Additional Amounts. If the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of: (a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note; (b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later; (c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge; (d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge; (e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note; (f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement; (g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or (h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
Appears in 2 contracts
Sources: Funding Note Indenture (Allstate Life Global Funding), Standard Funding Note Indenture Terms (Allstate Life Global Funding)
Additional Amounts. (a) All payments made by or on behalf of the Issuer 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 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 any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of any jurisdiction in which the Issuer or any Guarantor (including any successor entity) is then incorporated, engaged in business or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction from or through which payment is made by or on behalf of the Issuer or any Guarantor (including, without limitation, the jurisdiction of any Paying Agent) (each, a “Tax Jurisdiction”) 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 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, 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 (including Additional Amounts) after such withholding, deduction or 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 will be payable with respect to:
(i) any Taxes that would not have been imposed but for the holder or the Beneficial Owner of the Notes being a citizen or resident or national of, incorporated in or carrying on a business, in the relevant Tax Jurisdiction in which such Taxes are imposed or having any other present or former connection with the relevant Tax Jurisdiction other than the mere acquisition, holding, enforcement or the receipt of payment in respect of the Notes or with respect to any Note Guarantee;
(ii) any 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);
(iii) any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;
(iv) 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;
(vii) any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the holder or Beneficial Owner of Notes, following the Issuer’s written request addressed with reasonable prior written notice to the holder or Beneficial Owner, to comply with any certification, identification, information or other reporting requirements (to the extent such holder or Beneficial Owner is legally eligible to do so), whether required by statute, treaty, regulation or administrative practice of a 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); or
(viii) 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 respect thereof to any holder who is either a fiduciary of a Beneficial Owner or a partnership to the extent such principal or interest payment would be required (under the tax laws of the jurisdiction of the Issuer or, if applicable, the tax laws of the jurisdiction of a Guarantor) to be included in the taxable income of either the Beneficial Owner (in the case of a fiduciary) or a partner (in the case of a partnership) if such Beneficial Owner or partner would not have been entitled to such Additional Amounts had such Beneficial Owner or partner been the holder of such Note.
(b) In addition to the foregoing, the Issuer and the Guarantors will also pay and indemnify the holder for any present or future stamp, court or documentary taxes, or any other excise or property taxes, charges or similar levies or 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, or any Collateral Documents.
(c) If the Funding 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 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 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 Trustee shall be entitled to rely solely on such an Officer’s Certificate as conclusive proof that such payments are necessary.
(d) Upon written request the Issuer or the relevant Guarantor will provide for to the Trustee copies of receipts or, if such receipts are not obtainable, other documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amountsany Taxes so deducted or withheld. Upon request, Global Funding agrees to pay copies of those receipts or other documentation, as the case may be, will be made available by the Trustee to the Holder holders of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Notes.
(e) Whenever in the Funding Note this Indenture there is mentioned, in any context, the payment of amounts based upon the principal ofamount of the Notes or of principal, interest or of any other amount payable under, or interest or premium onwith respect to, or in respect of, the Funding Note or the net proceeds received on the sale or exchange any of the Funding NoteNotes, such reference mention shall be deemed to include reference to mention of the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
Appears in 2 contracts
Sources: Indenture (Sappi LTD), Indenture (Sappi LTD)
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder of Securities or that the Funding Note Additional Amounts as provided in Guarantors make under or with respect to the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guaranties shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on payments on the Funding Note by or on behalf of (1) any governmental authority in political subdivision or Governmental Authority thereof or therein having power to tax, (2) any jurisdiction from or through which payment on the United States Securities or the relevant Guaranty is made on behalf of the Issuers or any Guarantor, or any political subdivision or Governmental Authority thereof or therein having the power to tax, or (3) any other jurisdiction in which the Issuers or any Guarantor is organized or resident, or any political or Governmental Authority thereof or therein having the power to tax (each of clauses (1), (2) and (3), a “Relevant Taxing Jurisdiction”), unless the Issuers or such Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If the Issuers or a Guarantor is required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Securities, the Issuers or the Guarantor, as the case may be, shall, subject to the exceptions set forth in Section 2.19(b), pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by each Holder of the Securities after such withholding or deduction (including withholding or deduction attributable to Additional Amounts payable hereunder) shall not be less than the amount the Holder would have received if such Taxes had not been withheld or deducted.
(b) Neither the Issuers nor any Guarantor will, however, be required to pay Additional Amounts to a Holder or beneficial owner of a Security:
(1) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the Holder’s or beneficial owner’s present or former connection with the Relevant Taxing Jurisdiction (other than the acquisition, ownership, holding or disposition of a Security or by reason of the receipt of payments thereunder or under any Guaranty or the exercise or enforcement of rights under any Securities or this Indenture or under any Guaranty);
(2) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the failure of the Holder or beneficial owner of Securities, following the Issuers’ written request addressed to the Holder, to the extent such Holder or beneficial owner is legally entitled to do so, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(3) with respect to any estate, inheritance, gift, sales, transfer or personal property tax or any similar Taxes (other than stamp, issue, registration, court, documentation, excise or other similar Taxes referred to in Section 2.19(f));
(4) if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment and the Taxes giving rise to such Additional Amounts would not have been imposed on such payment had such 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);
(5) with respect to any Taxes that are payable otherwise than by deduction or withholding from payments on, or in respect of, the applicable Security or Guaranty;
(6) with respect to any Taxes imposed on amounts payable to such Holder or beneficial owner at the time such Holder becomes a party to this Indenture, except to the extent that such Holder’s transferor or assignor (if any) was entitled, at the time of assignment, to receive Additional Amounts with respect to such Taxes pursuant to Section 2.19(a); and
(7) with respect to any combination of the items listed above.
(c) The Issuers and the Guarantors will (1) make such withholding or deduction required by applicable law and (2) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Issuers and the Guarantors will provide to the Trustee either a certified copy of tax receipts evidencing such payment or, if such tax receipts are not reasonably available to the Issuers or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Issuers or such Guarantor.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Issuers or the Guarantors shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Securities is due and payable, in which case it shall be promptly thereafter), the Issuers shall deliver to the Trustee an Officers’ Certificate stating that such Additional Amounts shall be payable and the amounts so payable and shall set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date. The Issuers and the Guarantors shall promptly publish a notice in accordance with Section 12.2 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts.
(e) The Issuers and the Guarantors, jointly and severally, shall indemnify and hold harmless the Holders of Securities, and, upon written request of any Holder of Securities, reimburse such Holder for the amount of (1) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by such Holder in connection with payments made under or with respect to the Securities held by such Holder or any Guaranties; and (2) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (1) or this clause (2), so that the net amount received by such Holder after such reimbursement shall not be less than the net amount such Holder would have received if the Taxes giving rise to the reimbursement described in clauses (1) and/or (2) had not been imposed; provided, however, that the indemnification obligation provided for in this Section 2.19(e) shall not extend to Taxes imposed for which the eligible Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which Securities would not have been imposed but eligible to receive payment of Additional Amounts hereunder or to the extent such Holder received Additional Amounts with respect to such payments.
(f) The Issuers and the Guarantors shall pay and jointly and severally shall indemnify and hold harmless the Holders of Securities, and upon written request of any Holder of Securities, reimburse such Holder for a Holder or beneficial owner the amount of the Funding Note, (i) having any present or former connection with the United Statesfuture stamp, includingissue, without limitationregistration, being or having been a citizen or resident thereofcourt, or having been presentdocumentation, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment excise or other governmental charge which would not have been similar taxes, charges and duties, including interest and penalties with respect thereto, imposed but for the presentation of by any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments Relevant Taxing Jurisdiction in respect of the Funding Note;
(f) execution, issue, registration or delivery of the Securities or any taxGuaranties or any other document or instrument referred to thereunder and any such taxes, duty, levy, assessment charges or other governmental charge duties imposed by reason of payments on any jurisdiction as a result of, or in connection with, the Funding Note being treated as contingent interest described in Section 871(h)(4) enforcement of the Code Securities or any Guaranty and/or any other such document or instrument. The provisions of this Section 2.19 shall survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Issuers or any Guarantor and to any jurisdiction in which such successor is organized or is otherwise resident for United States Federal income tax purposes provided that or any jurisdiction from or through which payment is made by such treatment was described successor or its respective agents. Whenever this Indenture refers to, in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Notecontext, the effect payment of which is principal, premium, if any, interest or any other amount payable under or with respect to make any Security, such reference includes the payment in respect of the Funding Note subject to United States Federal income tax Additional Amounts or withholding tax provisions; or
(h) any combination of items (a)indemnification payments as described hereunder, (b), (c), (d), (e), (f) or (g) aboveif applicable.
Appears in 2 contracts
Sources: Indenture (FriendFinder Networks Inc.), Indenture (FriendFinder Networks Inc.)
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder of Notes or that the Funding Note Additional Amounts as provided in Guarantors make under or with respect to the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guarantees shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments on the Funding Note by or on behalf of any jurisdiction (other than the United States, any state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, resident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the Paying Agent) makes any payment on the Notes or by or within any department, political subdivision or governmental authority of or in any of the United States foregoing having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless such Issuer or Guarantor or other applicable withholding agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If an Issuer, Guarantor or other applicable withholding agent is required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Guarantee, such Issuer or Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder each beneficial owner of the Funding Note, Notes after giving effect to such withholding or deduction, whether deduction (including any withholding or deduction in respect of any Additional Amounts) will not currently payable, will equal be less than the amount that the beneficial owner would have received if such Taxes had not been received under withheld or deducted.
(b) None of the Funding Note were no such deduction Issuers or withholding required; provided that no such Guarantors shall, however, pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes, duty, levy, assessment to the extent such Taxes are imposed or other governmental charge imposed which would not have been imposed but for levied by a Holder Relevant Taxing Jurisdiction by reason of the Holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with such Relevant Taxing Jurisdiction (other than the United Statesmere receipt, includingownership, without limitation, being holding or having been a citizen or resident thereofdisposition of the Notes, or having been presentby reason of the receipt of any payments in respect of any Notes or any Guarantee, having been incorporated in, having engaged in a trade or business the exercise or having (enforcement of rights under any Notes or having had) a permanent establishment or principal office therein, any Guarantee);
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any Taxes to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which extent such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is Taxes are imposed or withheld solely by reason of the failure of the Holder or beneficial owner or a Holder of the Funding Note Notes, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification identification, information or information other reporting requirements concerning (to the nationality, residence, identity extent such holder or connection with the United States of the beneficial owner or a Holder of the Funding Noteis legally eligible to do so), if compliance is whether required by statute, by treaty, regulation of the United States Treasury Department, judicial or administrative interpretationpractice of a Relevant Taxing Jurisdiction, other law or by an applicable income tax treaty to which the United States is a party as a condition precondition to exemption from from, or reduction in the rate of deduction or withholding of, such taxTaxes imposed by the Relevant Taxing Jurisdiction (including, dutywithout limitation, levy, assessment a certification that the Holder or other governmental chargebeneficial owner is not resident in the Relevant Taxing Jurisdiction);
(diii) any estate, inheritance, gift, estatesales, transfer, personal property, sales, transfer property or similar tax, duty, levy, assessment, or similar governmental chargeTaxes;
(eiv) any tax, duty, levy, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding from payments in made under or with respect of to the Funding NoteNotes or any Guarantee;
(fv) any tax, duty, levy, assessment Tax imposed on or other governmental charge imposed with respect to any payment by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) any of the Code for United States Federal income tax purposes provided Issuers or Guarantors 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 such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but on such payment had such beneficial owner been the holder of such Note;
(vi) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for an election by payment (where presentation is required) more than 30 days after the relevant payment is first made available 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);
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC, as amended or supplemented from time to time, including through European Council Directive 2014/48/EC or any other Directive implementing the conclusions of the Funding NoteECOFIN Council meetings of November 26 and 27, 2000 on the effect taxation of which savings income or any law implementing or complying with, or introduced in order to conform to, any such Directive;
(ix) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or any amended or successor version that is substantively comparable and not materially more onerous to make payment comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 1471(b)(1) of the Internal Revenue Code of 1986 as of the Issue Date (or any amended or successor version described above), and including (for the avoidance of doubt) any intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionsforegoing; or
(hx) any combination of items the foregoing.
(ac) The Issuers and the Guarantors, if the applicable withholding agent, shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or any Guarantee is due and payable, if the Issuers or any Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or any Guarantee is due and payable, in which case it will be promptly thereafter), the Issuers shall deliver to the Trustee, with a copy to the Paying Agent, an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including, without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (bi) the execution, issue, delivery or registration of the Notes or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, the Notes or any Guarantee. Upon written request, any of the Issuers or a Guarantor will furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02, in such form as provided in the normal course by the taxing authority imposing such Taxes. If, notwithstanding the efforts of such Issuer or Guarantor to obtain such receipts, the same are not obtainable, such Issuer or Guarantor will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee such information as may be reasonably available to such Issuer and the Guarantors (and not otherwise in the possession of the Trustee) to enable determination of the amount of any withholding Taxes attributable to any particular Holder(s).
(e) Whenever this Indenture or the Notes refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to a Guarantee), (c)such reference includes the payment of Additional Amounts, (d), (e), if applicable.
(f) This Section 4.12 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction (gother than the United States, any state thereof or the District of Columbia) abovein which any successor Person to any of the Issuers or Guarantors is organized, resident or doing business for tax purposes or any jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on the Notes (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to tax.
Appears in 2 contracts
Sources: Senior Indenture (Ardagh Finance Holdings S.A.), Secured Indenture (Ardagh Finance Holdings S.A.)
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuer makes under or with respect to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in Notes or that any context, the payment of the principal of, Subsidiary Guarantor makes under or interest or premium on, or in with respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference to its Guarantee shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on payments on the Funding Note by or on behalf of any governmental authority jurisdiction in which the United States Issuer, the Subsidiary Guarantor or any Surviving Entity is incorporated, organized, engaged in business (where such Tax is imposed by reason of the Issuer, Subsidiary Guarantor, or Surviving Entity being engaged in business) or otherwise resident for tax purposes or from or through which any of the foregoing makes any payment on the Notes or the Guarantees (including the jurisdiction of any paying agent) or by or within any department or political subdivision thereof having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless the Issuer or such Subsidiary Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If the Issuer or any Subsidiary Guarantor is required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or a Guarantee, the Issuer or such Subsidiary Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the each Holder of the Funding Note, Notes (including Additional Amounts) after giving effect to such withholding or deduction, whether or deduction shall be not currently payable, will equal less than the amount that the Holder would have received if such Taxes had not been received under required to be withheld or deducted.
