income Tax Assessment Act 1936 of Australia (the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice “Australian Tax Act”)) of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Note Guarantors to not acting in the holder capacity of a clearing house, paying agent, custodian, funds manager or responsible entity of a registered scheme within the meaning of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner Corporations Act 2001 of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such NoteAustralia;
(8) xi) any Taxes that are taxes imposed pursuant to current Section 1471 through 1474 or withheld by reason of the Internal Revenue Code Australian Commissioner of 1986, as amended Taxation giving a notice under section 255 of the Australian Tax Act or section 260-5 of Schedule 1 to the Taxation Administration Act 1953 of Australia;
(the “Code”xii) any applicable tax required to be withheld or any amended or successor version that is substantively comparable and not materially more onerous deducted under Sections 1471 to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) 1474 of the Code (or any amended or successor version described aboveversions of such Sections) (“FATCA”), any regulations or 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 or an intergovernmental agreement; or
(9xiii) any combination of clauses items (1i) through (8) xii) above. .
(b) In addition to the foregoing, the Issuer and the Note Guarantors will shall also pay and indemnify indemnify, the holder Trustee, the Paying Agents and the Holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxestaxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) taxes which are levied by any jurisdiction Tax Jurisdiction on the execution, delivery, issuance, registration or registration enforcement of any of the Notes, the this Indenture, any Note Guarantee 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 (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(bc) If the Issuer or any Note Guarantor, as the case may be, becomes aware that it will shall be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guarantee, the Issuer or the relevant Note Guarantor, as the case may be, will shall deliver to the Trustee on a date that is at least 30 10 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 30th 10th day prior to that payment date, in which case the Issuer or the relevant Note Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will shall 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 Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary and the amount of such payment. Unless and until the Trustee receives such an Officer’s Certificate with respect to Additional Amounts, the Trustee may conclusively and without liability assume that no Additional Amounts are due. The Issuer or the relevant Note Guarantor will shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(cd) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will Note Guarantor shall make all withholdings and deductions (within the time period) required by law and will shall remit the full amount deducted or withheld to the relevant Tax taxing authority in accordance with applicable law. The Upon request, the Issuer or the relevant Note Guarantor will use its reasonable efforts shall provide to obtain Tax the Trustee an official receipt or, if official receipts from each Tax authority are not obtainable, other documentation satisfactory to the Trustee evidencing the payment of any Taxes taxes so deducted or withheld. The Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon Upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax those receipts evidencing payment by the Issuer or a Guarantorother documentation, as the case may be, shall be made available by the Issuer or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory relevant Note Guarantor to the Trustee) by such entityHolders or beneficial owners of the Notes.
(de) Whenever in the this Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note GuaranteeGuarantee (as the case may be), such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(ef) The preceding above obligations will shall survive any termination, defeasance or discharge of the Indenture, this Indenture and any transfer by a holder Holder or beneficial owner of its Notes, Notes and will apply, shall apply mutatis mutandis, mutandis to any jurisdiction in which any successor Person person to the Issuer (or any Guarantor) Note Guarantor is incorporated, engaged in business, organized or resident for tax purposes, purposes or any jurisdiction from or through which such person makes any payment is made under or with respect to on the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, and any political subdivision thereof or therein.
Appears in 1 contract
Additional Amounts. (a) All payments made (including any premium paid upon redemption of the New 2030 Second Out Notes) by or on behalf of the Issuer or any a successor in respect of the Guarantors (including, in each case, any successor entity) under or with respect to the New 2030 Second Out Notes or any the Guarantors or a successor in respect of the New 2030 Second Out Note Guarantee shall Guarantees will be made free and clear of of, and without withholding or deduction for, for or on account of, any present or future Taxes unless the withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than Brazil, the United States) States or any authority therein or thereof or any other jurisdiction in which the Issuer or any Guarantor is the Guarantors (or was incorporatedin each case, engaged in business, their successor) are organized or resident for tax purposes doing business or from or through which payments are made in respect of the New 2030 Second Out Notes, or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision taxing authority thereof or therein (each any of (1) and (2the aforementioned being a “Taxing Jurisdiction”), a “Tax Jurisdiction”unless the Issuer or the Guarantors (or their respective successor) in respect of any payments under are compelled by law to deduct or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premiumwithhold such Taxes. In such event, the Issuer or the relevant GuarantorGuarantors (or their respective successor) will make such deduction or withholding, as applicable, shall make payment of the amount so withheld to the appropriate Governmental Authority and pay such additional amounts (the “Additional Amounts”) as may be necessary in order to ensure that the net amounts received and retained in respect by registered Holders of such payments by each beneficial owner of New 2030 Second Out Notes after such withholding or deduction shall equal the respective amounts that of principal and interest (or other amounts stated to be payable under the New 2030 Second Out Notes) which would have been received and retained in respect of such payments the New 2030 Second Out Notes in the absence of such withholding or deduction; provideddeduction (“additional amounts”). Notwithstanding the foregoing, however, that no Additional Amounts such additional amounts shall be payable with respect topayable:
(1i) any Taxesto, or to the extent a third party on behalf of, a Holder or beneficial owner who is liable for such Taxes would not have been imposed but for in respect of such New 2030 Second Out Note by reason of the holder existence of any present or the former connection between such Holder or beneficial owner of the Notes (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, a trust, nominee, a partnership, limited liability company or a corporation) and the relevant Taxing Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or national of, being or incorporated, having been engaged in a trade or business inor present therein or having, being or having been physically present in or having had, a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdictiontherein, other than any connection arising solely from the acquisition, ownership or disposition mere holding of Notes, the exercise New 2030 Second Out Note or enforcement of rights under such Note, the this Indenture or a Note Guarantee, or and the receipt of payments with respect to the New 2030 Second Out Notes;
(ii) in respect of such Note Taxes that would not have been so withheld or a Note Guarantee;
(2) any Taxes, to deducted if the extent such Taxes were imposed as a result of the presentation of a Note New 2030 Second Out Notes had been surrendered or presented for payment (where presentation if surrender or presentment is required) not more than 30 days after the relevant payment is first made available for payment to the holder (Relevant Date except to the extent that payments under such New 2030 Second Out Note would have been subject to withholdings and the holder Holder or beneficial owner of such New 2030 Second Out Note would have been entitled to Additional Amounts had the such additional amounts, on surrender of such New 2030 Second Out Note been presented for payment on the last day of such period of 30 day period)days;
(3iii) to, or to a third party on behalf of, a Holder or beneficial owner who is liable for such Taxes by reason of such Holder or beneficial owner’s failure to comply, with any certification, identification, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner, if (A) compliance is required by law or an applicable income treaty as a precondition to, exemption from, or reduction in the rate of, the Tax and (B) the Issuer has given the Holders and beneficial owners at least 30 days’ notice that Holders and beneficial owners will be required to provide such certification, identification, documentation or other requirement;
(iv) in respect of any estate, inheritance, gift, salesales, transfer, excise or personal property or similar TaxesTax, other than as provided in Section 4.26(a)(i);
(4v) in respect of any Taxes Tax which is payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
of principal of (5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”including premium) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and interest on the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above)New 2030 Second Out Notes; or