(b) Neither the Funding Note were no such deduction or withholding required; provided that no such Issuer nor any Subsidiary Guarantor shall, however, pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes that are imposed or levied by a Relevant Taxing Jurisdiction by reason of a present or former connection of a Holder (or a fiduciary, dutysettlor, levybeneficiary, assessment member or shareholder of, or possessor of a power over, such Holder, if the Holder is an estate, a trust, a partnership or a corporation) or a beneficial owner with such Relevant Taxing Jurisdiction (other governmental charge than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes, Guarantees or this Indenture);
(ii) any Taxes that are imposed which would not have been imposed but for a or levied by reason of the failure of the Holder or beneficial owner of Notes, following the Funding NoteIssuer’s written request addressed to the Holder (and made at a time which would enable the Holder or beneficial owner acting reasonably to comply with that request), to comply with any certification, identification, information or other reporting requirements which the Holder or such beneficial owner is legally required and legally entitled to satisfy, whether imposed by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (i) having any present or former connection with the United States, including, without limitation, being a certification that the Holder or having been a citizen or beneficial owner is not resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, Relevant Taxing Jurisdiction);
(iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Codeany estate, inheritance, gift, sales, transfer or similar Taxes;
(iv) being an actual any Tax which is payable otherwise than by deduction or constructive owner of 10 percent withholding from payments made under or more of with respect to the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder Notes or Guarantees;
(v) being subject to backup withholding as any Tax that is imposed or levied by reason of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is requiredrequired in order to receive payment) of such Notes for payment on a date more than 30 days after the date on which such payment becomes became due and payable or the date on which payment thereof is duly provided for, whichever occurs 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;
(vi) any Tax imposed on or with respect to any payment by the Issuer or any Subsidiary 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 a beneficiary or settlor with respect to such fiduciary, member of such partnership or the beneficial owner of such payment would not have been entitled to Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note;
(vii) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union;
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of 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 Directive; or
(ix) any combination of the above.
(c) The Issuer and any tax, duty, levy, assessment Subsidiary Guarantor shall (i) make such withholding or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance deduction as is required by statute, by regulation of applicable law and (ii) remit the United States Treasury Department, judicial full amount deducted or administrative interpretation, other law or by an withheld to the relevant taxing authority in the Relevant Taxing Jurisdiction in accordance with applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;law.
(d) At least 30 calendar days prior to each date on which any inheritancepayment under or with respect to the Notes is due and payable, giftif the Issuer or any Subsidiary Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, estatein which case it shall be promptly thereafter), personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;the Issuer shall deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts shall be payable and the amounts so payable and shall set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date. The Issuer shall promptly publish a notice in accordance with the provisions set forth in Section 13.02 stating that such Additional Amounts shall be payable and describing the obligation to pay such amounts.
(e) Upon request, the Issuer or the Subsidiary Guarantors shall furnish to the Trustee or the Holder copies of tax receipts evidencing the payment of any taxTaxes by the Issuer or the applicable Subsidiary Guarantor in such form as provided in the normal course by the taxing authority imposing such Taxes and as is reasonably available to the Issuer or the applicable Subsidiary Guarantor. If notwithstanding the efforts of the Issuer or the Subsidiary Guarantors to obtain such receipts, dutythe same are not obtainable, levythe Issuer or the applicable Subsidiary Guarantor shall provide the Trustee or such Holder other evidence satisfactory to the Trustee or the Holder of such payments by the Issuer or the applicable Subsidiary Guarantor.
(f) In addition, assessment the Issuer and the Subsidiary Guarantors shall pay any present or future stamp, issue, registration, documentation, excise or property taxes or other governmental charge that is payable otherwise than similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by withholding from payments any Relevant Taxing Jurisdiction in respect of the Funding Note;
execution, issue, delivery or registration of the Notes or any other document or instrument referred to thereunder (fother than in respect of the execution, issue, delivery or registration of Notes pursuant to Section 2.06, Section 2.07 or Section 2.10(a)(iv)) and any taxsuch taxes, duty, levy, assessment charges or other governmental charge duties imposed by reason of payments on any jurisdiction as a result of, or in connection with, the Funding Note being treated as contingent interest described in Section 871(h)(4) enforcement of the Code Notes and/or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes, and the Issuer and each Subsidiary Guarantor shall indemnify the Holders for United States Federal income tax purposes provided that any such treatment was described in the Pricing Supplement;taxes paid by such Holders.
(g) The obligations under this Section 4.17 shall apply mutatis mutandis to any taxjurisdiction in which any Surviving Entity or successor person to the Issuer is incorporated, dutyorganized, levyengaged in business or otherwise resident for tax purposes, assessment or any political subdivision or taxing authority thereof or therein. Whenever this Indenture refers to, in any context, the payment of principal, premium, if any, interest or any other governmental charge that would not have been imposed but for an election by the Holder of the Funding amount payable under or with respect to any Note, such reference includes the effect payment of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a)Additional Amounts, (b), (c), (d), (e), (f) or (g) aboveif applicable.
Appears in 2 contracts
Sources: Indenture (Invitel Holdings a/S), Indenture (Invitel Holdings a/S)
Additional Amounts. If The Company may redeem, in whole, but not in part, all of the Funding Note Certificate provide for Series B Preference Shares, upon notice given as provided in Section 7(h) herein, at a redemption price equal to US$25.00 per Series B Preference Share, plus any unpaid, accrued cumulative dividends, whether or not declared, on such Series B Preference Share, to, but excluding, the Redemption Date, without interest on such unpaid dividends, if there is, in the Company’s reasonable determination, based on the advice of external legal, financial and tax advisers with knowledge of such matters, as applicable, a substantial probability that the Company or any Successor Company would become obligated to pay additional amounts on the next succeeding Dividend Payment Date with respect to the Series B Preference Shares and the payment of Additional Amounts, Global Funding agrees to pay those additional amounts could not be avoided by the use of any reasonable measures available to the Holder Company or any Successor Company (a “Tax Event”); provided that no such redemption may occur unless one of the Funding Note Additional Amounts as provided in the Funding Note CertificateRedemption Requirements is satisfied. Whenever in the Funding Note Indenture there is mentionedAs used herein, in “Relevant Taxing Jurisdiction” means (A) Bermuda or any context, the payment political subdivision or governmental authority of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having Bermuda with the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(aB) any tax, duty, levy, assessment jurisdiction from or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to through which the United States Company or its dividend disbursing agent is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of making payments on the Funding Note being treated as contingent interest described Series B Preference Shares or any political subdivision or governmental authority of or in Section 871(h)(4that jurisdiction with the power to tax or (C) any other jurisdiction in which the Company or any Successor Company is organized or generally subject to taxation or any political subdivision or governmental authority of or in that jurisdiction with the power to tax. Prior to any redemption upon a Tax Event, the Company shall file with its corporate records and deliver to the transfer agent for the Series B Preference Shares a certificate signed by one of the Code for United States Federal income tax purposes provided Company’s officers confirming that such treatment was described in the Pricing Supplement;
a Tax Event has occurred and is continuing (g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election as reasonably determined by the Holder Company based on the advice of the Funding Note, the effect external tax and legal advisers). The Company shall include a copy of which is to make payment in respect this certificate with any notice of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovesuch redemption.
Appears in 2 contracts
Sources: Transaction Agreement (Sirius International Insurance Group, Ltd.), Confidential Transaction Agreement (Third Point Reinsurance Ltd.)
Additional Amounts. If the Funding Note Certificate provide for the The payment of Additional AmountsCapital Payments on the Class B Preferred Securities, Global Funding agrees to pay to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in and any context, the payment of the principal of, or interest or premium on, amount payable upon redemption thereof or in respect ofliquidation, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture made without any deduction or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments duties or governmental charges of whatever any nature imposed whatsoever imposed, levied or levied collected by or on behalf of the United States or Germany (or any jurisdiction from which payments are made) or, during any period in which any Substitute Obligations are outstanding, the jurisdiction of residence of any obligor on the Funding Note such Substitute Obligations (or any jurisdiction from which payments are made) (each a “Relevant Jurisdiction”) or by or on behalf of any governmental political subdivision or authority in the United States therein or thereof having the power to taxtax (collectively, so “Withholding Taxes”), unless such deduction or withholding is required by law. In such event, the Company shall pay as additional Capital Payments (or Arrears of Payments, as the case may be), such additional amounts (the “Additional Amounts”) to the Class B Preferred Securityholders as may be necessary in order that the net amount amounts received by the Holder Class B Preferred Securityholders and the Trust Preferred Securityholders after such deduction or withholding for or on account of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will Withholding Taxes shall equal the amount amounts that otherwise would have been received under the Funding Note were had no such deduction or withholding been required; provided , provided, however, that no such Additional Amounts shall be required for or on account of:payable in respect of the Class B Preferred Securities
(ai) in respect of each portion of the Upper Tier 2 Percentage of the Class B Preferred Securities for Class B Payment Periods prior to the Class B Payment Period during which the respective Tier 1 Qualification Election, if any, occurred, with respect to such portions, if and to the extent that the Company is unable to pay because such payment would exceed the Distributable Profits of the Bank for the fiscal year in respect of which the relevant Capital Payments are payable (after subtracting from such Distributable Profits the amount of the Capital Payments on the Upper Tier 2 Percentage of the Class B Preferred Securities and any taxpayments on Parity Capital Securities, dutythe Tier 1 Percentage, levyif any, assessment of the Class B Preferred Securities and Preferred Tier 1 Capital Securities, if any, already paid on the basis of such Distributable Profits on or prior to the date on which such Additional Amounts will be payable), in which case such Additional Amounts shall be deferred and will thereupon constitute Arrears of Payments;
(ii) in respect of each portion of the Tier 1 Percentage of the Class B Preferred Securities for Class B Payment Periods from and including the Payment Period during which the respective Tier 1 Qualification Election if any, occurred, with respect to such portion, if and to the extent that the Company is unauthorized to pay because of insufficient Distributable Profits of the Bank for the preceding fiscal year (after subtracting from such Distributable Profits the amounts of Capital Payments on the Tier 1 Percentage of the Class B Preferred Securities and the dividends and other governmental charge imposed distributions or payments on the Preferred Tier 1 Securities, if any, already paid on the basis of such Distributable Profits on or prior to the date on which would not have been imposed but for such Additional Amounts will be payable);
(iii) with respect to any Withholding Taxes that are payable by reason of a Holder or beneficial owner of the Funding Note, Class B Preferred Securities (other than the Trust) having some connection with the Relevant Jurisdiction other than by reason only of the mere holding or beneficial ownership of Class B Preferred Securities;
(iv) with respect to any Withholding Taxes which are deducted or withheld pursuant to (i) having European Council Directive 2003/48/EC or any present other European Union Directive or former connection with Regulation implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income, or (ii) any international treaty or understanding entered into for the purpose of facilitating cooperation in the reporting and collection of savings income and to which (x) the United States, including, without limitation, being and (y) the European Union or having been a citizen or resident thereofGermany are parties, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt any provision of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessmentimplementing, or similar governmental charge;
(e) any taxcomplying with, dutyor introduced to conform with, levysuch Directive, assessment Regulation, treaty or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionsunderstanding; or
(hv) to the extent such deduction or withholding can be avoided or reduced if the Holder or beneficial owner of Class B Preferred Securities makes a declaration of non-residence or other similar claim for exemption to the relevant tax authority or complies with any combination reasonable certification, documentation, information or other reporting requirement imposed by the relevant tax authority, provided, however, that this exclusion shall not apply if the certification, information, documentation or other reporting requirement would be materially more onerous (in form, procedure or substance of items information required to be disclosed) to the Holder or beneficial owner of Class B Preferred Securities than comparable information or other reporting requirements imposed under U.S. tax law, regulation and administrative practice (asuch as IRS Forms W-8 and W-9), (b), (c), (d), (e), (f) or (g) above.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Deutsche Bank Contingent Capital LLC V), Limited Liability Company Agreement (Deutsche Bank Contingent Capital LLC V)
Additional Amounts. All payments by the Issuer in respect of the notes or any Guarantor under a Note Guarantee, as the case may be, will be made free and clear of, and without withholding or deduction for or on account of, any present or future tax, duty, assessment or other governmental charge of whatever nature, including penalties, interest and other liabilities related thereto, imposed, levied, collected, withheld or assessed by or on behalf of any taxing jurisdiction in which the Issuer or any Guarantor (including successor) is then incorporated or resident for tax purposes, any taxing jurisdiction from or through which any payment in respect of the Notes or under a Note Guarantee is made or any political subdivision thereof or therein (hereafter “Taxes”), unless such withholding or deduction is required by law. If any such withholding or deduction is required by law, the Funding Issuer or the relevant Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as will result in receipt by the holders of Notes of such amounts as would have been received by them had no such withholding or deduction (including any deduction or withholding in respect of payments of Additional Amounts) been required, except that no Additional Amounts will be payable with respect to a payment made to a Holder or Beneficial Owner of Notes for or in respect of:
(a) Taxes imposed as a result of any of the following circumstances:
(1) the existence of any present or former connection between such Holder or Beneficial Owner of Notes and the jurisdiction imposing such tax (including without limitation, by virtue of the holder or Beneficial Owner carrying on a business or having a place of business in such jurisdiction), other than merely holding or ownership of, or receiving payments under such Note Certificate provide or Note Guarantee or exercising or enforcing any rights thereunder;
(2) if the Notes are held in definitive registered form (“Definitive Registered Notes”) and the presentation of Definitive Registered Notes (where presentation is required) for payment had occurred after 30 days after the date of such payment was due and payable or was provided for, whichever is later, except for Additional Amounts with respect to taxes that would have been imposed had the Holder presented the Note for payment within such 30-day period;
(3) the Holder or Beneficial Owner of a Note not dealing at arm’s length, within the meaning of the Income Tax Act (Canada), with the Issuer or a relevant Guarantor at the relevant time;
(b) any estate, inheritance, gift, sales, transfer, personal property or similar tax; or
(c) any Taxes, deduction or withholding imposed by reason of the failure of the Holder or Beneficial Owner of a Note to comply with certification, information or other reporting requirements after receiving a reasonable written advance request from the Issuer or a relevant Guarantor to so comply, if such compliance is required or imposed by a statute, treaty or regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from or reduction in all or part of such Taxes, deduction or withholding, in each case except where such Holder or Beneficial Owner is not legally able to so comply. The Issuer or relevant Guarantor will (1) make such withholding or deduction and (2) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Issuer or relevant Guarantor will make reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any taxes so deducted or withheld from the relevant taxing authority. The Issuer will furnish to the Holders of the Notes, within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of such payments. In addition, the Issuer and the Guarantors will indemnify and hold harmless each Holder and, upon written request of any Holder (subject to the exclusions set forth in clauses (a) through (c) of this Section 4.21 and provided that reasonable supporting documentation is provided), reimburse such holder for the amount of (i) any such Taxes levied or imposed as a result of payments made under or with respect to the Notes (including payments under this clause (i)); and (ii) any Taxes so levied or imposed with respect to any reimbursement under the foregoing clause (i), so that the net amount received by such holder after such reimbursement will not be less than the net amount such Holder would have received if Taxes on such reimbursement had not been levied or imposed. Any payment pursuant to this paragraph will be an Additional AmountsAmount. At least 30 days prior to each date on which any payment under or with respect to the Notes is due and payable, Global Funding agrees if the Issuer or relevant Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer or relevant Guarantor will deliver to the Holder of trustee an Officers’ Certificate stating the Funding Note fact that such Additional Amounts as provided in will be payable and the Funding Note Certificateamounts so payable and will set forth such other information necessary to enable the paying agent to pay such Additional Amounts to the Holders on the payment date. Whenever in the Funding Note this Indenture there is mentioned, in any context, the payment of amounts based upon the principal of, or premium, Special Interest, if any, interest or premium on, any other amount payable under or in with respect of, the Funding to any Note or the net proceeds received on the sale or exchange of the Funding NoteNote Guarantee, such reference shall mention will be deemed to include reference to mention of the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not madethereof. If the Funding Note Certificate provides for the payment of Additional AmountsIn addition, the Funding Note Certificate Issuer or relevant Guarantor will provide that Global Funding will paypay any stamp, or cause to be paidissue, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxesregistration, dutiesdocumentary, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment value added or other governmental charge imposed which would not have been imposed but for a Holder similar taxes and other duties (including interest and penalties) (“Other Taxes”) with respect to enforcement of or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any taxa Note Guarantee, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax creation, issue, offering, registration, execution or withholding tax provisions; or
(h) enforcement of the Notes, or any combination documentation with respect thereto and the Issuer and each Guarantor will indemnify the holders for any Other Taxes paid by such Holders. The foregoing obligations shall survive any termination, defeasance or satisfaction and discharge of items (a), (b), (c), (d), (e), (f) or (g) abovethe Notes.