(9vi) in respect of any combination of clauses (1) through (8) the above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture (Azul Sa)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) Guarantor under or with respect to the Notes or the Guarantees, including any Note Guarantee consideration transferred in connection with a conversion of Notes (whether Cash Settlement, Physical Settlement or Combination Settlement), shall be made free and clear of and without withholding or deduction for, for or on account of, of any present or future Taxes Taxes, unless the withholding or deduction of such Taxes is then required by lawapplicable Law. If the Issuer, any Guarantor withholding or any other applicable withholding agent is required by law to withhold or deduct any amount deduction for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor (including any successor or other surviving entity) is or was then incorporated, organized, engaged in business, organized business or resident for tax purposes or any political subdivision or taxing authority thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agentpaying agent) or any political subdivision thereof or therein (each of clauses (1) and (2), a “Tax Jurisdiction”) in respect of will at any time be required to be made from any payments made under or with respect to the Notes or any Note Guaranteethe Guarantees, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner Holder (including payments of Notes Additional Amounts) after such withholding or deduction shall will equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, provided that no Additional Amounts shall will be payable with respect to:to any of the following (referred to herein as “Excluded Taxes”):
(1i) any Taxes, to the extent such Taxes that would not have been imposed but for the holder Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner ofpartner, member or shareholder ofof the Holder, or possessor as the case may be) of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) Notes being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present organized in or having carrying on a permanent establishment in, business in the relevant Tax Jurisdiction in which such Taxes are imposed or having or having had any other present or former connection with the relevant Tax Jurisdiction, Jurisdiction other than any connection arising solely from the mere acquisition, ownership holding, disposition, enforcement or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments payment in respect of such Note or a Note Guaranteethe Notes;
(2ii) any Taxes, to the extent such Taxes were 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 made, by the Issuer, any Guarantor 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, but only to the extent that the Holder or beneficial owner is legally eligible to provide such evidence and such compliance is not more onerous to the Holder or beneficial owner than would be comparable certification, information, documentation or other reporting requirements imposed under U.S. tax law, regulation and administrative practice (such as IRS Forms W-8 and W-9 or any comparable successor forms);
(iii) any Taxes imposed with respect to any Note presented for payment (where presentation is requiredrequired for payment) more than 30 days after the date on which the relevant payment is first made available for became due and payable or the date on which payment to the holder thereof is duly provided for, whichever is later (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Note been presented on the last any day of during such 30 30-day period);
(3iv) any estate, inheritance, gift, salesales, transfer, personal property or similar Taxes;
(4v) any Taxes payable other than by deduction Tax required to be withheld or withholding from payments underdeducted under Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended, or with respect toany amended or successor versions of such Sections (“FATCA”), the Notes any regulations or other guidance thereunder, or any Note Guaranteeagreement (including any intergovernmental agreement) entered into in connection therewith, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreement in respect of FATCA;
(5vi) other than with respect to the initial Holder of the Notes, any Taxes to withheld, deducted or imposed because the extent such Taxes would not have been imposed or withheld but for the failure of the holder Holder or beneficial owner of the Notes, following or any other person entitled to payments under the IssuerNotes, does not deal at arm’s reasonable written request addressed to length with the holder at least 60 days before any such withholding Issuer or deduction would be imposed, to comply with any certification, identification, information a relevant Guarantor or other reporting requirements, whether required by statute, treaty, regulation paying agent for purposes of the Income Tax Act (Canada) or administrative practice of is a Tax Jurisdiction, as a precondition to exemption fromperson who is, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitationwho does not deal at arm’s length with, a certification that person who is a “specified shareholder” (as defined in subsection 18(5) of the holder Income Tax Act (Canada)) of the Issuer or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder a relevant Guarantor or beneficial owner is legally eligible to provide such certification or documentationpaying agent at a relevant time;
(6vii) any Taxes withheld, deducted or imposed in connection with on a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder or beneficial owner of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder to a Holder that is a fiduciary or fiduciary, a partnership or any a person other than the sole beneficial owner of any such payment, if a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments entitled to the payment of Additional Amounts had such holder it been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 Holder of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above)Note; or
(9viii) any combination of clauses (1i) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related theretovii) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereofthis Section 4.21(a).
(b) If the Issuer or any Guarantor, as the case may be, 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 GuaranteeNotes, the Issuer or the relevant Guarantor, as the case may be, will 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate must also set forth any other information reasonably necessary to enable the Paying Agents Agent to pay Additional Amounts to Holders on the relevant payment date. The Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely solely on an such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuer shall provide the Trustee with documentation reasonably satisfactory to each of them evidencing the payment of Additional Amounts.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will Guarantor shall make all withholdings and deductions (within the time period) required by law Law and will remit the full amount deducted or withheld to the relevant Tax taxing authority in accordance with applicable lawLaw. The Upon request, the Issuer or will provide to the relevant Guarantor will use its reasonable efforts Trustee an official receipt or, if official receipts are not obtainable, other documentation reasonably satisfactory to obtain Tax receipts from each Tax authority the Trustee evidencing the payment of any Taxes so deducted or withheld. The Issuer or shall be responsible for making all calculations called for under this Indenture and the relevant Guarantor will furnish to Notes, and the Trustee (or shall be entitled to a Holder upon request), within 60 days after the date the payment of conclusively rely on any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuer or a Guarantor, as the case may be, or if, notwithstanding such entitycalculation provided for in an Officer’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entityCertificate.
(d) Whenever in the this Indenture or this Note there is mentioned, in any context, context (i) the payment of amounts based upon the principal amount (and premium, if any), (ii) redemption prices or purchase prices in connection with a redemption or repurchase of the Notes Notes, (iii) interest, or of principal, interest or of (iv) any other amount payable under, under or with respect to, to any of the Notes or any Note GuaranteeNotes, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will survive any terminationIssuer and the Guarantors, defeasance or discharge of jointly and severally, shall indemnify the Indenture, any transfer by a holder Trustee and each Holder or beneficial owner of its Notesthe Notes for and hold them harmless against the full amount of (i) any Taxes, and will applyother than Excluded Taxes, mutatis mutandis, to any jurisdiction in which any successor Person to paid by the Issuer (Trustee or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, Paying Agent or any jurisdiction from Holder or through which payment is beneficial owner of the Notes in connection with payments made under or with respect to the Notes or the Guarantees held by such Holder or beneficial owner, including any consideration transferred in connection with a conversion of Notes (whether Cash Settlement, Physical Settlement or Combination Settlement), 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 the Trustee or any Note Guarantee) by Paying Agent or on behalf such Holder or beneficial owners, shall be conclusive absent manifest error. The Issuer shall pay, and indemnify the Trustee, the Paying Agent and each Holder or beneficial owner of such Person the Notes for, any present or future stamp, issue, registration, transfer, court or documentary taxes or any other excise, property or similar Taxes that arise in any relevant Tax Jurisdiction (and, in each casethe case of enforcement, any political subdivision thereof jurisdiction) from the execution, issuance, delivery or thereinenforcement of the Notes, the Guarantees, this Indenture or any other document or instrument in relation thereto, or the receipt of any payments, including any consideration transferred in connection with a conversion of Notes (whether Cash Settlement, Physical Settlement or Combination Settlement), with respect to the Notes or any Guarantees.
Appears in 1 contract
Sources: Business Combination Agreement (M3-Brigade Acquisition III Corp.)
Additional Amounts. (a) All payments made by or on behalf the Company in respect of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall the Guarantors in respect of the 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 unless the withholding or deduction of such Taxes is then required by law. If the Issuertaxes, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount forduties, assessments, or on account of, any Taxes other governmental charges of whatever nature imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer Brazil, or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or authority therein or (2) any jurisdiction from or through which any payment is made by or on behalf thereof in the case of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any other jurisdiction in which any Guarantor is organized having power to tax in the case of payments under the Note GuaranteeGuaranty, includingunless the Company or the Guarantors are compelled by law to deduct or withhold such taxes, without limitationduties, payments of principalassessments, redemption price, purchase price, interest or premiumgovernmental charges. In such event, the Issuer Company or the relevant GuarantorGuarantors will make such deduction or withholding, as applicable, shall make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts (the “Additional Amounts”) as may be necessary in order to ensure that the net amounts received and retained in respect of such payments receivable by each beneficial owner Holders of Notes after such withholding or deduction shall equal the respective amounts that of principal and interest which would have been received and retained receivable in respect of such payments the Notes in the absence of such withholding or deduction; provided, however, that no deduction (“Additional Amounts”). No such Additional Amounts shall be payable with respect topayable:
(1i) any Taxesto, or to the extent a third party on behalf of, a Holder who is liable for such Taxes would not have been imposed but for the holder taxes, duties, assessments or the beneficial owner governmental charges in respect of such note by reason of the Notes existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, a trust, nominee, a partnership, limited liability company or a corporation) and Brazil, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or national of, being or incorporated, having been engaged in a trade or business inor present therein or having, being or having been physically present in or having had, a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdictiontherein, other than any connection arising solely from the acquisition, ownership or disposition mere holding of Notes, the exercise Note or enforcement of rights under such Note, the Indenture or a Note Guarantee, or and the receipt of payments with respect to the Note;
(ii) in respect of such Note or a Note Guarantee;
Notes surrendered (2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation if surrender is required) more than 30 days after the relevant payment is first made available for payment to the holder (Relevant Date except to the extent that payments under such Note would have been subject to withholdings and the holder Holder of such Note would have been entitled to such Additional Amounts had the Amounts, on surrender of such Note been presented for payment on the last day of such period of 30 day period)days;
(3iii) where such Additional Amount is imposed on a payment to an individual and is required to be made pursuant to any law implementing or complying with, or introduced in order to conform to, any European Union Directive on the taxation of savings;
(iv) to, or to a third party on behalf of, a Holder who is liable for such taxes, duties, assessments or other governmental charges by reason of such Holder’s failure to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with Brazil, or a successor jurisdiction or applicable political subdivision or authority thereof or therein having power to tax, of such Holder, if (1) compliance is required by such jurisdiction, or any political subdivision or authority thereof or therein having power to tax, as a precondition to, exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and (2) the Company has given the Holders at least 30 days’ notice that Holders will be required to provide such certification, identification or other requirement;
(v) in respect of any estate, inheritance, gift, salesales, transfer, capital gains, excise or personal property or similar Taxestax, assessment or governmental charge;
(4vi) in respect of any Taxes tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments under, of principal of or with interest on the Note or by direct payment by the Company or the Guarantors in respect to, of claims made against the Notes Company or any Note Guarantee;the Guarantors; or
(5vii) in respect of any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure combination of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;above.
(6b) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or No Additional Amounts shall be paid with respect to any payment by the Issuer or any of the Guarantors on a Note to the holder of the Notes if such holder a Holder who is a fiduciary fiduciary, a partnership, a limited liability company or partnership or any person other than the sole beneficial owner of such that payment to the extent that such Taxes payment would be required by the laws of Brazil or any political subdivision thereof to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership, an interestholder in a limited liability company or a beneficial owner who would not have been imposed on such payments entitled to the Additional Amounts had such holder that beneficiary, settlor, member or beneficial owner been the sole beneficial owner of such Note;
(8) Holder. The Notes are subject in all cases to any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986tax, as amended (the “Code”) fiscal or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related other law or regulation or administrative practices or procedures) implementing judicial interpretation. Except as specifically provided above, neither the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and Company nor the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions shall be required to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in make a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts payment with respect to any payment under tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
(c) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or any Note Guaranteewithholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, the Issuer or the relevant Guarantorand, as a result thereof such Holder is entitled to make claim for a refund or credit of such excess from the case may beauthority imposing such withholding tax, will deliver then such Holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entityCompany.
(d) Whenever Any reference in the this Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of to principal, interest or of any other amount payable under, or with in respect to, any of the Notes by the Company or any the Note Guarantee, such mention shall Guaranty by the Guarantors will be deemed also to include mention of refer to any Additional Amount, unless the payment of Additional Amounts to the extent thatcontext requires otherwise, in such context, Additional Amounts are, were or would that may be payable with respect to that amount under the obligations referred to in respect thereof.
(e) this Section. The preceding obligations foregoing obligation will survive any termination, defeasance termination 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture (Cosan Ltd.)
Additional Amounts. (a) All payments made by or on behalf the Company in respect of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee the Guarantors in respect of the Guarantees shall be made free and clear of and without withholding or deduction for, for or on account of, of any present or future Taxes unless the withholding or deduction of such Taxes is then required by law. If the Issuertaxes, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount forduties, assessments, or on account of, any Taxes other governmental charges of whatever nature imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer Brazil, or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or authority therein or (2) any jurisdiction from or through which any payment is made by or on behalf thereof in the case of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any other jurisdiction in which any Guarantor is organized having power to tax in the case of payments under the Note GuaranteeGuaranty, includingunless the Company or the Guarantors are compelled by law to deduct or withhold such taxes, without limitationduties, payments of principalassessments, redemption price, purchase price, interest or premiumgovernmental charges. In such event, the Issuer Company or the relevant GuarantorGuarantors shall make such deduction or withholding, as applicable, shall make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts (the “Additional Amounts”) Amounts as may be necessary in order to ensure that the net amounts received and retained in respect of such payments receivable by each beneficial owner Holders of Notes after such withholding or deduction shall equal the respective amounts that of principal and interest which would have been received and retained receivable in respect of such payments the Notes in the absence of such withholding or deduction; provided, however, that no deduction (“Additional Amounts”). No such Additional Amounts shall be payable with respect topayable:
(1i) any Taxesto, or to the extent a third party on behalf of, a Holder who is liable for such Taxes would not have been imposed but for the holder taxes, duties, assessments or the beneficial owner governmental charges in respect of such note by reason of the Notes existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, a trust, nominee, a partnership, limited liability company or a corporation) and Brazil, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or national of, being or incorporated, having been engaged in a trade or business inor present therein or having, being or having been physically present in or having had, a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdictiontherein, other than any connection arising solely from the acquisition, ownership or disposition mere holding of Notes, the exercise Note or enforcement of rights under such Note, the Indenture or a Note Guarantee, or and the receipt of payments with respect to the Note;
(ii) in respect of such Note or a Note Guarantee;
Notes surrendered (2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation if surrender is required) more than 30 days after the relevant payment is first made available for payment to the holder (Relevant Date except to the extent that payments under such Note would have been subject to withholdings and the holder Holder of such Note would have been entitled to such Additional Amounts had the Amounts, on surrender of such Note been presented for payment on the last day of such period of 30 day period)days;
(3iii) where such Additional Amount is imposed on a payment to an individual and is required to be made pursuant to any law implementing or complying with, or introduced in order to conform to, any European Union Directive on the taxation of savings;
(iv) with respect to any taxes withheld, 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 directive implementing the conclusions of the ECOFIN Council meeting of 26 and 27 November 2000 on the taxation of savings income or any law implementing or complying with or introduced in order to conform to, such Directive;
(v) to, or to a third party on behalf of, a Holder who is liable for such taxes, duties, assessments or other governmental charges by reason of such Holder’s failure to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with the Cayman Islands or Brazil, or a successor jurisdiction or applicable political subdivision or authority thereof or therein having power to tax, of such Holder, if (1) compliance is required by such jurisdiction, or any political subdivision or authority thereof or therein having power to tax, as a precondition to, exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and (2) the Company has given the Holders at least 30 days’ notice that Holders shall be required to provide such certification, identification or other requirement;
(vi) in respect of any estate, inheritance, gift, salesales, transfer, capital gains, excise or personal property or similar Taxestax, assessment or governmental charge;
(4vii) in respect of any Taxes tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments under, of principal of or with interest on the Note or by direct payment by the Company or the Guarantors in respect to, of claims made against the Notes Company or any Note Guarantee;the Guarantors; or
(5viii) in respect of any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure combination of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would above. No Additional Amounts shall be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or paid with respect to any payment by the Issuer or any of the Guarantors on a Note to the holder of the Notes if such holder a Holder who is a fiduciary fiduciary, a partnership, a limited liability company or partnership or any person other than the sole beneficial owner of such that payment to the extent that such Taxes payment would be required by the laws of Brazil or any political subdivision thereof to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership, an interestholder in a limited liability company or a beneficial owner who would not have been imposed on such payments entitled to the Additional Amounts had such holder that beneficiary, settlor, member or beneficial owner been the sole beneficial owner of such Note;
(8) Holder. The Notes are subject in all cases to any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986tax, as amended (the “Code”) fiscal or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related other law or regulation or administrative practices or procedures) implementing judicial interpretation. Except as specifically provided above, neither the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and Company nor the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions shall be required to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in make a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts payment with respect to any payment under tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein. In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or any Note Guaranteewithholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, the Issuer or the relevant Guarantorand, as a result thereof such Holder is entitled to make claim for a refund or credit of such excess from the case may beauthority imposing such withholding tax, will deliver then such Holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payableCompany. 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever Any reference in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of to principal, interest or of any other amount payable under, or with in respect to, any of the Notes by the Company or any the Note Guarantee, such mention Guaranty by the Guarantors shall be deemed also to include mention of refer to any Additional Amount, unless the payment of Additional Amounts to the extent thatcontext requires otherwise, in such context, Additional Amounts are, were or would that may be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to that amount under the Notes (or any Note Guarantee) by or on behalf of such Person and, obligations referred to in each case, any political subdivision thereof or thereinthis Paragraph 5.