Appears in 2 contracts
Sources: Indenture (AbitibiBowater Inc.), Indenture (AbitibiBowater Inc.)
Additional Amounts. If the Funding Note Certificate provide for the The payment of Additional AmountsCapital Payments on the Class B Preferred Securities, Global Funding agrees to pay to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in and any context, the payment of the principal of, or interest or premium on, amount payable upon redemption thereof or in respect ofliquidation, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture made without any deduction or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments duties or governmental charges of whatever any nature imposed whatsoever imposed, levied or levied collected by or on behalf of the United States or Germany (or any jurisdiction from which payments are made) or, during any period in which any Substitute Obligations are outstanding, the jurisdiction of residence of any obligor on the Funding Note such Substitute Obligations (or any jurisdiction from which payments are made) (each a “Relevant Jurisdiction”) or by or on behalf of any governmental political subdivision or authority in the United States therein or thereof having the power to taxtax (collectively, so “Withholding Taxes”), unless such deduction or withholding is required by law. In such event, the Company shall pay as additional Capital Payments, such additional amounts (the “Additional Amounts”) to the Class B Preferred Securityholders as may be necessary in order that the net amount amounts received by the Holder Class B Preferred Securityholders and the Trust Preferred Securityholders after such deduction or withholding for or on account of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will Withholding Taxes shall equal the amount amounts that otherwise would have been received under the Funding Note were had no such deduction or withholding been required; provided , provided, however, that no such Additional Amounts shall be required for or on account of:payable in respect of the Class B Preferred Securities
(ai) if and to the extent that the Company is unauthorized to pay because such payment would exceed the Distributable Profits of the Bank for the preceding fiscal year (after subtracting from such Distributable Profits the aggregate amount of the Capital Payments on the Class B Preferred Securities and any taxcapital payments or dividends on Preferred Tier 1 Securities, dutyif any, levy, assessment already paid on the basis of such Distributable Profits on or other governmental charge imposed prior to the date on which would not have been imposed but for such Additional Amounts shall be payable);
(ii) with respect to any Withholding Taxes that are payable by reason of a Holder or beneficial owner of Class B Preferred Securities (other than the Funding Note, Trust) having some connection with any Relevant Jurisdiction other than by reason only of the mere holding or beneficial ownership of Class B Preferred Securities;
(iii) with respect to any Withholding Taxes which are deducted or withheld pursuant to (i) having European Council Directive 2003/48/EC or any present other European Union Directive or former connection with Regulation implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income, or (ii) any international treaty or understanding entered into for the purpose of facilitating cooperation in the reporting and collection of savings income and to which (x) the United States, including, without limitation, being and (y) the European Union or having been Germany is a citizen or resident thereofparty, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt any provision of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessmentimplementing, or similar governmental charge;
(e) any taxcomplying with, dutyor introduced to conform with, levysuch Directive, assessment Regulation, treaty or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionsunderstanding; or
(hiv) to the extent such deduction or withholding can be avoided or reduced if the Holder or beneficial owner of Class B Preferred Securities makes a declaration of non-residence or other similar claim for exemption to the relevant tax authority or complies with any combination reasonable certification, documentation, information or other reporting requirement imposed by the relevant tax authority, provided, however, that the exclusion set forth in this clause (iv) shall not apply if the certification, information, documentation or other reporting requirement would be materially more onerous (in form, procedure or substance of items (ainformation required to be disclosed), to the Holder or beneficial owner of Class B Preferred Securities than comparable information or other reporting requirements imposed under U.S. tax law, regulation and administrative practice (bsuch as IRS Forms W-8 and W-9), (c), (d), (e), (f) or (g) above.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Deutsche Bank Capital Funding LLC IX), Limited Liability Company Agreement (Deutsche Bank Aktiengesellschaft)
Additional Amounts. If At least 30 days prior to each date on which payment of principal, premium, if any, or interest or other amounts on the Funding Note Notes is to be made (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”) with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide for the Trustee with documentation evidencing the payment of such Additional Amounts, Global Funding agrees to pay . Copies of such documentation shall be made available to the Holder Holders upon request. The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.12. The Issuer and each Guarantor (as applicable) will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer and each Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copy to the Trustee. If the Issuer or the Guarantors conduct business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, are required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply to such Holders as if references in such provision to “Taxes” included taxes imposed by way of deduction or withholding by any such Additional Taxing Jurisdiction (or any political subdivision thereof or taxing authority therein). The Issuer will pay any present stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in any Relevant Taxing Jurisdiction from the execution, delivery and registration of Notes upon original issuance and initial resale of the Funding 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 Additional Amounts Guarantee or any other document or instrument referred to therein. If at any time the Issuer changes its place of organization to outside of the United States or there is a new issuer organized outside of the United States, the Issuer or new issuer, as provided 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 Funding 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 CertificateGuarantee or any other document or instrument referred to therein under any law, rule or regulation in effect at the time of such change or thereafter. The foregoing obligations of this Section 4.12 and Paragraph 2 of the Notes will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Issuer or the Guarantors. Whenever in this Indenture or in the Funding Notes or any Note Indenture Guarantee there is mentioned, in any context, the payment of the principal ofprincipal, purchase price, premium or interest, if any, or interest any other amount payable under or premium on, or in with respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding to any Note, such reference mention shall be deemed to include reference to mention of the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
Appears in 2 contracts
Sources: Indenture (Fresenius Medical Care AG & Co. KGaA), Indenture (Fresenius Medical Care AG & Co. KGaA)
Additional Amounts. All payments made by or on behalf of any of the Guarantors under or with respect to the Notes and the Note Guarantees will be made free and clear of and without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied (including any penalties and interest related thereto) (“Taxes”) unless the withholding or deduction of such Taxes is then required by law or by the official interpretation or administration thereof. If, with respect to a Guarantor, any withholding or deduction for, or on account of, any Taxes imposed or levied by or on behalf of (i) any jurisdiction (other than the United States) in which such Guarantor is then incorporated, organized, engaged in business or resident for tax purposes, or any political subdivision or governmental authority thereof or therein having power to tax or (ii) any jurisdiction (other than the United States) from or through which payment is made by or on behalf of such Guarantor (each, a “Tax Jurisdiction”), will at any time be required to be made from any payments made by or on behalf of such Guarantor with respect to the Notes or its Note Guarantee, including, without limitation, payments of principal, redemption price, purchase price, interest or premium, such Guarantor will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by each Holder (including payments of Additional Amounts) after such withholding or deduction will equal the respective amounts that would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts will be payable with respect to:
(1) any Taxes that would not have been imposed but for the Holder or beneficial owner of the Notes being a citizen, resident or national of, incorporated in or carrying on a business in the relevant Tax Jurisdiction in which such Taxes are imposed, or having any other present or former connection with the relevant Tax Jurisdiction in which such Taxes are imposed other than by the mere acquisition or holding of any Note or the enforcement or receipt of payment under or in respect of any Note or any Note Guarantee;
(2) any Taxes 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 to the Holder or beneficial owner in writing at least 90 days before any such withholding or deduction would be made, by the Issuer or any of the Guarantors to provide timely or 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 requirements (to the extent such 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 all or part of such Taxes;
(3) any Taxes that are imposed or withheld as a result of the presentation of 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 would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(4) any estate, inheritance, gift, sales, use, transfer, personal property or similar Taxes;
(5) any Taxes which are payable otherwise than by deduction or withholding from payments made under or with respect to any Note Guarantee;
(6) any Taxes that were imposed with respect to any payment under or with respect to the Notes and the Note Guarantees to any Holder of a Note who is a fiduciary or partnership or Person other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary or a partner of such partnership or a beneficial owner would be required to include such payment in its income under the laws of the relevant Tax Jurisdiction and would not have been entitled to receive payment of the Additional Amounts had the beneficiary, settlor, partner or beneficial owner been the Holder of such Note;
(7) any Taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the Code, as of the Issue Date (or any amended or successor version of such sections that is 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 with respect to the foregoing or any law or regulation adopted pursuant to any such intergovernmental agreement, or any agreements entered into pursuant to Section 1471(b)(1) of the Code; or
(8) any combination of items (1) through (7) above. In addition to the foregoing, the Foreign Guarantors will, jointly and severally, pay and indemnify the Holders for any present or future stamp, issue, registration, transfer, court or documentary taxes, or any other excise, property or similar taxes levied by any Tax Jurisdiction on or in connection with the execution, delivery, registration or enforcement of the Note Guarantees provided by the Foreign Guarantors or with respect to any payment to a Holder of Notes thereunder (limited, solely in the case of taxes attributable to the receipt of any payments with respect thereto, to any such taxes that are not excluded under clauses (1) through (4) and (6) through (7) or any combination thereof). If the Funding Issuer or any Guarantor becomes aware that any Guarantor will be obligated to pay Additional Amounts with respect to any payment under or with respect to any Note Guarantee, the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date at least 30 days prior to the date of payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in 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 Agent to pay Additional Amounts on the relevant payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuer or the relevant Guarantor will provide for the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts, Global Funding agrees to pay . The relevant Guarantor will make all deductions and withholding of Taxes required by law and will remit the full amount deducted or withheld to the Holder of the Funding Note Additional Amounts as provided relevant Tax authority in the Funding Note Certificateaccordance with applicable law. Whenever in the Funding Note Indenture there is mentioned, in any context, The relevant Guarantor will use its reasonable efforts to obtain Tax receipts from each relevant Tax authority evidencing the payment of any Taxes so deducted or withheld. Upon written request, the relevant Guarantor will furnish to the Holders, within 60 days after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Guarantor, or if, notwithstanding such Guarantor’s efforts to obtain receipts, receipts are not obtained, other evidence of payments by such Guarantor. Whenever this Indenture mentions the payment of amounts based on the principal ofamount, interest or any other amount payable under, or interest or premium onwith respect to, or in respect of, the Funding any Note or the net proceeds received on the sale or exchange of the Funding NoteGuarantee, such reference mention shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such termsthereof. The above obligations will survive any termination, defeasance or discharge of this Indenture, any transfer by a Holder or beneficial owner of its Notes, and express reference will apply, mutatis mutandis, to the payment of Additional Amounts any jurisdiction in which any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts successor Person to any Guarantor is then incorporated, organized, engaged in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides business or resident for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will paytax purposes, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments political subdivision or governmental charges of whatever nature imposed authority thereof or levied on payments on the Funding Note therein having power to tax or any jurisdiction from or through which payment is made by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) aboveGuarantor.
Appears in 2 contracts
Sources: Indenture (Cooper-Standard Holdings Inc.), Indenture (Cooper-Standard Holdings Inc.)
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuer makes under or with respect to the Holder of Notes or that the Funding Note Additional Amounts as provided in Guarantors make under or with respect to the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guarantees shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on payments on the Funding Note by or on behalf of any governmental authority jurisdiction in which the United States having Issuer or any Guarantor is organized or is a resident for tax purposes or from or through which any of the power foregoing makes any payment on the Notes or any Guarantee or by or within any department or political subdivision thereof (each, a “Relevant Taxing Jurisdiction”), unless the Issuer or such Guarantor, as the case may be, is required to taxwithhold or deduct Taxes by law or by the interpretation or administration of law. If the Issuer or a Guarantor is required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, so the Issuer or the Guarantor, as the case may be, shall pay additional amounts in cash (“Additional Amounts”) as may be necessary to ensure that the net amount received by the each Holder of the Funding Note, after giving effect to such withholding or deduction, whether deduction (including withholding or deduction attributable to Additional Amounts payable hereunder) will not currently payable, will equal be less than the amount that the Holder would have received if such Taxes had not been received under withheld or deducted.