Appears in 1 contract
Sources: Indenture (Cosan Ltd.)
Additional Amounts. (a1) All payments made by or on behalf of principal, premium, interest and Liquidated Damages (if any) in respect of each Security and the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee Guarantees shall be made free and clear of of, and without withholding or deduction for, any taxes, duties, assessments or on account ofgovernmental charges of whatever nature imposed, any present levied, collected, withheld or future Taxes unless assessed by or within Hong Kong, the withholding People's Republic of China, the Cayman Islands or deduction the United States (and, in the case of such Taxes is then required by law. If a Guarantor, the Issuer, any country of residence or incorporation of the Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer Guarantor has an office or any Guarantor is or was incorporated, engaged in doing business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision or taxing authority thereof or therein (each therein, unless such withholding or deduction is required by law or by regulation or governmental authority having the force of (1) and (2), a “Tax Jurisdiction”) law. In the event that any such withholding or deduction in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase pricepremium, interest or premiumLiquidated Damages is so required, the Issuer Company or the relevant GuarantorGuarantors, as applicablethe case may be, shall pay such additional amounts (the “"Additional Amounts”") as may be necessary will result in order that the net amounts received and retained in respect receipt by each Holder of any Security of such payments amounts as would have been received by each beneficial owner of Notes after such Holder with respect to such Security or Guarantee, as applicable, had no such withholding or deduction shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; providedrequired, however, except that no Additional Amounts shall be payable with respect topayable:
(1a) for or on account of:
(i) any Taxestax, to the extent such Taxes duty, assessment or other governmental charge that would not have been imposed but for for
(A) the holder existence of any present connection between such Holder or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power oversuch Security and Hong Kong, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment inPeople's Republic of China, the relevant Tax Jurisdiction Cayman Islands or having or having had any other present or former connection with the relevant Tax JurisdictionUnited States (as the case may be, other than any connection arising solely from merely holding such Security or Guarantee or the acquisitionreceipt of, ownership or disposition of Notes, the exercise or enforcement of rights under such Noteunder, the Indenture Guarantees or a Note Guaranteethe Securities, or the receipt of payments in respect thereof) including, without limitation, such Holder or the beneficial owner of such Note Security being a national, domiciliary or resident thereof or being present or engaged in a Note Guarantee;trade or business therein or having a permanent establishment therein; or
(2B) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment such Security (where presentation is required) more than 30 thirty (30) days after the relevant date on which the payment in respect of such Security became due and payable or provided for, whichever is first made available for payment to the holder (later, except to the extent that the holder such Holder would have been entitled to such Additional Amounts if it had the Note been presented such Security for payment on the last any day within such period of such 30 day period);thirty (30) days; or
(3ii) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;tax, assessment or other governmental charge; or
(4iii) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;combination of items (i) and (ii); or
(5iv) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate case of deduction or any withholding of, Taxes taxes imposed by the Tax Jurisdiction (includingUnited States, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible Holder's failure to provide such appropriate tax certification or documentation;as prescribed by applicable United States income tax laws; or
(6b) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by of the Issuer principal of or any of the Guarantors premium, interest, or Liquidated Damages, on such Security or Guarantee to the holder of the Notes if such holder is Holder (including a fiduciary or partnership or any person other than partnership) to the sole extent that the beneficial owner of such payment to the extent that such Taxes Security would not have been imposed on entitled to such payments Additional Amounts had such holder it been the sole beneficial owner Holder of such Note;the Security.
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”2) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer The Company and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable provide to the Trustee and Paying Agent a certified receipt issued by the relevant government authority evidencing payment of any payments, withholding taxes within 30 days after payment thereof. Copies of such receipts shall be provided to any Holders requesting such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through copies.
(3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, mentioned in any context, the payment of amounts based upon the principal amount of the Notes or of principal, premium, interest or Liquidated Damages, in respect of any other amount payable under, Security or with respect to, the net proceeds received on the sale or exchange of any of the Notes or any Note GuaranteeSecurity, such mention shall be deemed to include mention of the payment of Additional Amounts provided for this Section 4.19 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to this Indenture.
(e4) The preceding obligations Company or the Guarantors, as the case may be, will survive pay any terminationpresent or future stamp, defeasance court 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposesdocumentary taxes, or any other excise or property taxes, charges or similar levies which arise in any jurisdiction from the execution, delivery, enforcement or through which payment is made under registration of the Securities or the Guarantees, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside of Hong Kong, the People's Republic of China, the Cayman Islands or the United States, except those resulting from, or required to be paid in connection with, the enforcement of the Securities or the Guarantees following the occurrence of any Event of Default with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or thereinSecurities.
Appears in 1 contract
Sources: Indenture (Asat Holdings LTD)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes Notes, or by Exide Parent in respect of any Note Partial Parent Guarantee shall be made free and clear of and without withholding or deduction for, for or on account of, of any present or future Taxes unless the withholding or deduction of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any Taxing Authority within France, or within any other jurisdiction (other than the United States) in which the Issuer is organized or any Guarantor is or was incorporated, engaged in business, organized or resident business for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of purposes, unless the Issuer or Exide Parent, 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 or Exide Parent, as the case may be, is required to withhold or deduct any Guarantor (includingamount for or on account of Taxes imposed by a Taxing Authority within France, without limitationor within any other jurisdiction in which the Issuer is organized or engaged in business for tax purposes, the jurisdiction of from any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments payment made under or with respect to the Notes or any Note Partial Parent Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premiumas the case may be, the Issuer or the relevant Guarantor, as applicable, shall Exide Parent will pay such additional amounts (the “"Additional Amounts”") as may be necessary in order so that the net amounts amount received and retained in respect of such payments by each beneficial owner holder of Notes (including Additional Amounts) after such withholding or deduction shall equal will not be less than the respective amounts that amount the holder and beneficial owner would have received if such Taxes had not been received and retained in respect of such payments in the absence of such withholding withheld or deductiondeducted; provided, however, provided that no Additional Amounts shall will be payable with respect to a payment made to a holder of Notes (an "Excluded Holder") with respect to:
(1) any Taxes, to the extent such Taxes Tax which would not have been imposed imposed, payable or due: (i) but for the existence of any present or former connection between the holder (or the beneficial owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power overperson ultimately entitled to obtain an interest in, such Notes) and France or other jurisdiction in which the relevant holder, if the relevant holder Issuer is an estate, trust, nominee, partnership, limited liability company organized or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, for tax purposes other than any connection arising solely from the acquisition, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guaranteeholding of, or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following ; (ii) if the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided made by presenting or through another paying agent without such withholding; or (iii) if the relevant Note tobeneficial owner of, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect person ultimately entitled to any payment by the Issuer or any of the Guarantors to obtain an interest in such Notes had been the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes and would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant be entitled to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such ; or (2) any Tax which is payable otherwise than by withholding from payments are necessaryof, or in respect of principal of, or any interest on, the Notes.
(c) The Issuer shall (i) make such withholding or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings deduction and deductions (within the time periodii) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer or the relevant Guarantor Exide Parent will use its make reasonable efforts to obtain Tax certified copies of tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheldwithheld from each Taxing Authority imposing such Taxes. The Issuer or Exide Parent, as the relevant Guarantor case may be, will furnish to the Trustee (or to a Holder registered Holders, and unregistered holders upon request), within 60 days after the date the payment of any Taxes so deducted or withheld is madedue pursuant to applicable law, either certified copies of Tax tax receipts evidencing such payment by the Issuer or a GuarantorExide Parent, as the case may be, or ifor, notwithstanding if such entity’s efforts to obtain receipts, receipts are not obtainedobtainable, other evidence of such payments (reasonably satisfactory to by the Trustee) by such entityIssuer or Exide Parent, as the case may be.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed At least 30 days prior to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 each date on which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by Partial Parent Guarantee is due and payable, if the Issuer or Exide Parent, as the case may be, will be obligated to pay Additional Amounts with respect to such payment, the Issuer will deliver to the Paying Agents 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 Paying Agents to pay such Additional Amounts to the holders of Notes on behalf of such Person and, in each case, any political subdivision thereof or thereinthe payment date.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of the Issuer Issuers or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor deduction or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer Issuers or any Guarantor (including any successor entity), is or was then incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer Issuers or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of ), will at any time be required to be made from any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, premium the Issuer Issuers or the relevant Guarantor, as applicable, shall will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner holder or Beneficial Owner of Notes after such withholding withholding, deduction or deduction shall imposition will equal the respective amounts of cash that would have been received and retained in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall will be payable with respect to:
(1a) any Taxes, to the extent such Taxes would not have been imposed but for the holder Holder or the beneficial owner Beneficial Owner of the Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged incorporated in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction in which such Taxes are imposed or having or having had any other present or former connection with the relevant Tax Jurisdiction, Jurisdiction other than any connection arising solely from the acquisition, ownership acquisition or disposition holding of such Notes, the exercise or enforcement of rights under such Note, the Note or this Indenture or under a Note Guarantee, Guarantee of a Guarantor or the receipt of payments in respect of such Note or a Note GuaranteeGuarantee of a Guarantor;
(2b) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3c) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4d) any Note presented for payment (where presentation is required) by or on behalf of a Holder of Notes who would have been able to avoid such withholding or deduction by presenting the relevant Note to another Paying Agent in a member state of the European Union;
(e) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or with respect to any Note GuaranteeGuarantee of a Guarantor;
(5f) any Taxes to the extent such Taxes would not have been are imposed or withheld but for by reason of the failure of the holder Holder or beneficial owner Beneficial Owner of the Notes, following the Issuer’s Issuers’ reasonable written request addressed to the holder Holder or Beneficial Owner at least 60 days before any such withholding or deduction would be imposedpayable to the holder or Beneficial Owner, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner Beneficial Owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner Beneficial Owner is legally eligible entitled to provide such certification or documentation;
(6g) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) withheld by or on behalf reason of a the failure of the holder or beneficial owner Beneficial Owner of the Notes to comply with the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any requirements of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) ), as of the Issue Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations promulgated thereunder, the U.S. Treasury Regulations issued thereunder or any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (interpretation thereof or any related law or administrative practices or procedures) implementing the foregoing or any agreements agreement entered into pursuant to current Section 1471(b)(11471(b) of the Code Code;
(h) any withholding Tax imposed by the United States or any amended or successor version described above)a political subdivision thereof; or
(9i) any combination of clauses (1a) through (8) h) above. In addition to the foregoing, the Issuer Issuers and the any Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax any other liabilities related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the this Indenture, any Note Guarantee of a Guarantor 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) Guarantor. If the Issuer Issuers or any Guarantor, as the case may be, becomes aware that it or they will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Note GuaranteeGuarantee of a Guarantor, the Issuer Issuers or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer Issuers or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Officers’ Certificates 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 Issuer Issuers or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Officers’ Certificate as conclusive proof that such payments are necessary.
(c) , and may conclusively presume that no payments are necessary unless and until it receives any such Officers’ Certificate. The Issuer Issuers or the relevant Guarantor, if it is the applicable withholding agent, Guarantor will make all withholdings and deductions (within the time periodperiod and in the minimum amount) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer Issuers or the relevant Guarantor will use its their reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer Issuers or the relevant Guarantor will furnish to the Trustee (or to a Holder holder upon request), 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 Issuer Issuers 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 (reasonably satisfactory to the Trustee) by such entity.
(d) . Whenever in the this Indenture or this Note the Notes there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note GuaranteeGuarantee of a Guarantor, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) . The preceding above obligations will survive any termination, defeasance or discharge of the this Indenture, any transfer by a holder or beneficial owner Beneficial Owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (Issuers or any Guarantor) Guarantor is incorporated, engaged in business, organized business for tax purposes or resident for tax purposes, purposes or any jurisdiction from or through which such Person makes any payment is made under or with respect to on the Notes (or any Note GuaranteeGuarantee of a Guarantor) by and any department or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture (Endo International PLC)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Class A Notes or any Note Guarantee thereof shall 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 of such Taxes is then required by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Class A Notes or any Note GuaranteeGuarantee thereof, including, without limitation, payments of principal, redemption priceRedemption Price, purchase price, interest interest, duration fees or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes Holder after such withholding or deduction shall will equal the respective amounts that would have been received and retained by each Holder in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts shall be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the holder or the beneficial owner of the Class A Notes (or a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holderHolder or beneficial owner, if the relevant holder Holder or beneficial owner is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, other than any connection arising solely from the acquisition, ownership or disposition of Class A Notes, the exercise or enforcement of rights under such Class A Note, any Note Guarantee thereof or the Indenture or a Note GuaranteeIndenture, or the receipt of payments in respect of such Class A Note or a any Note GuaranteeGuarantee thereof;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Class A Note for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the holder Holder (except to the extent that the holder Holder would have been entitled to Additional Amounts had the Class A Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Class A Notes or any Note GuaranteeGuarantee thereof;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder Holder or beneficial owner of the Class A Notes, following the Issuer’s reasonable written request addressed to the holder Holder at least 60 30 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder Holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes imposed in connection with a Class A Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a holder Holder or beneficial owner of the Class A Notes to the extent such Taxes could have been avoided by presenting the relevant Class A Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder Holder of the Class A Notes if such holder Holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder Holder been the sole beneficial owner of such Class A Note;
(8) any Taxes imposed by the United States, any state thereof or the District of Columbia, or any subdivision thereof or territory thereof, including any U.S. federal withholding taxes and any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) ), or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the NotesIndenture, the IndentureClass A Notes, any Note Guarantee thereof or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Class A Notes or any Note Guarantee thereof (limited, solely in the case of Taxes attributable to the receipt of any paymentspayments or that are imposed on or result from a sale or other transfer or disposition of a Class A Note by a Holder or a beneficial owner, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof), save in each case for any such taxes, charges or levies which arise or are increased as a result of any document effecting the registration, issue or delivery of any of the Class A Notes either being signed or executed in the United Kingdom or being brought into the United Kingdom.
(b) If the 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 Class A Notes or any Note GuaranteeGuarantee thereof, the Issuer or the relevant Guarantor, as the case may be, will 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate Certificates 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder of this Class A Note upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Class A Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Class A Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Class A Notes or any Note GuaranteeGuarantee thereof, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will survive any termination, defeasance or discharge of the Indenture, any transfer by a holder Holder or beneficial owner of its Class A Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Class A Notes (or any Note GuaranteeGuarantee thereof) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 1 contract
Additional Amounts. (a) All payments made by the Company or on behalf the Guarantor in respect of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee the Guarantee, as the case may be, including, without limitation, Additional Interest, if any, shall be made free and clear of of, and without withholding or deduction for, for or on account of, any present or future Taxes unless the withholding taxes, duties, assessments or deduction other governmental charges of such Taxes is then required by law. If the Issuersimilar nature (and any fines, any Guarantor penalties or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes interest related thereto) imposed or levied by or on behalf of (1) any jurisdiction (other than Brazil or the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes Cayman Islands or any political subdivision thereof or therein authority of or in Brazil or the Cayman Islands having power to tax, unless such withholding or deduction is required by law. In that event, the Company or the Guarantor (2) any jurisdiction from or through which any payment is made by or on behalf as guarantor of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying AgentNotes) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay to each Holder such additional amounts (the “Additional Amounts”) as may be necessary in order that every net payment made by the net amounts received and retained in respect Company or the Guarantor (as guarantor of such payments by the Notes) on each beneficial owner of Notes Note or the Guarantee after such deduction or withholding shall not be less than the amount otherwise then due and payable on such Note as if no deduction or deduction shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deduction; providedwere required.