(b) Notwithstanding the Funding Note were foregoing, each of the Issuer and the Guarantors shall pay no such deduction Additional Amounts to a Holder or withholding required; provided that no beneficial owner of any Note:
(i) to the extent the Taxes giving rise to such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder the Holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with the United StatesRelevant Taxing Jurisdiction (other than a connection arising by reason of the acquisition, ownership, holding or disposition of Notes or by reason of the receipt of payments thereunder or under any Guarantee or the exercise or enforcement of rights under any Notes or the Indenture or under any Guarantee);
(ii) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the failure of the Holder or beneficial owner of Notes, following the Issuer’s written request addressed to the Holder, to the extent such Holder or beneficial owner is legally entitled to do so, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, being a certification that the Holder or having been a citizen or beneficial owner is not resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, Relevant Taxing Jurisdiction);
(iii) being a bank for United States Federal income with respect to any estate, inheritance, gift, sales, transfer or personal property tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, or any similar Taxes;
(iv) being an actual if such Holder is a fiduciary or constructive partnership or Person other than the sole beneficial owner of 10 percent such payment and the Taxes giving rise to such Additional Amounts would not have been imposed on such payment had such Holder been the beneficiary, partner or more sole beneficial owner, as the case may be, of such Note (but only if there is no material cost or expense associated with transferring such Note to such beneficiary, partner or sole beneficial owner and no restriction on such transfer that is outside the total combined voting power control of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder such beneficiary, partner or sole beneficial owner);
(v) being subject to backup withholding as of the date of extent the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which Taxes giving rise to such Additional Amounts would not have been imposed but for the presentation by the Holder of any Funding Note (Note, where presentation is required) , for payment on a date more than 30 days after the date on which such payment becomes became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(cvi) with respect to any taxwithholding or deduction that is imposed on a payment to an individual and that is required to be made pursuant to the European Council Directive on the taxation of savings income which was adopted by the ECOFIN Council on June 3, duty2003 or any law implementing or complying with, levyor introduced in order to conform to, assessment such directive (the “EU Savings Tax Directive”) or is required to be made pursuant to the Agreement between the European Community and the Swiss Confederation dated of October 26, 2004 providing for measures equivalent to those laid down in the EU Savings Tax Directive (the “EU-Swiss Savings Tax Agreement”) or any law or other governmental charge which is imposed regulation implementing or complying with, or introduced in order to conform to, such agreement; and
(vii) with respect to any combination of the items listed above. The Issuer and the Guarantors shall also make such withholding or deduction of Taxes required by applicable law and remit the full amount of Taxes so deducted or withheld solely to the relevant Taxing Authority in accordance with all applicable laws. The Issuer and the Guarantors shall make reasonable best efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes. The Issuer and the Guarantors shall provide to the Trustee, within a reasonable time after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, either a certified copy of tax receipts evidencing such payment or, if such tax receipts are not reasonably available to the Issuer or such Guarantor, such other documentation that provides reasonable evidence of such payment by reason the Issuer or such Guarantor.
(c) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Issuer or any Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Issuer shall deliver to the Trustee and Paying Agent an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable such Trustee and Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Issuer shall promptly publish a notice in accordance with Section 13.02 stating that such Additional Amounts will be payable and describing its obligations to pay such amounts. In addition, the Issuer or any Guarantor, as the case may be, shall pay (i) any present or future stamp, issue, registration, court documentation, excise or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the failure execution, issue, registration or delivery of the beneficial owner Notes or any Guarantee or any other document or instrument referred to thereunder and (ii) any such taxes, charges or duties imposed by any jurisdiction as a Holder result of, or in connection with, the enforcement of the Funding Note to comply with certification, identification Notes or information reporting requirements concerning the nationality, residence, identity any Guarantee and/or any other such document or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;instrument.
(d) The foregoing provisions shall survive any inheritancetermination, gift, estate, personal property, sales, transfer defeasance or similar tax, duty, levy, assessment, discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction in which any Surviving Entity (as defined in Section 5.01(b)(i)) is organized or similar governmental charge;resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein or any jurisdiction from or through which payment is made by such Surviving Entity.
(e) Whenever the Indenture or the Notes refer to, in any taxcontext, dutythe payment of principal, levypremium, assessment if any, interest or any other governmental charge amount payable under or with respect to any Note, such reference shall be deemed to include mention of the payment of Additional Amounts or indemnification payments as described hereunder, to the extent that is in such context Additional Amounts or indemnification payments are, were or would be payable otherwise than by withholding from payments in respect thereof pursuant to Section 4.12 of the Funding Note;Indenture.
(f) The Issuer and the Guarantors, jointly and severally, shall indemnify and hold harmless the Holders and, upon written request of any taxHolder, duty, levy, assessment reimburse such Holder for the amount of (i) any Taxes levied or other governmental charge imposed by reason of a Relevant Taxing Jurisdiction and payable by such Holder in connection with payments on made under or with respect to the Funding Note being treated as contingent interest Notes held by such Holder or any Guarantees; and (ii) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (i) or this clause (ii), so that the net amount received by such Holder after such reimbursement shall not be less than the net amount such Holder would have received if the Taxes giving rise to the reimbursement described in Section 871(h)(4clauses (i) and/or (ii) had not been imposed, provided, however, that the indemnification obligation provided for in this paragraph (f) shall not extend to Taxes imposed for which the eligible Holder of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Notes would not have been imposed but for an election by eligible to receive payment of Additional Amounts hereunder or to the extent such Holder of the Funding Note, the effect of which is received Additional Amounts with respect to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovesuch payments.
Appears in 2 contracts
Sources: Indenture (Digicel Group LTD), Indenture (Digicel Group LTD)
Additional Amounts. If the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context(a) The Issuer, the payment of the principal of, Company and any Subsidiary Guarantor are required to make all payments under this Indenture or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange Notes free and clear of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed or levied on payments on the Funding Note by or on behalf of the government of the country in which the Company, the Issuer or Subsidiary Guarantor and any governmental successor thereof is organized or incorporated or any political subdivision or any authority in the United States or agency therein or thereof having the power to tax, or any other jurisdiction in which the Company, the Issuer or any Subsidiary Guarantor is otherwise resident for tax purposes or the jurisdiction of any Paying Agent (each, a “Relevant Taxing Jurisdiction”), unless the Company, the Issuer or a Subsidiary Guarantor or Paying Agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Company, the Issuer or any Subsidiary Guarantor, or a Paying Agent is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, the Company, the Issuer or any Subsidiary Guarantor will be required to pay such additional amounts (“Additional Amounts”) with respect to the Notes as may be necessary so that the net amount received by the any Holder of the Funding Note, or beneficial owner (including Additional Amounts) after giving effect to such withholding or deduction, whether or deduction will not currently payable, will equal be less than the amount that such Holder or beneficial owner would have received if such Taxes had not been received under withheld or deducted; provided, however, that the Funding Note were no such deduction or withholding required; provided that no such foregoing obligation to pay Additional Amounts shall be required for or on account ofdoes not apply to:
(ai) any tax, duty, levy, assessment or other governmental charge imposed which Taxes that would not have been so imposed but for a Holder or beneficial owner the existence of the Funding Note, (i) having any present or former connection with between the United Statesrelevant Holder or beneficial owner and the Relevant Taxing Jurisdiction (including a connection between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant holder or beneficial owner, if the relevant holder or beneficial owner is an estate, nominee, trust, partnership or corporation, and the Relevant Taxing Jurisdiction) including, without limitationlimiting the generality of the foregoing, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, partner, member, shareholder, or possessor) of the Notes being or having been a citizen citizen, resident, or resident thereof, national thereof or being or having been present, having been incorporated in, having present or engaged in a trade or business therein or having (or having had) had a permanent establishment or principal office therein, ;
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Codeany estate, to the Funding Agreement Providerinheritance, gift, sales, transfer or personal property tax or similar Taxes;
(iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described any withholding or deduction in Section 881(c)(3)(A) respect of the CodeNotes (a) presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant note to any other paying agent, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not where the payment could have been imposed but for made without such deduction or withholding if the presentation beneficiary of any Funding Note (where presentation is required) the payment had presented the notes for payment on a date more than within 30 days after the date on which such payment becomes on the notes became due and payable or the date on which payment thereof is duly provided for, whichever occurs lateris later (except to the extent that the holder or beneficial owner would have been entitled to Additional Amounts had the notes been presented on the last day of such 30-day period);
(civ) any taxTaxes imposed with respect to any payment of principal (or premium, dutyif any) or interest on the Notes by the Company, levythe Issuer or any Subsidiary Guarantor to any Holder or beneficial owner who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment, assessment to the extent that a beneficiary or other governmental charge which is imposed settlor with respect to such fiduciary, a member of such a partnership or withheld solely by reason of the failure of the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner been the actual Holder or a Holder beneficial owner of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental chargeNotes;
(dv) any inheritance, gift, estate, personal property, sales, transfer Taxes that are payable other than by deduction or similar tax, duty, levy, assessment, withholding from payments made under or similar governmental chargewith respect to the Notes;
(evi) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge Taxes that would not have been imposed but for an election the failure of the Holder and/or beneficial owner (a) to comply with the Company’s, the Issuer’s, the Subsidiary Guarantor’s or the Paying Agent’s request in writing at least 30 days before any withholding for such Taxes to the Holder to provide certification, documentation, information or other evidence concerning the nationality, residence, entitlement to treaty benefits, identity, direct or indirect ownership of or investment in the Notes, or connection with the Relevant Taxing Jurisdiction of the Holder and/or beneficial owner of such Notes, or (b) to make any valid or timely declaration or similar claim or satisfy any other reporting requirement or to provide any information relating to such matters, whether required or imposed by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of withholding or deduction of, Taxes imposed by the Holder of Relevant Taxing Jurisdiction;
(vii) with respect to any payment made by the Funding NoteCompany or any Subsidiary Guarantor that is resident in Canada, the effect or is a partnership any partner of which is resident in Canada, in each case, for purposes of Part XIII of the Income Tax Act (Canada), any Taxes that are required to make be deducted or withheld from any payment under or in respect of the Funding Note subject Notes as a consequence of the Holder or beneficial owner of Notes or the recipient of the interest payable on the Notes not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with the Company or any Subsidiary Guarantor at the time of making any such payment;
(viii) with respect to any payment made by the Company or any Subsidiary Guarantor that is resident in Canada, or is a partnership any partner of which is resident in Canada, in each case, for purposes of Part XIII of the Income Tax Act (Canada), any Taxes that are required to be deducted or withheld from any payment under or in respect of the Notes as a consequence of the Holder or beneficial owner of the Notes being at any time a ‘‘specified non-resident shareholder’’ (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Company, the Issuer or any Subsidiary Guarantor or at any time not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with a “specified shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Company, the Issuer or any Subsidiary Guarantor or as a consequence of the payment being deemed to be a dividend under the Income Tax Act (Canada);
(ix) any Taxes payable under section 1471 through 1474 of the Code (or any successor or amended versions thereof), any regulations or other official guidance thereunder, or any agreement (including any intergovernmental agreement or any law implementing such governmental agreement) entered into in connection therewith (“FATCA”);
(x) any Taxes or penalties arising from the Holder’s or beneficial owner’s failure to comply with the Holder’s or beneficial owner’s obligations imposed under Part XVIII of the Income Tax Act (Canada), the Canada-United States Federal income tax Enhanced Tax Information Exchange Agreement Implementation Act (Canada) or withholding tax provisionsthe similar provisions of legislation of any other jurisdiction that has entered into an agreement with the United States of America to provide for the implementation of FATCA based reporting; or
(hxi) any combination of, or any Taxes arising from a combination of items the factors described in, (ai) to (x) above.
(c) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer, the Company or any Subsidiary Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer will deliver to the U.S. Trustee and paying agent for the affected Notes an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the U.S. Trustee or paying agent, as the case may be, to pay such Additional Amounts to Holders and beneficial owners of such Notes on the payment date. Each such Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters.
(b)d) The Issuer, the Company or the applicable Subsidiary Guarantor will also (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Issuer will provide the U.S. Trustee with official receipts or, if notwithstanding the efforts of the Issuer official receipts are not obtainable, other documentation reasonably satisfactory to the U.S. Trustee, evidencing the payment of any Tax so deducted or withheld for each Relevant Taxing Jurisdiction imposing such Taxes. The Issuer will attach to each official receipt or other documentation a certificate stating (x) that the amount of such Tax evidenced by the official receipt or other documentation was paid in connection with payments in respect of the principal amount of such Notes then outstanding and (y) the amount of such Tax paid per $1,000 of principal amount of such Notes.
(e) Whenever reference is made in this Indenture, in any context, to (i) the payment of principal, (c)ii) redemption prices or purchase prices in connection with a redemption or purchase of Notes, (d)iii) interest or (iv) any other amount payable on or with respect to the Notes, (e)such reference will be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are or would be payable in respect thereof.
(f) The Issuer will pay any present or future stamp, court, documentary or other similar taxes, charges or levies that arise in any jurisdiction from the execution, delivery or registration of, or enforcement of rights under, this Indenture or any related document.
(g) aboveThe obligations described under this Section 2.13 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to the Company or any Subsidiary Guarantor is organized or any political subdivision or taxing authority or agency thereof or therein.
(h) The Issuer, the Company and the Subsidiary Guarantors shall indemnify and hold harmless the Trustees for the amount of any Taxes in respect of which the Company, the Issuer or any Subsidiary Guarantor, is required to pay Additional Amounts pursuant to Section 2.13(b) that are levied or imposed and paid by the Trustees as a result of payments made under or with respect to the Notes, the Company Guarantee or any Subsidiary Guarantee, including any reimbursements under this clause 2.13(h).
Appears in 2 contracts
Sources: Indenture (Open Text Corp), Indenture (Open Text Corp)
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder of Notes or that the Funding Note Additional Amounts as provided in Guarantors make under or with respect to the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guarantees shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments on the Funding Note by or on behalf of any jurisdiction (other than the United States, any state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, resident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the Paying Agent) makes any payment on the Notes or by or within any department or political subdivision or governmental authority of or in any of the United States foregoing having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless such Issuer or Guarantor or other applicable withholding agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If an Issuer, Guarantor or other applicable withholding agent is required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Guarantee, such Issuer or Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder each beneficial owner of the Funding Note, Notes after giving effect to such withholding or deduction, whether deduction (including any withholding or deduction in respect of any Additional Amounts) will not currently payable, will equal be less than the amount that the beneficial owner would have received if such Taxes had not been received under withheld or deducted.
(b) None of the Funding Note were no such deduction Issuers or withholding required; provided that no such Guarantors shall, however, pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes, duty, levy, assessment to the extent such Taxes are imposed or other governmental charge imposed which would not have been imposed but for levied by a Holder Relevant Taxing Jurisdiction by reason of the Holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with such Relevant Taxing Jurisdiction (other than the United Statesmere receipt, includingownership, without limitation, being holding or having been a citizen or resident thereofdisposition of the Notes, or having been presentby reason of the receipt of any payments in respect of any Notes or any Guarantee, having been incorporated in, having engaged in a trade or business the exercise or having (enforcement of rights under any Notes or having had) a permanent establishment or principal office therein, any Guarantee);
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any Taxes to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which extent such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is Taxes are imposed or withheld solely by reason of the failure of the Holder or beneficial owner or a Holder of the Funding Note Notes, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification identification, information or information other reporting requirements concerning (to the nationality, residence, identity extent such holder or connection with the United States of the beneficial owner or a Holder of the Funding Noteis legally eligible to do so), if compliance is whether required by statute, by treaty, regulation of the United States Treasury Department, judicial or administrative interpretationpractice of a Relevant Taxing Jurisdiction, other law or by an applicable income tax treaty to which the United States is a party as a condition precondition to exemption from from, or reduction in the rate of deduction or withholding of, such taxTaxes imposed by the Relevant Taxing Jurisdiction (including, dutywithout limitation, levy, assessment a certification that the Holder or other governmental chargebeneficial owner is not resident in the Relevant Taxing Jurisdiction);
(diii) any estate, inheritance, gift, estatesales, transfer, personal property, sales, transfer property or similar tax, duty, levy, assessment, or similar governmental chargeTaxes;
(eiv) any tax, duty, levy, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding from payments in made under or with respect of to the Funding NoteNotes or any Guarantee;
(fv) any tax, duty, levy, assessment Tax imposed on or other governmental charge imposed with respect to any payment by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) any of the Code for United States Federal income tax purposes provided Issuers or Guarantors 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 such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but on such payment had such beneficial owner been the holder of such Note;
(vi) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for an election by payment (where presentation is required) more than 30 days after the relevant payment is first made available 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);
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the Funding NoteECOFIN Council meetings of November 26 and 27, 2000 on the effect taxation of which savings income or any law implementing or complying with, or introduced in order to conform to, any such Directive;
(ix) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or any amended or successor version that is substantively comparable and not materially more onerous to make payment comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 1471(b)(1) of the Internal Revenue Code of 1986 as of the Issue Date (or any amended or successor version described above), and including (for the avoidance of doubt) any intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionsforegoing; or
(hx) any combination of items the foregoing.
(ac) The Issuers and the Guarantors, if the applicable withholding agent, shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or any Guarantee is due and payable, if the Issuers or any Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or any Guarantee is due and payable, in which case it will be promptly thereafter), the Issuers shall deliver to the Trustee, with a copy to the Paying Agent, an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 stating that such Additional Amounts will be payable and describing its obligations to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including, without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (bi) the execution, issue, delivery or registration of the Notes or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, the Notes or any Guarantee. Upon written request, any of the Issuers or a Guarantor will furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02, in such form as provided in the normal course by the taxing authority imposing such Taxes. If, notwithstanding the efforts of such Issuer or Guarantor to obtain such receipts, the same are not obtainable, such Issuer or Guarantor will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee such information as may be reasonably available to such Issuer and the Guarantors (and not otherwise in the possession of the Trustee) to enable determination of the amount of any withholding Taxes attributable to any particular Holder(s).
(e) Whenever this Indenture or the Notes refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to a Guarantee), (c)such reference includes the payment of Additional Amounts, (d), (e), if applicable.
(f) This Section 4.12 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction (gother than the United States, any state thereof or the District of Columbia) abovein which any successor Person to any of the Issuers or Guarantors is organized, resident or doing business for tax purposes or any jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on the Notes (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to tax.
Appears in 2 contracts
Sources: Secured Indenture (Ardagh Finance Holdings S.A.), Senior Indenture (Ardagh Finance Holdings S.A.)
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuer makes under or with respect to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in Notes or that any context, the payment of the principal of, Subsidiary Guarantor makes under or interest or premium on, or in with respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference to its Guarantee shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on payments on the Funding Note by or on behalf of any governmental authority jurisdiction in which the United States Issuer, the Subsidiary Guarantor or any Surviving Entity is incorporated, organized, engaged in business (where such Tax is imposed by reason of the Issuer, Subsidiary Guarantor, or Surviving Entity being engaged in business) or otherwise resident for tax purposes or from or through which any of the foregoing makes any payment on the Notes or the Guarantees (including the jurisdiction of any paying agent) or by or within any department or political subdivision thereof having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless the Issuer or such Subsidiary Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If the Issuer or any Subsidiary Guarantor is required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or a Guarantee, the Issuer or such Subsidiary Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net 2 Insert if Global Note. amount received by the each Holder of the Funding Note, Notes (including Additional Amounts) after giving effect to such withholding or deduction, whether or deduction shall be not currently payable, will equal less than the amount that the Holder would have received if such Taxes had not been received under required to be withheld or deducted.
(b) Neither the Funding Note were no such deduction or withholding required; provided that no such Issuer nor any Subsidiary Guarantor shall, however, pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes that are imposed or levied by a Relevant Taxing Jurisdiction by reason of a present or former connection of a Holder (or a fiduciary, dutysettlor, levybeneficiary, assessment member or shareholder of, or possessor of a power over, such Holder, if the Holder is an estate, a trust, a partnership or a corporation) or a beneficial owner with such Relevant Taxing Jurisdiction (other governmental charge than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes, Guarantees or the Indenture);
(ii) any Taxes that are imposed which would not have been imposed but for a or levied by reason of the failure of the Holder or beneficial owner of Notes, following the Funding NoteIssuer’s written request addressed to the Holder (and made at a time which would enable the Holder or beneficial owner acting reasonably to comply with that request), to comply with any certification, identification, information or other reporting requirements which the Holder or such beneficial owner is legally required and legally entitled to satisfy, whether imposed by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (i) having any present or former connection with the United States, including, without limitation, being a certification that the Holder or having been a citizen or beneficial owner is not resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, Relevant Taxing Jurisdiction);
(iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Codeany estate, inheritance, gift, sales, transfer or similar Taxes;
(iv) being an actual any Tax which is payable otherwise than by deduction or constructive owner of 10 percent withholding from payments made under or more of with respect to the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder Notes or Guarantees;
(v) being subject to backup withholding as any Tax that is imposed or levied by reason of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is requiredrequired in order to receive payment) of such Notes for payment on a date more than 30 days after the date on which such payment becomes became due and payable or the date on which payment thereof is duly provided for, whichever occurs 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;
(vi) any Tax imposed on or with respect to any payment by the Issuer or any Subsidiary 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 a beneficiary or settlor with respect to such fiduciary, member of such partnership or the beneficial owner of such payment would not have been entitled to Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note;
(vii) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union;
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of 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 Directive; or
(ix) any combination of the above.
(c) The Issuer and any tax, duty, levy, assessment Subsidiary Guarantor shall (i) make such withholding or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance deduction as is required by statute, by regulation of applicable law and (ii) remit the United States Treasury Department, judicial full amount deducted or administrative interpretation, other law or by an withheld to the relevant taxing authority in the Relevant Taxing Jurisdiction in accordance with applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;law.
(d) At least 30 calendar days prior to each date on which any inheritancepayment under or with respect to the Notes is due and payable, giftif the Issuer or any Subsidiary Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, estatein which case it shall be promptly thereafter), personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;the Issuer shall deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts shall be payable and the amounts so payable and shall set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date. The Issuer shall promptly publish a notice in accordance with the provisions set forth in Section 13.02 of the Indenture stating that such Additional Amounts shall be payable and describing the obligation to pay such amounts.
(e) Upon request, the Issuer or the Subsidiary Guarantors shall furnish to the Trustee or the Holder copies of tax receipts evidencing the payment of any taxTaxes by the Issuer or the applicable Subsidiary Guarantor in such form as provided in the normal course by the taxing authority imposing such Taxes and as is reasonably available to the Issuer or the applicable Subsidiary Guarantor. If notwithstanding the efforts of the Issuer or the Subsidiary Guarantors to obtain such receipts, dutythe same are not obtainable, levythe Issuer or the applicable Subsidiary Guarantor shall provide the Trustee or such Holder other evidence satisfactory to the Trustee or the Holder of such payments by the Issuer or the applicable Subsidiary Guarantor.
(f) In addition, assessment the Issuer and the Subsidiary Guarantors shall pay any present or future stamp, issue, registration, documentation, excise or property taxes or other governmental charge that is payable otherwise than similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by withholding from payments any Relevant Taxing Jurisdiction in respect of the Funding Note;
execution, issue, delivery or registration of the Notes or any other document or instrument referred to thereunder (f) any taxother than in respect of the execution, dutyissue, levydelivery or registration of Notes pursuant to Section 2.06, assessment Section 2.07 or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(42.10(a)(iv) of the Code Indenture) and any such taxes, charges or duties imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes and/or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes, and the Issuer and each Subsidiary Guarantor shall indemnify the Holders for United States Federal income tax purposes provided that any such treatment was described in the Pricing Supplement;taxes paid by such Holders.
(g) The obligations under this paragraph 3 shall apply mutatis mutandis to any taxjurisdiction in which any Surviving Entity or successor person to the Issuer is incorporated, dutyorganized, levyengaged in business or otherwise resident for tax purposes, assessment or any political subdivision or taxing authority thereof or therein. Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other governmental charge that would not have been imposed but for an election by the Holder of the Funding amount payable under or with respect to any Note, such reference includes the effect payment of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a)Additional Amounts, (b), (c), (d), (e), (f) or (g) aboveif applicable.
Appears in 2 contracts
Sources: Indenture (Invitel Holdings a/S), Indenture (Invitel Holdings a/S)
Additional Amounts. All payments made under or with respect to the Notes under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, 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 organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes,” unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Funding Issuer, any Guarantor or other applicable withholding agent is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Certificate provide Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount — “Additional Amounts” — as may be necessary so that the net amount (including Additional Amounts) received by each beneficial owner after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such beneficial owner would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any beneficial owner to the extent such Taxes are imposed by reason of (i) such beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, otherwise than by the acquisition, ownership, holding or disposition of the Notes, the enforcement of rights under the Notes or under any Note Guarantee or the receipt of payments in respect of 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 payment of Additional AmountsIssuer, Global Funding agrees a Guarantor or other applicable withholding agent to pay make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the Holder 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 or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the Funding Note total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the 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 meaning of Section 864(d)(4) of the Code with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to current 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 (collectively, “FATCA”). The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. No such Additional Amounts as provided shall be payable with respect to the Notes under the Indenture or pursuant to any Note Guarantee where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the EU Savings Directive on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive. Wherever in the Funding Indenture or the Notes or any Note Certificate. Whenever in the Funding Note Indenture Guarantee there is are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the principal ofIndenture or the Notes, or (3) interest or premium on, (4) any other amount payable on or in with respect of, the Funding Note or the net proceeds received on the sale or exchange to any of the Funding NoteNotes or any Note Guarantee, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant thereof. At least 30 days prior to each date on which payment of principal, premium, if any, or interest or other amounts on the Notes is to be made (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such termsdate, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and express reference will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts 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 (including any penalties, interest or other liabilities related thereto) which arise in any provision Relevant Taxing Jurisdiction from the execution, delivery and registration of Notes upon original issuance and initial resale of the Funding 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 Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not madeGuarantee or any other document or instrument referred to herein or therein. If at any time the Funding Note Certificate provides for the payment Issuer changes its place of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause organization to be paid, Additional Amounts to a Holder outside of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder or there is a new issuer organized outside of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, includingthe Issuer or new issuer, without limitationas applicable, being will pay any stamp, court or having been a citizen or resident thereofdocumentary taxes, or having been presentany other excise, having been incorporated inproperty or similar taxes, having engaged charges or levies (including any penalties, interest or other liabilities related thereto) which arise in a trade the jurisdiction in which the Issuer or business or having new issuer is organized (or having hadany political subdivision thereof or therein) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within and are payable by the meaning of Section 957(a) Holders of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments Notes in respect of the Funding Note;
(f) Notes or any taxNote Guarantee or any other document or instrument referred to therein under any law, dutyrule or regulation in effect at the time of such change or thereafter. The foregoing obligations in this Paragraph 2 will survive any termination, levy, assessment defeasance or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) discharge of the Code for United States Federal income tax purposes provided that such treatment was described Indenture. References in this Paragraph 2 to the Pricing Supplement;
(gIssuer or any Guarantor shall apply to any successor(s) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovethereto.
Appears in 2 contracts
Sources: Indenture (Fresenius Medical Care AG & Co. KGaA), Indenture (Fresenius Medical Care AG & Co. KGaA)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any Guarantor (each a “Payor”) under or with respect to the Notes or any Note Guarantee will be made free and clear of and without withholding or deduction for or on account of Taxes imposed or levied by or on behalf of any jurisdiction in which such Payor is organized, resident or carrying on business for tax purposes or from or through which such Payor (or its agents) makes any payment on the Notes or any Note Guarantee or any department or political subdivision thereof (each, a “Relevant Taxing Jurisdiction”), unless such Payor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If a Payor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Funding Notes or any Note Certificate provide Guarantee, such Payor, subject to the exceptions set forth in Section 2.5(b), will pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received in respect of such payment by each Holder or Beneficial Holder after such withholding or deduction (including withholding or deduction attributable to Additional Amounts payable hereunder but excluding Taxes on net income) will not be less than the amount the Holder or Beneficial Holder, as the case may be, would have received if such Taxes had not been required to be so withheld or deducted.
(b) Notwithstanding Section 2.5(a), a Payor will not, however, pay Additional Amounts to a Holder or Beneficial Holder with respect to any of the following Taxes imposed on or with respect to a Holder or Beneficial Holder or required to be withheld or deducted from a payment to a Holder or Beneficial Holder:
(i) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case (i) imposed as a result of such Holder or Beneficial Holder being organized under the laws of, having a business office located in, or being a resident of the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes;
(ii) in the case of a Holder or Beneficial Holder, withholding Taxes imposed on amounts payable to or for the account of such Holder or Beneficial Holder with respect to an applicable interest in an Indenture Obligation pursuant to a law in effect on the date on which such Holder or Beneficial Holder acquires such interest in the Indenture Obligation;
(iii) Taxes attributable to such Holder or Beneficial Holder’s failure to comply with a request from the Trustee to provide a tax exemption certificate;
(iv) any withholding Taxes imposed under FATCA;
(v) any Canadian withholding Taxes imposed under the Tax Act on any amount paid or credited, or deemed as paid or credited, by or on account of any obligation of the Issuer under this Indenture (i) to a Holder or Beneficial Holder or recipient with which the Payor does not deal at arm’s length (for the purposes of the Tax Act) at the time of making such payment or (ii) in respect of a debt or other obligation to pay an amount to a Holder or Beneficial Holder or recipient with whom the Payor is not dealing at arm’s length (for the purposes of the Tax Act) at the time of such payment (other than where, in the case of the foregoing clauses (i) or (ii), the non- arm’s length relationship arises as a result of such Holder or Beneficial Holder or recipient having become a party to, received or perfected a security interest under or received or enforced any rights under this Indenture or any other Note Document);
(vi) any Canadian withholding Taxes imposed under the Tax Act on any amount paid or credited, or deemed as paid or credited, by any Holder or Beneficial Holder or recipient by reason of such Holder or Beneficial Holder or recipient (i) being a “specified non-resident shareholder” (as defined in subsection 18(5) of the Tax Act) of the Issuer or (ii) not dealing at arm’s length (for the purposes of the Tax Act) with a “specified non-resident shareholder” (as defined in subsection 18(5) of the Tax Act) of the Issuer; or
(vii) any combination of the foregoing items (i) through (vi).