(a) The foregoing obligation to pay Additional Amounts, however, that no Additional Amounts shall be payable with respect not apply to:: * Initial Notes only.
(1i) any Taxestax, to the extent such Taxes assessment or other governmental charge which would not have been imposed but for the holder existence of any present or the beneficial owner of the Notes former connection between such Holder (or between a fiduciary, settlorsettler, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, a trust, nominee, a partnership, limited liability a company or a corporation), on the one hand, and Brazil or the Cayman Islands, on the other hand (including, without limitation, such Holder (or such fiduciary, settler, beneficiary, member or shareholder) being or having been a citizen or resident thereof or national of, or incorporated, having been engaged in a trade or business inor present therein or having, being or having been physically present in or having had, a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdiction, therein) other than any connection arising solely from the acquisition, mere receipt of such payment or the ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture or a Note Guarantee, or the receipt of payments in respect holding of such Note or a Note the Guarantee;
(2ii) any Taxestax, to the extent such Taxes were assessment or other governmental charge which would not have been so imposed as a result of but for the presentation of a Note by such Holder for payment (where presentation is required) on a date more than 30 days after the relevant date on which such payment became due and payable or the date on which payment thereof is first made available for payment to the holder duly provided for, whichever occurs later;
(except to iii) the extent that the holder taxes, duties, assessments or other governmental charges would not have been entitled to Additional Amounts had imposed but for the Note been presented on the last day failure of such Holder (including the failure of any beneficial owner) to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with Brazil or the Cayman Islands of the Holder if (A) such compliance is required or imposed by law as a precondition to exemption from all or a part of such tax, assessment or other governmental charge and (B) in the event a certification, identification or other reporting requirement is adopted after the Issue Date and the Company or the Guarantor relies on such requirement apply this clause (iii), the Company shall have notified all Holders of Notes of such requirement at least 30 day period)days prior to the date such requirement will apply with respect to the Notes and be so relied upon by Company or the Guarantor, as the case may be, provided that no further notices of such requirement will be required to be given to any subsequent Holders;
(3iv) any estate, inheritance, gift, salesales, transfer, excise or personal property or similar Taxestax, assessment or governmental charge;
(4v) any Taxes tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments under, of principal of or with interest [(including Additional Interest)]* on the Note or by direct payment by the Company or the Guarantor in respect to, of claims made against the Notes Company or any Note Guaranteethe Guarantor;
(5vi) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notestax, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information withheld or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of otherwise deducted on a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes imposed in connection with a Note note presented for payment (where presentation is permitted or required for paymentrequired) by or on behalf of a holder or beneficial owner of the Notes to the extent such Taxes could Holder who would have been avoided able to avoid that withholding or deduction by presenting the relevant Note note to another paying agent; * Initial Notes only.
(vii) any withholding or deduction, imposed or levied on a payment to an individual that is required to be made pursuant to any European Union Directive 2003/48/EC or any other Directive 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 Directive; or
(viii) any combination of the above. The Company or otherwise accepting payment the Guarantor, 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 which arise in any jurisdiction from the execution, delivery, registration or the making of payments or enforcement in respect of the Notes and the Guarantee, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside of Brazil or the Cayman Islands other than those resulting from, another Paying Agent;
(7) or required to be paid in connection with, the enforcement of the Notes following the occurrence of any Taxes imposed on Default or Event of Default. No Additional Amounts shall be paid with respect to any a payment by on a Note or the Issuer or any of the Guarantors Guarantee to the holder of the Notes if such holder a Holder that is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such Taxes fiduciary or a member of such partnership or beneficial owner would not have been imposed on such payments entitled to receive payment of the Additional Amounts had such holder the beneficiary, settlor, member or beneficial owner been the sole beneficial owner Holder of the Note. The Company or the Guarantor shall provide the Trustee with the official acknowledgement of the relevant taxing authority (or, if such acknowledgement is not available, a certified copy thereof, or other available documentation) evidencing any payment of Brazilian or Cayman Islands taxes in respect of which the Company or the Guarantor has paid any Additional Amounts. Copies of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition documentation shall be made available to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note Guarantee or any other document referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any Holders of the Notes or any Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the Issuer or any GuarantorPaying Agents, as the case may beapplicable, 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, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessaryupon request therefor.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The preceding obligations will 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf the Company in respect of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall the Guarantors in respect of the 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 unless the withholding or deduction of such Taxes is then required by law. If the Issuertaxes, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount forduties, assessments, or on account of, any Taxes other governmental charges of whatever nature imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer Brazil, or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or authority therein or (2) any jurisdiction from or through which any payment is made by or on behalf thereof in the case of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any other jurisdiction in which any Guarantor is organized having power to tax in the case of payments under the Note GuaranteeGuaranty, includingunless the Company or the Guarantors are compelled by law to deduct or withhold such taxes, without limitationduties, payments of principalassessments, redemption price, purchase price, interest or premiumgovernmental charges. In such event, the Issuer Company or the relevant GuarantorGuarantors will make such deduction or withholding, as applicable, shall make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts (the “Additional Amounts”) as may be necessary in order to ensure that the net amounts received and retained in respect of such payments receivable by each beneficial owner Holders of Notes after such withholding or deduction shall equal the respective amounts that of principal and interest which would have been received and retained receivable in respect of such payments the Notes in the absence of such withholding or deduction; provided, however, that no deduction (“Additional Amounts”). No such Additional Amounts shall be payable with respect topayable:
(1i) any Taxesto, or to the extent a third party on behalf of, a Holder who is liable for such Taxes would not have been imposed but for the holder taxes, duties, assessments or the beneficial owner governmental charges in respect of such note by reason of the Notes existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holdersuch Holder, if the relevant holder such Holder is an estate, a trust, nominee, a partnership, limited liability company or a corporation) and Brazil, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or national of, being or incorporated, having been engaged in a trade or business inor present therein or having, being or having been physically present in or having had, a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Jurisdictiontherein, other than any connection arising solely from the acquisition, ownership or disposition mere holding of Notes, the exercise Note or enforcement of rights under such Note, the Indenture or a Note Guarantee, or and the receipt of payments with respect to the Note;
(ii) in respect of such Note or a Note Guarantee;
Notes surrendered (2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation if surrender is required) more than 30 days after the relevant payment is first made available for payment to the holder (Relevant Date except to the extent that payments under such Note would have been subject to withholdings and the holder Holder of such Note would have been entitled to such Additional Amounts had the Amounts, on surrender of such Note been presented for payment on the last day of such period of 30 day period)days;
(3iii) where such Additional Amount is imposed on a payment to an individual and is required to be made pursuant to any law implementing or complying with, or introduced in order to conform to, any European Union Directive on the taxation of savings;
(iv) to, or to a third party on behalf of, a Holder who is liable for such taxes, duties, assessments or other governmental charges by reason of such Holder’s failure to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with Brazil, or a successor jurisdiction or applicable political subdivision or authority thereof or therein having power to tax, of such Holder, if (1) compliance is required by such jurisdiction, or any political subdivision or authority thereof or therein having power to tax, as a precondition to, exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and (2) the Company has given the Holders at least 30 days’ notice that Holders will be required to provide such certification, identification or other requirement;
(v) in respect of any estate, inheritance, gift, salesales, transfer, capital gains, excise or personal property or similar Taxestax, assessment or governmental charge;
(4vi) in respect of any Taxes tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments under, of principal of or with interest on the Note or by direct payment by the Company or the Guarantors in respect to, of claims made against the Notes Company or any Note Guarantee;the Guarantors; or
(5vii) in respect of any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure combination of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would above. No Additional Amounts shall be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or paid with respect to any payment by the Issuer or any of the Guarantors on a Note to the holder of the Notes if such holder a Holder who is a fiduciary fiduciary, a partnership, a limited liability company or partnership or any person other than the sole beneficial owner of such that payment to the extent that such Taxes payment would be required by the laws of Brazil or any political subdivision thereof to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership, an interestholder in a limited liability company or a beneficial owner who would not have been imposed on such payments entitled to the Additional Amounts had such holder that beneficiary, settlor, member or beneficial owner been the sole beneficial owner of such Note;
(8) Holder. The Notes are subject in all cases to any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986tax, as amended (the “Code”) fiscal or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related other law or regulation or administrative practices or procedures) implementing judicial interpretation. Except as specifically provided above, neither the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and Company nor the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions shall be required to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in make a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts payment with respect to any payment under tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein. In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or any Note Guaranteewithholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, the Issuer or the relevant Guarantorand, as a result thereof such Holder is entitled to make claim for a refund or credit of such excess from the case may beauthority imposing such withholding tax, will deliver then such Holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payableCompany. 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 Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 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 (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever Any reference in the Indenture or this Note there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of to principal, interest or of any other amount payable under, or with in respect to, any of the Notes by the Company or any the Note Guarantee, such mention shall Guaranty by the Guarantors will be deemed also to include mention of refer to any Additional Amount, unless the payment of Additional Amounts to the extent thatcontext requires otherwise, in such context, Additional Amounts are, were or would that may be payable with respect to that amount under the obligations referred to in respect thereof.