(c) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or any Note Guarantee is due and payable, if a Payor will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 35th day prior to the date on which such payment is due and payable, in which case it will be promptly thereafter), the Payor will deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date.
(d) The Payors, jointly and severally, will indemnify and hold harmless the Holders and Beneficial Holders and, upon written request of any Holder or Beneficial Holder, reimburse such Holder or Beneficial Holder for the amount of (i) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by such Holder or Beneficial Holder in connection with payments made under or with respect to the Notes held by such Holder or Beneficial Holder and (ii) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (i) or this clause (ii), so that the net amount received by such Holder or Beneficial Holder after such reimbursement will not be less than the net amount such Holder or Beneficial Holder would have received if the Taxes giving rise to the reimbursement described in clauses (i) and/or (ii) had not been imposed; provided, however, that the indemnification or reimbursement obligations provided for in this clause (d) shall not extend to Taxes for which the applicable Holder or Beneficial Holder would not have been eligible to receive payment of Additional Amounts, Global Funding agrees Amounts hereunder by virtue of clauses (i) through (vii) of Section 2.5(b) if the Payor had been required to pay withhold from such payments or to the extent such Holder or Beneficial Holder received Additional Amounts with respect to such payments.
(e) In addition, the Payor will pay any stamp, issue, registration, court, documentation, excise or other similar taxes, charges and duties, including any interest, penalties and any similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction at any time in respect of the Funding execution, issuance, registration or delivery of the Notes, any Note Additional Amounts Guarantee or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any Relevant Taxing Jurisdiction on any payments made pursuant to the Notes or any Note Guarantee or as provided a result of, or in connection with, the Funding enforcement of the Notes, any Note CertificateGuarantee and/or any other such document or instrument.
(f) The obligations described under this Section 2.5 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to any Payor and to any jurisdiction in which such successor is organized or is otherwise resident or doing business for tax purposes or any jurisdiction from or through which payment is made by such successor or its respective agents. Whenever in the Funding Note this Indenture there is mentionedrefers to, in any context, the payment of the principal ofprincipal, or Premium (if any) and interest or premium on, any other amount payable under or in with respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding to any Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed indemnification payments as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in this Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note2.5, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) aboveapplicable.
Appears in 2 contracts
Sources: Trust Indenture, Trust Indenture
Additional Amounts. If At least 30 days prior to each date on which payment of principal, premium, if any, or interest or other amounts on the Funding Note Notes is to be made (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer, any Guarantor or other applicable withholding agent will be obligated to pay Additional Amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”) with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide for the Trustee with documentation evidencing the payment of such Additional Amounts, Global Funding agrees to pay . Copies of such documentation shall be made available to the Holder Holders upon request. The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.12. The Issuer will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copy to the Trustee. If the Issuer or the Guarantors conduct business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, are required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply to such Holders as if references in such provision to “Taxes” included taxes imposed by way of deduction or withholding by any such Additional Taxing Jurisdiction (or any political subdivision thereof or taxing authority therein). The Issuer will pay any present stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in Luxembourg (or any political subdivision thereof or therein) from the execution, delivery and registration of Notes upon original issuance and initial resale of the Funding Notes or any other document or instrument referred to therein, or in connection with the enforcement of the Notes or any Note Additional Amounts Guarantee or any other document or instrument referred to therein. If at any time the Issuer changes its place of organization to outside of Luxembourg or there is a new issuer organized outside of Luxembourg, the Issuer or new issuer, as provided 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 Funding Note Certificatejurisdiction in which the Issuer or new issuer is organized (or any political subdivision thereof or therein) and are payable by the Holders of the Notes in respect of the Notes or any other document or instrument referred to therein under any law, rule or regulation in effect at the time of such change. The foregoing obligations of this Section 4.12 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Issuer or the Guarantors. Whenever in this Indenture or in the Funding Note Indenture Notes there is mentioned, in any context, the payment of the principal ofprincipal, premium or interest, if any, or interest any other amount payable under or premium on, or in with respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding to any Note, such reference mention shall be deemed to include reference to mention of the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
Appears in 2 contracts
Sources: Indenture (Fresenius Medical Care AG & Co. KGaA), Indenture (Fresenius Medical Care AG & Co. KGaA)
Additional Amounts. All payments made under or with respect to this Note under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of the (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, 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 organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes”, unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Funding Issuer, a Guarantor or other applicable withholding agent making a payment on behalf of the Issuer or a Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Certificate provide Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount (such amount the “Additional Amounts”) as may be necessary so that the net amount (including Additional Amounts) received by each holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any holder to the extent such Taxes are imposed by reason of (i) such holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, other than by the acquisition, ownership, holding or disposition of this Note, the enforcement of rights under this Note or under any Note Guarantee or the receipt of payments in respect of this Note or any Note Guarantee, or (ii) such holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the payment of Additional AmountsIssuer, Global Funding agrees Guarantors or other applicable withholding agent to pay make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the Holder receipt of any payment on or in respect of this Note or any Note Guarantee a complete, correct and executed IRS Form W-8 or W-9 or substitute or successor form, as applicable, with all appropriate attachments or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the Funding Note Additional Amounts total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax imposed on interest by the 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 meaning of Section 864(d)(4) of the Internal Revenue Code of 1986, as provided amended (the “Code”) with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the Funding ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to FATCA, (v) with respect to German tax residents any Tax withheld by a German custodian, who is required to deduct the withholding tax from such interest payments, provided that this Note Certificateis held in custody with such German custodian. Whenever The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Funding Indenture, this Note Indenture or any Note Guarantee there is are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the principal ofIndenture or this Note, or (3) interest or premium on, (4) any other amount payable on or in with respect of, the Funding to this Note or the net proceeds received on the sale or exchange of the Funding Noteany Note Guarantee, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not madethereof. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than At least 30 days after the date on which such payment becomes due and payable or the prior to each date on which payment is duly provided forof principal, whichever occurs later;
(c) any taxpremium, dutyif any, levy, assessment interest or other governmental charge amounts on this Note is to be made (unless an obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which is imposed case it shall be promptly thereafter), if the Issuer or withheld solely by reason a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts. Copies of such documentation shall be made available to the holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the failure of Indenture. References in this Paragraph 2 to the beneficial owner Issuer or a Holder of the Funding Note any Guarantor shall apply to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(dany successor(s) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovethereto.
Appears in 2 contracts
Sources: Indenture (Fresenius Medical Care AG & Co. KGaA), Indenture (Fresenius Medical Care AG & Co. KGaA)
Additional Amounts. If the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay All payments under or with respect to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal Notes or a Guarantee will be made free and clear of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of of, any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied on payments on the Funding Note by or on behalf of the government of the countries in which each of the Issuer, the relevant Guarantor and, in each case, any governmental successor thereof (each, a “Payor”) is organized, or any other jurisdiction in which the relevant Payor is organized or is otherwise resident for tax purposes, or any jurisdiction from or through which payment is made, in each case, including any political subdivision or any authority in the United States or agency therein or thereof having the power to taxtax (each a “Relevant Taxing Jurisdiction”), unless the relevant Payor is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. If a Payor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or a Guarantee, as applicable, such Payor will be required to pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holder of the Funding Note, any holder after giving effect to such withholding or deduction, whether deduction (including any such withholding or not currently payable, deduction in respect of such Additional Amounts) will be equal to the amount that the holder would have received if such Taxes had not been received under withheld or deducted; provided, however, that the Funding Note were no such deduction or withholding required; provided that no such foregoing obligation to pay Additional Amounts shall be required for or on account ofdoes not apply to:
(a1) any tax, duty, levy, assessment or other governmental charge imposed which Taxes that would not have been so imposed but for a Holder or beneficial owner the existence of the Funding Note, (i) having any present or former connection with between the United Statesrelevant holder or beneficial owner of a Note (or between a fiduciary, settlor, member, partner or shareholder of, or possessor of power over the relevant holder, if the relevant holder is an estate, nominee, trust, partnership or corporation) and the Relevant Taxing Jurisdiction including, without limitation, such holder or beneficial owner being or having been a citizen domiciliary, national or resident thereof, or being or having been present, having been incorporated in, having present or engaged in a trade or business therein or having (or having had) had a permanent establishment or principal office therein, fixed based therein (ii) being other than a controlled foreign corporation within connection resulting from the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose mere receipt of interest on such payment, the Funding ownership or holding of such Note is described in Section 881(c)(3)(A) or enforcement of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated rights thereunder or (v) being subject to backup withholding as of under the date of the purchase by the Holder of the Funding NoteGuarantee);
(b2) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
Appears in 2 contracts
Sources: Indenture (Central European Media Enterprises LTD), Indenture (Central European Media Enterprises N.V.)
Additional Amounts. All payments made under or with respect to the Notes under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, 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 organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes,” unless the Issuer, relevant Guarantor or other applicable withholding agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Funding Issuer, any Guarantor or other applicable withholding agent is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Certificate provide Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount — “Additional Amounts” — as may be necessary so that the net amount (including Additional Amounts) received by each beneficial owner after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such beneficial owner would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any beneficial owner to the extent such Taxes are imposed by reason of (i) such beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, otherwise than by the acquisition, ownership, holding or disposition of the Notes, the enforcement of rights under the Notes or under any Note Guarantee or the receipt of payments in respect of 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 payment of Additional AmountsIssuer, Global Funding agrees a Guarantor or other applicable withholding agent to pay make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the Holder 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 or a comparable form required by another Relevant Taxing Jurisdiction). Further, no Additional Amounts shall be payable with respect to (i) any Tax on interest imposed by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner holding or owning, actually or constructively, 10% or more of the Funding Note total combined voting power of all classes of stock of the Issuer or any Guarantor entitled to vote, (ii) any Tax on interest imposed by the 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 meaning of Section 864(d)(4) of the Code with respect to the Issuer or any Guarantor, (iii) any Tax imposed on interest by the United States or any political subdivision or governmental authority thereof or therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business or (iv) any United States federal tax imposed pursuant to current 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 (collectively, “FATCA”). The Issuer or any Guarantor (as applicable) required to withhold any Taxes will make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or any Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. No such Additional Amounts as provided shall be payable with respect to the Notes under the Indenture or pursuant to any Note Guarantee where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the EU Savings Directive on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive. Wherever in the Funding Indenture or the Notes or any Note Certificate. Whenever in the Funding Note Indenture Guarantee there is are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the principal ofIndenture or the Notes, or (3) interest or premium on, (4) any other amount payable on or in with respect of, the Funding Note or the net proceeds received on the sale or exchange to any of the Funding NoteNotes or any Note Guarantee, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant thereof. At least 30 days prior to each date on which payment of principal, premium, if any, or interest or other amounts on the Notes is to be made (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such termsdate, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and express reference will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide the Trustee with documentation evidencing the payment of such Additional Amounts 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 (including any penalties, interest or other liabilities related thereto) which arise in any provision Relevant Taxing Jurisdiction from the execution, delivery and registration of Notes upon original issuance and initial resale of the Funding 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 Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not madeGuarantee or any other document or instrument referred to herein or therein. If at any time the Funding Note Certificate provides for the payment Issuer changes its place of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause organization to be paid, Additional Amounts to a Holder outside of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder or there is a new issuer organized outside of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, includingthe Issuer or new issuer, without limitationas applicable, being will pay any stamp, court or having been a citizen or resident thereofdocumentary taxes, or having been presentany other excise, having been incorporated inproperty or similar taxes, having engaged charges or levies (including any penalties, interest or other liabilities related thereto) which arise in a trade the jurisdiction in which the Issuer or business or having new issuer is organized (or having hadany political subdivision thereof or therein) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within and are payable by the meaning of Section 957(a) Holders of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments Notes in respect of the Funding Note;
(f) Notes or any taxNote Guarantee or any other document or instrument referred to therein under any law, dutyrule or regulation in effect at the time of such change or thereafter. The foregoing obligations in this Paragraph 2 will survive any termination, levy, assessment defeasance or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) discharge of the Code for United States Federal income tax purposes provided that such treatment was described Indenture. References in this Paragraph 2 to the Pricing Supplement;
(gIssuer or any Guarantor shall apply to any successor(s) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovethereto.
Appears in 2 contracts
Sources: Indenture (Fresenius Medical Care AG & Co. KGaA), Indenture (Fresenius Medical Care AG & Co. KGaA)
Additional Amounts. If the Funding Note Certificate provide for the payment (a) Subject to Clause 4.1(b), all payments made by each Guarantor under or with respect to this Guarantee will be made free and clear of Additional Amounts, Global Funding agrees to pay to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment, or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied on payments on the Funding Note by or on behalf of any governmental government or political subdivision or territory or possession of any government or authority in the United States or Agency therein or thereof having the power to taxtax (each, a “Taxing Authority”) within the jurisdiction in which the relevant Guarantor is resident for tax purposes or Luxembourg (or any Qualifying Jurisdiction in which the Lender or any successor thereto is resident for tax purposes), unless the relevant Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. For the avoidance of doubt, this Clause 4.1 shall not apply to any Taxes on income payable by the Lender.
(b) If at any time a Guarantor is required to withhold or deduct any amount for or on account of Taxes imposed or levied by or on behalf of any Taxing Authority within the jurisdiction in which the relevant Guarantor is resident for tax purposes or Luxembourg (or any Qualifying Jurisdiction in which the Lender or any successor thereto is resident for tax purposes) from any payment made under or with respect to the Guarantee, that Guarantor, failing which the other Guarantors, shall, on the due date for such payment, pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holder Lender (including Additional Amounts) in U.S. dollars after such withholding or deduction will not be less than the amount the Lender would have received if such Taxes had not been withheld or deducted and free from liability in respect of the Funding Note, after giving effect to such withholding or deduction; provided, whether or not currently payablehowever, will equal that for the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no avoidance of doubt, such Additional Amounts shall not be required for or payable with respect to any Taxes on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase payable by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;Lender.