(e) this Paragraph 5. The preceding obligations foregoing obligation will survive any termination, defeasance termination 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 any successor Person to the Issuer (or any Guarantor) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture (Cosan Ltd.)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note Guarantee shall 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 of owner would have received if such Taxes is then required by law. If the Issuer, any Guarantor had not been withheld or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2), a “Tax Jurisdiction”) in respect of any payments under or with respect to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received and retained in respect of such payments by each beneficial owner of Notes after such withholding or deduction shall equal the respective amounts that would have been received and retained in respect of such payments in the absence of such withholding or deductiondeducted; provided, however, that no Additional Amounts shall will be payable with respect to:
(1) to payments made to any Taxes, beneficial owner to the extent such Taxes would not are imposed by reason of (i) such beneficial owner being considered to be or to have been imposed but for the holder or the beneficial owner of the Notes (or connected with a fiduciary, settlor, beneficiary, partner of, member or shareholder of, or possessor of a power over, the relevant holder, if the relevant holder is an estate, trust, nominee, partnership, limited liability company or corporation) being or having been a citizen or resident or national of, or incorporated, engaged in a trade or business in, being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction or having or having had any other present or former connection with the relevant Tax Relevant Taxing Jurisdiction, other otherwise than any connection arising solely from by the acquisition, ownership ownership, holding or disposition of the Notes, the exercise or enforcement of rights under such Note, the Indenture Notes or a under any Note Guarantee, Guarantee or the receipt of payments in respect of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) 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 Additional Amounts had the Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(4) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes or any Note Guarantee;
(5) any Taxes to the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the Notes, following the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding or deduction would be imposed, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally eligible to provide such certification or documentation;
(6) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above); or
(9) any combination of clauses (1) through (8) above. In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the 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 Note Guarantee, or (ii) such beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer Issuer, a Guarantor or the relevant Guarantorother applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, as the case may bewithout limitation, will deliver to the Trustee on a date that is at least 30 days providing prior to the date receipt of any payment on or in respect of a Note or any Note Guarantee, a complete, correct and executed IRS Form W-8 or W-9 or successor form, as applicable, with all appropriate attachments); provided, however, that payment (unless the for purposes of this obligation to pay Additional Amounts, the Issuer, a Guarantor or other applicable withholding agent shall be entitled, for U.S. federal income and withholding tax purposes, to treat any payments on or in respect of the Notes as if the Notes were issued by a U.S. person as defined in section 7701(a)(30) of the Code. Further, no Additional Amounts arises after shall be payable with respect to (i) any Tax imposed on interest by the 30th day prior to that payment dateUnited States or any political subdivision or governmental authority thereof or there in by reason of any beneficial owner holding or owning, in which case actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote or (ii) any Tax imposed on interest by the relevant Guarantor shall notify United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a controlled foreign corporation that is a related person within the Trustee promptly thereaftermeaning of Section 864(d)(4) an Officer’s Certificate stating of the fact that Additional Amounts will be payable and Code with respect to the amount estimated to be so payable. The Officer’s Certificate must also set forth Issuer or any other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to Holders on the relevant payment dateGuarantor. The Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory (as applicable) required to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, withhold any Taxes will make all withholdings such withholding or deduction and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority as and when required in accordance with applicable law. The Issuer or the relevant Guarantor (as applicable) will use its all reasonable efforts to obtain Tax certified copies of tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The by the Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), within 60 days after the date the payment as applicable) of any Taxes so deducted or withheld is made, from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies of Tax receipts evidencing payment by the Issuer or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity.
(d) Whenever . Wherever in the Indenture or this the Notes or any Note Guarantee there is are mentioned, in any context, (1) the payment of amounts based upon the principal amount of the Notes or of principal, (2) purchase prices in connection with a purchase of Notes under the Indenture or the Notes, (3) interest or of (4) any other amount payable under, on or with respect to, to any of the Notes or any Note Guarantee, such mention reference shall be deemed to include mention of the payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
. paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the Holders upon request. The Issuer will pay any present stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (eincluding any penalties, interest or other liabilities related thereto) which arise in the United States or any political subdivision or governmental authority thereof or therein having the power to tax, from the execution, delivery and registration of Notes upon original issuance and initial resale of the Notes or any other document or instrument referred to therein or in connection with any payment with respect to, or enforcement of, the Notes or any Note Guarantee or any other document or instrument referred to herein or therein. If at any time the Issuer changes its place of organization to outside of the United States or there is a new issuer organized outside of the United States, the Issuer or new issuer, as applicable, will pay any stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in the jurisdiction in which the Issuer or new issuer is organized (or any political subdivision thereof or therein) and are payable by the Holders of the Notes in respect of the Notes or any Note Guarantee or any other document or instrument referred to therein under any law, rule or regulation in effect at the time of such change or thereafter. The preceding foregoing obligations in this Paragraph 2 will 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 . References in which any successor Person this Paragraph 2 to the Issuer (or any GuarantorGuarantor shall apply to any successor(s) is incorporated, engaged in business, organized or resident for tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or thereinthereto.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of the Issuer of principal and interest in respect of the Notes or payments made by any of the Guarantors (including, in each case, any successor entity) under or with respect to the Notes or any Note note Guarantee shall will be made free and clear of of, and without deduction or withholding or deduction for, for or on account of, any present or future Taxes unless the withholding taxes, duties, assessments or deduction other governmental charges of such Taxes is then required whatsoever nature imposed, levied, collected, withheld or assessed by law. If the Issuer, any Guarantor or any other applicable withholding agent is required by law to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction (other than the United States) in which the Issuer or any Guarantor is or was incorporated, engaged in business, organized or resident for tax purposes States or any political subdivision thereof or therein taxing authority of or in the United States (2) any jurisdiction from or through which any payment is made by or on behalf of the Issuer or any Guarantor (includingcollectively, without limitation, the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each of (1) and (2“Taxes”), a “Tax Jurisdiction”unless such deduction or withholding is required by law.
(b) in respect In the event such deduction or withholding of any payments under or with respect Taxes is required by law, subject to the Notes or any Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premiumlimitations described below, the Issuer (or the relevant Guarantor, as applicable, shall the case may be) will pay to the Holder of any Note that is not beneficially owned by a U.S. Holder such additional amounts (the “Additional Amounts”) as may be necessary in order that every net payment received by the net amounts received and retained in respect of such payments by each beneficial owner of such Note of principal of or interest or any other amount payable on the Notes (including upon redemption), after such deduction or withholding for or deduction shall equal the respective amounts that would have been received and retained in respect on account of such payments Taxes, will not be less than the amount provided for in the absence such Note to be then due and payable before deduction or withholding for or on account of such withholding Taxes. However, the Issuer’s obligation, or deduction; providedthe Guarantor’s obligation, howeveras the case may be, that no to pay Additional Amounts shall be payable with respect not apply to:
(1i) any Taxes, to the extent such Taxes that would not have been so imposed but for for:
(A) the holder existence of any present or the former connection between such Holder or beneficial owner of the Notes (or between a fiduciary, settlor, beneficiary, member, partner of, member or shareholder or other equity owner of, or possessor of a person having a power over, the relevant holdersuch Holder or beneficial owner, if the relevant holder such Holder or beneficial owner is an estate, a nominee, a trust, nomineea limited liability company, a partnership, limited liability company a corporation or corporationother entity) and the United States, including such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, partner or shareholder or other equity owner or person having such a power) being or having been a citizen or resident or national of, treated as a resident of the United States or incorporated, being or having been engaged in a trade or business in, in the United States or being or having been physically present in or having a permanent establishment in, the relevant Tax Jurisdiction United States or having or having had a permanent establishment in the United States;
(B) the failure of such Holder or beneficial owner to comply with a request to provide any certification, information or other reporting requirement, if compliance is required under United States tax laws and regulations to establish entitlement to a partial or complete exemption from such Taxes (including, but not limited to, the requirement to provide an applicable Internal Revenue Service Form W-8 (with any required attachment), or any subsequent version thereof or successor thereto); or
(C) such Holder’s or beneficial owner’s present or former connection with the relevant Tax Jurisdictionstatus as a personal holding company, other than any connection arising solely from the acquisitiona controlled foreign corporation, ownership or disposition of Notes, the exercise or enforcement of rights under such Note, the Indenture a passive foreign investment company or a Note Guaranteeforeign tax-exempt organization, in each case, for U.S. federal income tax purposes, or as a corporation that accumulates earnings to avoid U.S. federal income tax;
(ii) any Taxes imposed by reason of the receipt Holder or beneficial owner:
(A) owning or having owned, directly or indirectly, actually or constructively, 10% or more of payments the total combined voting power of all classes of the Issuer’s stock, as described in respect section 871(h)(3) of the Internal Revenue Code,
(B) being a bank receiving interest as described in section 881(c)(3)(A) of the Internal Revenue Code, or
(C) being a controlled foreign corporation that is related to the Issuer or any Guarantor by stock ownership for U.S. federal income tax purposes;
(iii) any Taxes that would not have been so imposed but for the presentation by the Holder or beneficial owner of such Note or a Note Guarantee;
(2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment (where presentation is required) on a date more than 30 days after the relevant date on which such payment became due and payable or the date on which payment of the Note is first made available duly provided for payment and notice is given to the holder (such Holders, whichever occurs later, except to the extent that the holder such Holder or beneficial owner would have been entitled to such Additional Amounts had the on presenting such Note been presented on the last day of any date during such 30 30-day period);
(3iv) any estate, inheritance, gift, salesales, excise, transfer, personal property property, capital gains, wealth or similar Taxes;
(4v) any Taxes payable other otherwise than by deduction or withholding from payments under, a payment on such Note or with respect to, the Notes or to any Note note Guarantee;
(5vi) any Taxes to payable by a Holder that is not the extent such Taxes would not have been imposed or withheld but for the failure of the holder or beneficial owner of the NotesNote, following or a portion of the Issuer’s reasonable written request addressed to the holder at least 60 days before any such withholding Note, or deduction would be imposedthat is a fiduciary, to comply with any certificationpartnership, identification, information limited liability company or other reporting requirementssimilar entity, whether required by statutebut, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent that a beneficial owner, a beneficiary or settlor with respect to such fiduciary or member or partner of such partnership, limited liability company or similar entity would not have been entitled to the holder payment of an additional amount had such beneficial owner, beneficiary, settlor, member or partner received directly its beneficial owner is legally eligible to provide such certification or documentationdistributive share of the payment;
(6vii) any Taxes required to be withheld by any paying agent from any payment on any Note, if such payment can be made without such withholding by at least one other paying agent;
(viii) any Taxes 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 of the Notes to the extent such Taxes could have been avoided by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(7) any Taxes imposed on or with respect to any payment by the Issuer or any of the Guarantors to the holder of the Notes if such holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that such Taxes would not have been imposed on such payments had such holder been the sole beneficial owner of such Note;
(8) any Taxes that are imposed pursuant to current Section under Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any regulations promulgated thereunder, any official interpretations thereof, any intergovernmental agreement between a non-U.S. jurisdiction and the United States (or any related law or administrative practices or procedures) implementing the foregoing or any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described aboveprovision that is substantively comparable), any current or future regulations or official interpretation thereof, any agreement entered into pursuant to Section 1471(b) of the Internal Revenue Code or any fiscal or regulatory legislation, rule or practice adopted pursuant to any intergovernmental agreement, treaty or convention entered into in connection with the implementation of the foregoing; or
(9ix) any combination of clauses items (1i), (ii), (iii), (iv), (v), (vi), (vii) through and (8) above. In addition to the foregoingviii).
(c) For purposes of this Section 2.14, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stampacquisition, issueownership, registration, value added, transfer, court or documentary Taxesenforcement, or any other excise or property taxes, charges or similar levies (including penalties, interest and additions to tax related thereto) which are levied by any jurisdiction on the execution, delivery, issuance, or registration holding of any of the Notes, the Indenture, any Note 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 Note Guarantee (limited, solely in the case of Taxes attributable to the receipt of any payments, to any such Taxes imposed in a Tax Jurisdiction that are not excluded under clauses (1) through (3) or (5) through (9) above or any combination thereof).
(b) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts payment with respect to any payment under a Note will not constitute a connection (x) between the Holder or with respect to the Notes or any Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, 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 after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable beneficial owner and the amount estimated to be so payable. The Officer’s Certificate must also set forth any United States or (y) between a fiduciary, settlor, beneficiary, member, partner or shareholder or other information reasonably necessary to enable the Paying Agents to pay Additional Amounts to Holders on the relevant payment date. The Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts. The Trustee shall be entitled to rely absolutely on an Officer’s Certificate as conclusive proof that such payments are necessary.
(c) The Issuer or the relevant Guarantorequity owner of, if it is the applicable withholding agent, will make all withholdings and deductions (within the time period) required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The 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 Issuer or the relevant Guarantor will furnish to the Trustee (or to a Holder upon request), 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 Issuer or a Guarantorperson having a power over, as such Holder or beneficial owner if such Holder or beneficial owner is an estate, a trust, a limited liability company, a partnership, a corporation or other entity and the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entityUnited States.
(d) Whenever Any reference in this Indenture or in the Indenture Notes to principal or this Note there is mentioned, in any context, the interest or other payment of amounts based upon the principal amount of on the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of refer also to Additional Amounts to the extent that, in such context, Additional Amounts are, were or would that may be payable in respect thereofunder the provisions of this Section 2.14.
(e) The preceding obligations Except as specifically provided under this Section 2.14, the Issuer will survive not be required to make any terminationpayment with respect to any tax, defeasance duty, assessment or discharge other governmental charge imposed by any government or any political subdivision or taxing authority of or in the IndentureUnited States.
(f) As used in this Section 2.14, any transfer by “U.S. Holder” means a holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer a Note that is for U.S. federal income tax purposes (or any Guarantori) an individual who is incorporated, engaged in business, organized a citizen or resident of the United States, (ii) a corporation created or organized in or under the laws of the United States, any state thereof or the District of Columbia, (iii) an estate, the income of which is subject to U.S. federal income taxation regardless of the source of that income, or (iv) a trust, if (1) a U.S. court is able to exercise primary supervision over the trust’s administration and one or more “United States persons” (within the meaning of the Internal Revenue Code) have the authority to control all of the trust’s substantial decisions, or (2) the trust has a valid election in effect under applicable U.S. Treasury regulations to be treated as a “United States person” for U.S. federal income tax purposes, or any jurisdiction from or through which payment is made under or with respect to the Notes (or any Note Guarantee) by or on behalf of such Person and, in each case, any political subdivision thereof or therein.
Appears in 1 contract
Sources: Indenture (Catalent, Inc.)