(c) any tax, duty, levy, assessment Each Guarantor will also:
(i) make such withholding or other governmental charge which is imposed deduction; and
(ii) remit the full amount deducted or withheld solely by reason of to the failure of the beneficial owner or a Holder of the Funding Note to comply relevant authority in accordance with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;law.
(d) If the Lender pays any inheritanceamount in respect of such Taxes in respect of which Additional Amounts are payable (without prejudice to, giftand duplication of, estatethe provisions of Clause 4.3 (Tax Indemnity)), personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;each relevant Guarantor shall reimburse the Lender in U.S. dollars for such payment on demand.
(e) Whenever this Guarantee mentions, in any taxcontext, dutythe payment of amounts based upon the principal or premium, levyif any, assessment interest or of any other governmental charge amount payable under or with respect to the Loan or the Guarantee, this includes, without duplication, payment of any Additional Amounts and Tax Indemnity Amounts that is payable otherwise than may be applicable. The foregoing provisions shall apply, modified as necessary, to any Taxes imposed or levied by withholding from payments any Taxing Authority in respect any jurisdiction in which any Guarantor or any successor of the Funding Note;
(f) Borrower or of any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which Guarantor is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) aboveorganised.
Appears in 1 contract
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder of Notes or that the Funding Note Additional Amounts as provided in Guarantors make under or with respect to the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guarantees shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments on the Funding Note by or on behalf of any jurisdiction (other than the United States, any state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, resident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the Paying Agent) makes any payment on the Notes or by or within any department, political subdivision or governmental authority of or in any of the United States foregoing having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless such Issuer or Guarantor or other applicable withholding agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If either Issuer, a Guarantor or other applicable withholding agent is required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Guarantee, such Issuer or Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder each beneficial owner of the Funding Note, Notes after giving effect to such withholding or deduction, whether deduction (including any withholding or deduction in respect of any Additional Amounts) will not currently payable, will equal be less than the amount that the beneficial owner would have received if such Taxes had not been received under withheld or deducted.
(b) None of the Funding Note were no such deduction Issuers or withholding required; provided that no such Guarantors shall, however, pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes, duty, levy, assessment to the extent such Taxes are imposed or other governmental charge imposed which would not have been imposed but for levied by a Holder Relevant Taxing Jurisdiction by reason of the Holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with such Relevant Taxing Jurisdiction (other than the United Statesmere receipt, includingownership, without limitation, being holding or having been a citizen or resident thereofdisposition of the Notes, or having been presentby reason of the receipt of any payments in respect of any Notes or any Guarantee, having been incorporated in, having engaged in a trade or business the exercise or having (enforcement of rights under any Notes or having had) a permanent establishment or principal office therein, any Guarantee);
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any Taxes to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which extent such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is Taxes are imposed or withheld solely by reason of the failure of the Holder or beneficial owner or a Holder of the Funding Note Notes, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification identification, information or information other reporting requirements concerning (to the nationality, residence, identity extent such holder or connection with the United States of the beneficial owner or a Holder of the Funding Noteis legally eligible to do so), if compliance is whether required by statute, by treaty, regulation of the United States Treasury Department, judicial or administrative interpretationpractice of a Relevant Taxing Jurisdiction, other law or by an applicable income tax treaty to which the United States is a party as a condition precondition to exemption from from, or reduction in the rate of deduction or withholding of, such taxTaxes imposed by the Relevant Taxing Jurisdiction (including, dutywithout limitation, levy, assessment a certification that the Holder or other governmental chargebeneficial owner is not resident in the Relevant Taxing Jurisdiction);
(diii) any estate, inheritance, gift, estatesales, transfer, personal property, sales, transfer property or similar tax, duty, levy, assessment, or similar governmental chargeTaxes;
(eiv) any tax, duty, levy, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding from payments in made under or with respect to the Notes or any Guarantee;
(v) any Tax imposed on or with respect to any payment by any of the Funding Note;
(f) any tax, duty, levy, assessment Issuers or Guarantors to the Holder if such Holder is a fiduciary or partnership or Person other governmental charge imposed by reason than the sole beneficial owner of payments on such payment to the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided extent that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but on such payment had such beneficial owner been the holder of such Note;
(vi) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union or the United Kingdom;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for an election by payment (where presentation is required) more than 30 days after the relevant payment is first made available 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);
(viii) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Funding NoteInternal Revenue Code of 1986 as of the Issue Date (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 or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 1471(b)(1) of the effect Internal Revenue Code of which is to make payment 1986 as of the Issue Date (or any amended or successor version described above), and including (for the avoidance of doubt) any intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionsforegoing; or
(hix) any combination of items the foregoing.
(ac) The Issuers and the Guarantors, if the applicable withholding agents, shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or any Guarantee is due and payable, if the Issuers or any Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or any Guarantee is due and payable, in which case it will be promptly thereafter), the Issuers shall deliver to the Trustee, with a copy to the Paying Agent, an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including, without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (bi) the execution, issue, delivery or registration of the Notes or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, the Notes or any Guarantee. Upon written request, any of the Issuers or a Guarantor will furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02, in such form as provided in the normal course by the taxing authority imposing such Taxes. If, notwithstanding the efforts of such Issuer or Guarantor to obtain such receipts, the same are not obtainable, such Issuer or Guarantor will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee such information as may be reasonably available to such Issuer and the Guarantors (and not otherwise in the possession of the Trustee) to enable determination of the amount of any withholding Taxes attributable to any particular Holder(s).
(e) Whenever this Indenture or the Notes refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to a Guarantee), (c)such reference includes the payment of Additional Amounts, (d), (e), if applicable.
(f) This Section 4.12 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction (gother than the United States, any state thereof or the District of Columbia) abovein which any successor Person to any of the Issuers or Guarantors is organized, resident or doing business for tax purposes or any jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on the Notes (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to tax.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. If (a) The Company hereby agrees that any amounts to be paid by the Funding Note Certificate provide Company with respect to each Security shall be paid without deduction or withholding for any and all present and future taxes, levies, imposts or other governmental charges (“Taxes”) whatsoever imposed, assessed, levied or collected by or for the payment account of (i)(x) the Republic of Panama or any political subdivision or taxing authority thereof or (y) the jurisdiction of incorporation (other than the United States or any political subdivision or taxing authority thereof) of a successor corporation to the Company pursuant to Section 8.1, to the extent that such Taxes first become applicable as a result of the successor corporation becoming the obligor on the Securities, or (ii) any jurisdiction (other than the United States or any political subdivision or taxing authority thereof) from or through which any amount is paid by the Company hereunder or where it is resident or maintains a place of business or permanent establishment (each jurisdiction described in clauses (i) and (ii) above is referred to herein as a “Taxing Jurisdiction”), unless the withholding or deduction of such Tax is compelled by laws of the Republic of Panama or any other applicable Taxing Jurisdiction. If any deduction or withholding of any Taxes (other than Excluded Taxes, as defined below) is ever required by the Republic of Panama or any other Taxing Jurisdiction, the Company shall (subject to compliance by the Holder or beneficial owner of any Security with any relevant administrative requirements) pay such additional amounts (“Additional Amounts, Global Funding agrees ”) required to pay make the net amounts paid to the Holder of such Security or the Funding Note Trustee pursuant to the terms of the Indenture or the Securities, after such deduction or withholding, equal to the amounts of principal, premium, if any, interest, if any, and sinking fund or analogous payments, if any, to which such Holder or the Trustee is entitled. However, the Company shall not be required to pay Additional Amounts in respect of the following Taxes (“Excluded Taxes”):
(1) any present or future Taxes imposed, assessed, levied or collected as a result of the Holder or beneficial owner of a Security (i) being organized under the laws of, or otherwise being or having been a domiciliary, national or resident of, (ii) being engaged or having been engaged in a trade or business in, (iii) having or having had its principal office located in, (iv) maintaining or having maintained a permanent establishment in, (v) being or having been physically present in, or (vi) otherwise having or having had some connection (other than the connection arising from holding or owning such Security, or collecting principal and interest, if any, on, or the enforcement of, such Security) with the Republic of Panama or any other applicable Taxing Jurisdiction;
(2) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, such Security was presented more than thirty days after the date such payment became due or was provided for, whichever is later;
(3) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the failure to make any certification, identification or other report concerning the nationality, residence, identity or connection with the Republic of Panama or any other applicable Taxing Jurisdiction of the Holder or beneficial owner of such Security or claim for relief or exemption, if making such a certification, identification, other report or claim is, under the laws, rules or regulations of any such jurisdiction, a condition to relief or exemption from Taxes;
(4) any estate, inheritance, gift, sale, transfer, personal property or similar taxes or duty; or
(5) any combination of clauses (1), (2), (3) and (4) above; provided further, that no such Additional Amounts shall be payable in respect of any Security held by (x) any Holder or beneficial owner that is not the Funding Note Certificatesole beneficial owner of such Security, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner, partner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to such Additional Amounts had the beneficiary, settlor, beneficial owner, partner or member been the direct holder of such Security, (y) any Holder that is not a resident of the United States to the extent that, had such Holder been a resident of the United States and eligible (taking into account any applicable limitation on benefits article or similar provision) for the benefit of any double taxation treaty between the United States and the applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security, such Holder would not have been entitled to such Additional Amounts, or (z) any Holder that is a resident of the United States but that is not eligible for the benefit of any double taxation treaty between the United States, and the applicable Taxing Jurisdiction in relation to payments of amounts due under this Indenture and any Security (but only to the extent the amount of such deduction or withholding exceeds that which would have been required had such Holder of a Security been so eligible and made all relevant claims). The Company or any successor to the Company, as the case may be, shall indemnify and hold harmless each Holder of a Security and upon written request reimburse each Holder for the amount of (i) any Taxes levied or imposed by the Republic of Panama or any other applicable Taxing Jurisdiction and paid by such Holder of any Security (other than Excluded Taxes) as a result of payments made with respect to such Security, (ii) any liability (including penalties, interest and expenses) arising from or in connection with the levying or imposing of any Taxes (other than Excluded Taxes) by the Republic of Panama or any other applicable Taxing Jurisdiction with respect to any Security, and (iii) any Taxes (other than Excluded Taxes) levied or imposed by the Republic of Panama or any other applicable Taxing Jurisdiction with respect to payment of Additional Amounts or any reimbursement pursuant to this sentence, in each case, to the extent not otherwise reimbursed by the payment of any Additional Amount and not excluded from the requirement to pay Additional Amounts, as described above. The Company or any successor to the Company, as the case may be, shall also (i) make such withholding or deduction to the extent required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company or any successor to the Company, as the case may be, shall furnish the Trustee within 30 days after the date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or any successor to the Company, as the case may be, or other evidence of such payment reasonably satisfactory to the Trustee. It is understood, however, that the Trustee is under no obligation to request such certified copies of tax receipts evidencing the payment. At least 30 days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Company will be obligated to pay Additional Amounts with respect to such payments, the Company will deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, stating the amounts so payable and setting forth such other information as may be necessary to enable the Trustee to pay such Additional Amounts to Holders of the Securities on the payment date. Whenever in the Funding Note this Indenture or any Security there is mentioned, in any context, the payment of the principal ofprincipal, premium, if any, or interest, or sinking fund or analogous payment, if any, in respect of such Security or overdue principal or overdue interest or premium on, overdue sinking fund or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Noteanalogous payment, such reference mention shall be deemed to include reference to mention of the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture for herein to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, the provisions of this Section and express reference to the payment of Additional Amounts mention thereof in any provision of the Funding Note Indenture provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference mention is not mademade (if applicable). If The obligations of the Funding Note Certificate provides for Company (and any successor corporation to the Company pursuant to Section 8.1) under this Section 10.5 shall survive the termination of this Indenture and the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, all amounts under or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, respect to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;Securities.
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Each Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statuteSecurity, by regulation acceptance of such Security, agrees that, with reasonable promptness after receiving written notice from the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty Company to which the United States effect that such Holder is eligible for a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments refund in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election Taxes actually paid by the Company pursuant to this Section 10.5, such Holder of will sign and deliver, as reasonably directed by the Funding NoteCompany, any form provided to such Holder by the effect of which is Company to make payment enable such Holder to obtain a refund in respect of such Taxes; and if such Holder thereafter receives such refund in respect of such Taxes, such Holder will promptly pay such refund to the Funding Note subject Company (together with interest, if any, received by such Holder from the relevant taxing authority). If a Holder applies for a refund of such Taxes prior to United States Federal income tax a request by the Company to apply for such a refund, the Holder will, upon receipt of a request by the Company to apply for, or withholding tax provisions; or
to turn over the proceeds of, any such refund, pay any such refund to the Company (h) any combination of items (atogether with interest, if any, received by such Holder from the relevant taxing authority), (b), (c), (d), (e), (f) or (g) abovepromptly upon receipt of such refund. The Company shall pay all reasonable out-of-pocket expenses incurred by a Holder in connection with obtaining such refund.”
Appears in 1 contract
Additional Amounts. If the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay to the Holder (a) All payments made by or on behalf of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal ofIssuer under or with respect to a Note, or interest a Guarantor under or premium onwith respect to a Note Guarantee, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (hereinafter, “Taxes”), unless any such Taxes are required to be withheld or deducted under applicable law. If any Taxes imposed or levied on payments on the Funding Note by or on behalf of the government of The Netherlands or any governmental other jurisdiction in which the Issuer or any Guarantor is organized or is a resident or does business for tax purposes or within or through which payment is made by or on behalf of the Issuer or any Guarantor (including the jurisdiction of any Paying Agent) or any political subdivision or taxing authority in or agency thereof or therein (any of the United States having aforementioned being a “Taxing Jurisdiction”) will at any time be required to be withheld or deducted by any applicable withholding agent from any payment made under or with respect to a Note or a Note Guarantee, or if a beneficial owner actually pays any such Taxes where the power Issuer, Guarantor or any other applicable withholding agent has failed to taxwithhold or deduct Taxes required to be withheld or deducted from any payment made under or with respect to a Note or a Note Guarantee, the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holder each beneficial owner of the Funding Note, such Note after giving effect to such withholding or deduction, whether or not currently payable, will equal deduction by the amount that would have been received under the Funding Note were no applicable withholding agent of such Taxes (including any such deduction or withholding requiredof any Taxes in respect of such Additional Amounts) will not be less than the amount such beneficial owner would have received if such Taxes had not been required to be withheld or deducted; provided provided, however, that no notwithstanding the foregoing, Additional Amounts will not be paid:
(1) to the extent the Taxes giving rise to such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed imposed, deducted or withheld but for the existence of any present or former connection between the Holder or beneficial owner of a Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the Holder or beneficial owner of such Note, if the Holder or beneficial owner is an estate, nominee, trust, partnership or corporation) and the relevant Taxing Jurisdiction (other than the receipt of such payment or the acquisition, ownership, holding or disposition of, or the execution, delivery, registration or enforcement of, such Note or Note Guarantee);
(2) subject to subsection (e) of this Section 4.12, with respect to any estate, inheritance, gift, sales, transfer or similar tax;
(3) subject to subsection (e) of this Section 4.12, with respect to any Taxes payable otherwise than by deduction or withholding from payments under or with respect to such Note or Note Guarantee;
(4) to the extent such Taxes would not have been imposed, deducted or withheld if the Holder or beneficial owner of the Funding Note, Note or beneficial owner of any payment on such Note had (i) having any present or former connection with the United States, including, without limitation, being or having been made a citizen or resident thereofdeclaration of non-residence, or having been presentany other claim or filing for exemption, having been incorporated in, having engaged in a trade to which it is entitled or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, complied with (to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled extent legally eligible to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(bdo so) any taxcertification, dutyidentification, levyinformation, assessment documentation or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements requirement concerning the nationality, residence, identity or connection with the United States relevant Taxing Jurisdiction of the such Holder or beneficial owner of such Note or a Holder any payment on such Note (provided that (x) such declaration of the Funding Note, if nonresidence or other claim or filing for exemption or such compliance is required by statute, by regulation the applicable law of the United States Treasury DepartmentTaxing Jurisdiction as a precondition to exemption from, judicial or administrative interpretationreduction in the rate of the imposition, other law deduction or by an applicable income tax treaty withholding of, such Taxes and (y) at least 45 days prior to the first payment date with respect to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment declaration of nonresidence or other governmental chargeclaim or filing for exemption or such compliance is required under the applicable law of the Taxing Jurisdiction, the relevant Holder at that time has been notified in writing by the Issuer, any Guarantor or any other Person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption or such compliance is required to be made);
(d5) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of to the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that extent such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but imposed, deducted or withheld if the beneficiary of the payment had presented the Note for an election by payment within 30 days after the date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionssuch 30-day period); orand
(h6) any combination of items (a), 1) through (5) above. The foregoing provisions shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any successor Person to the Issuer or any Guarantor and any Taxing Jurisdiction with respect to any such Person.
(b)) The Issuer or the applicable Guarantor, if it is the applicable withholding agent, shall make any applicable withholding or deduction required by law and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Issuer or the applicable Guarantor shall furnish to the Trustee, within 30 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts or, if such tax receipts are not reasonably available to the Issuer or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Issuer or such Guarantor. Copies of such receipts or other documentation shall be made available by the Issuer to the Holders or the Paying Agent, as applicable, upon request.
(c)) At least 30 days prior to each date on which any payment under or with respect to any Notes is due and payable, if the Issuer or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer or such Guarantor shall deliver to the Trustee and the Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and shall set forth such other information necessary to enable the Paying Agents to pay such Additional Amounts to Holders of such Notes on the payment date. Notwithstanding the foregoing, if the obligation to pay Additional Amounts arises after the 30th day prior to any such date, the Issuer or the applicable Guarantor shall deliver to the Trustee and the Paying Agent an Officers’ Certificate as described in the preceding sentence and shall pay such Additional Amounts promptly after such obligation arises. The Trustee and the Paying Agent shall be entitled but shall not be obligated to rely on each Officers’ Certificate until receipt of a further Officers’ Certificate addressing such matters.
(d)) In addition to the foregoing, (e)the Issuer and the Guarantors shall pay any present or future stamp, (f) court or (g) abovedocumentary Taxes or any other excise, property or similar Taxes that arise in any Taxing Jurisdiction from the execution, issue, delivery, enforcement or registration of the Notes, this Indenture, any Guarantee or any other document or instrument in relation thereto, and the Issuer and the Guarantors shall indemnify the Holders of the Notes for any such Taxes paid by such Holders.
Appears in 1 contract
Sources: Indenture (LKQ Corp)
Additional Amounts. All payments made under or with respect to the Notes under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, 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 organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes,” unless the Issuer or any Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency provided, however, that in determining what withholding is required by law for U.S. federal income and withholding tax purposes, the Issuer and any Guarantor shall be entitled to treat any payments on or in respect of the Notes or any Note Guarantee as if the Notes or any Note Guarantee were issued by a U.S. person as defined in section 7701(a)(30) of the Code. If the Funding Issuer or any Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Certificate provide Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount — “Additional Amounts” — as may be necessary so that the net amount (including Additional Amounts) received by each Holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any Holder or beneficial owner to the extent such Taxes are imposed by reason of (i) its being or having been connected with a Relevant Taxing Jurisdiction, otherwise than by the acquisition, ownership, holding or disposition of the Notes, the enforcement of the rights under the Notes or under any Note Guarantee or the receipt of payments in respect of the Notes or any Note Guarantee, or (ii) such Holder or beneficial owner not cooperating with the Issuer or the Guarantors in completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer or the Guarantors to pay or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the 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 for purposes of this obligation to pay Additional Amounts, Global Funding agrees the Issuer and any Guarantor shall be entitled, for U.S. federal income and withholding tax purposes, to pay 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. B-4 Table of Contents Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed by the United States or any political subdivision or governmental authority thereof or therein on interest by reason of any Holder or beneficial owner holding or owning, 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 by the United States or any political subdivision or governmental authority thereof or therein on interest by reason of any Holder or beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Code with respect to the Holder Issuer or any Guarantor. The Issuer or Guarantor (as applicable) will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the Funding Note Additional Amounts payment by the Issuer or Guarantor (as provided applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Funding Note Certificate. Whenever in Indenture or the Funding Note Indenture Notes there is are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the principal ofIndenture or the Notes, or (3) interest or premium on, (4) any other amount payable on or in with respect of, the Funding Note or the net proceeds received on the sale or exchange to any of the Funding NoteNotes, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Issuer will pay any present stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in Luxembourg (or any political subdivision thereof pursuant to such termsor therein) from the execution, delivery and express reference to the payment registration of Additional Amounts in any provision Notes upon original issuance and initial resale of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not madeNotes or any other document or instrument referred to therein. If at any time the Funding Note Certificate provides for the payment Issuer changes its place of Additional Amountsorganization to outside of Luxembourg or there is a new issuer organized outside of Luxembourg, the Funding Note Certificate Issuer or new issuer, as applicable, will provide that Global Funding will paypay any stamp, court or documentary taxes, or cause to be paidany other excise, Additional Amounts to a Holder 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 Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments Notes in respect of the Funding Note;
(f) Notes or any taxother document or instrument referred to therein under any law, dutyrule or regulation in effect at the time of such change, levyor in connection with, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) enforcement of the Code for United States Federal income tax purposes provided that Notes or any such treatment was described in the Pricing Supplement;
(g) other document or instrument. The foregoing obligations will survive any taxtermination, duty, levy, assessment defeasance or other governmental charge that would not have been imposed but for an election by the Holder discharge of the Funding Note, Indenture. References in this section (“Additional Amounts”) to the effect of which is Issuer or Guarantor shall apply to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(hany successor(s) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovethereto.
Appears in 1 contract
Additional Amounts. All payments made under or with respect to the Notes under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the 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 a “Relevant Taxing Jurisdiction”), collectively, “Taxes,” unless the Issuer or any Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency provided, however, that in determining what withholding is required by law for U.S. federal income and withholding tax purposes, the Issuer and any Guarantor shall be entitled 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. If the Funding Issuer or any Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes, the Issuer or such Guarantor, as the case may be, will be required to pay such amount — “Additional Amounts” — as may be necessary so that the net amount (including Additional Amounts) received by each Holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any Holder or beneficial owner to the extent such Taxes are imposed by reason of (i) its being or having been connected with the Relevant Taxing Jurisdiction or any political subdivision or governmental authority thereof or therein having the power to tax, otherwise than by the acquisition, ownership, holding, disposition or enforcement of the Notes or the receipt of payments thereunder, or (ii) such Holder or beneficial owner not cooperating with the Issuer or the Guarantors in completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer or the Guarantors to pay or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of a Note Certificate provide a complete, correct and executed IRS Form W-8 or W-9 or successor form, as applicable, with all appropriate attachments); provided, however, that for purposes of this obligation to pay Additional Amounts, the Issuer and any Guarantor 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 shall be payable with respect to (i) any Tax imposed by the United States or any political subdivision or governmental authority thereof or therein on interest by reason of any Holder or beneficial owner holding or owning, actually or constructively, 10 percent or more of the total combined voting power of all classes of stock of the Issuer or any B-3 Guarantor entitled to vote or (ii) any Tax imposed by the United States or any political subdivision or governmental authority thereof or therein on interest by reason of any Holder or beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Code with respect to the Issuer or any Guarantor. The Issuer will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer will furnish to the Trustee, within 30 days after the date the payment of Additional Amountsany Taxes is due under applicable law, Global Funding agrees to pay to certified copies of tax receipts evidencing such payment by the Holder of the Funding Note Additional Amounts as provided Issuer. Wherever in the Funding Note Certificate. Whenever in Indenture or the Funding Note Indenture Notes there is are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the principal ofIndenture or the Notes, or (3) interest or premium on, (4) any other amount payable on or in with respect of, the Funding Note or the net proceeds received on the sale or exchange to any of the Funding NoteNotes, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Issuer will pay any present stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in Luxembourg (or any political subdivision thereof pursuant to such termsor therein) from the execution, delivery and express reference to the payment registration of Additional Amounts in any provision Notes upon original issuance and initial resale of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not madeNotes or any other document or instrument referred to therein. If at any time the Funding Note Certificate provides for the payment Issuer changes its place of Additional Amountsorganization to outside of Luxembourg or there is a new issuer organized outside of Luxembourg, the Funding Note Certificate Issuer or new issuer, as applicable, will provide that Global Funding will paypay any stamp, court or documentary taxes, or cause to be paidany other excise, Additional Amounts to a Holder 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 Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments Notes in respect of the Funding Note;
(f) Notes or any taxother document or instrument referred to therein under any law, dutyrule or regulation in effect at the time of such change, levyor in connection with, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) enforcement of the Code for United States Federal income tax purposes provided that Notes or any such treatment was described in the Pricing Supplement;
(g) other document or instrument. The foregoing obligations will survive any taxtermination, duty, levy, assessment defeasance or other governmental charge that would not have been imposed but for an election by the Holder discharge of the Funding Note, Indenture. References in this section (“Additional Amounts”) to the effect of which is Issuer or Guarantor shall apply to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(hany successor(s) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovethereto.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of the Company under or with respect to the Securities or by or on behalf of any Guarantor with respect to any 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 for, or on account of, such taxes is then required by law. If any deduction or withholding for, or on account of, any taxes imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor is then incorporated, organized or resident for tax purposes or any political subdivision thereof or therein (each, a “Tax Jurisdiction”) will at any time be required to be made from any payments made by or on behalf of the Company under or with respect to the Securities or by or on behalf of any Guarantor with respect to any Guarantee, including payments of principal, redemption price, purchase price, interest or premium, the Company 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 in respect of such payments by each Holder of Securities after such withholding or deduction (including any such withholding or deduction from such Additional Amounts) will equal the respective amounts that would have been received 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:
(i) any taxes, to the extent such taxes would not have been imposed but for the existence of any present or former connection between the Holder (or between a fiduciary, settler, beneficiary, member or shareholder of, or possessor of a power over, the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or the beneficial owner of the Securities and the relevant Tax Jurisdiction (other than the mere holding of such note, the enforcement of rights under such note or under a guarantee or the receipt of any payments in respect of such note or a guarantee), (including, without limitation, being or having been a citizen or a resident of such Tax Jurisdiction, being or having been engaged in a trade or business in such Tax Jurisdiction or having or having had a permanent establishment in such Tax Jurisdiction);
(ii) 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);
(iii) any estate, inheritance, gift, sales, transfer, stamp, personal property, excise, wealth or similar taxes;
(iv) taxes imposed on or with respect to a payment made to a Holder or beneficial owner of Securities who would have been able to avoid such withholding or deduction by presenting the relevant Securities to another Paying Agent;
(v) any taxes payable other than by deduction or withholding from payments under, or with respect to, the Securities or with respect to any Guarantee;
(vi) any U.S. taxes that are imposed as a result of the Holder or beneficial owner being or having been a controlled foreign corporation, personal holding company or passive foreign investment company with respect to the United States or a corporation that accumulates earnings to avoid United States federal income tax;
(vii) any U.S. taxes imposed on any person that is, for U.S. federal income tax purposes, an individual who is a citizen or resident of the United States, a corporation or partnership or other entity created or organized in or under the laws of the United States, any state thereof or the District of Columbia or any estate or trust the income of which is subject to U.S. federal income taxation regardless of its source;
(viii) any U.S. backup withholding taxes;
(ix) any U.S. taxes that are imposed as a result of the Holder or beneficial owner being or having been (i) a “10 per cent. shareholder” as defined in Section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”) or any successor provisions of the Code of the Company, (ii) a bank treated as receiving 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, or (iii) a controlled foreign corporation within the meaning of section 957 of the Code that is related within the meaning of section 864(d)(4) of the Code to the Company;
(x) any taxes (i) if the Holder or beneficial owner would not have been liable for or subject to withholding or deduction of such taxes had it delivered an appropriate, valid and properly completed, United States Internal Revenue Service Form W-8 or Form W-9 (or any successor or substitute form) to any withholding agent or any other person; or (ii) to the extent such taxes are imposed, withheld or deducted by reason of the failure of the Holder or beneficial owner of Securities to comply with any reasonable written request of the Company, addressed to the Holder and made at least 30 days before any such withholding or deduction is to be made, to satisfy any certification, identification, information or other reporting requirements, whether required by statute, 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);
(xi) any tax that is imposed on or with respect to any payment made to any Holder who is a fiduciary or partnership or an entity that is not the sole beneficial owner of such payment, to the extent that a beneficiary or settlor (for tax purposes) with respect to such fiduciary, a member of such 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 the applicable Securities; or
(xii) any combination of items (i) through (xi) above.
(b) Notwithstanding any other provision herein, any payments made by or on behalf of the Company under or with respect to the Securities or by or on behalf of any Guarantor with respect to any Guarantee, shall be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the Code, or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, regulations, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company or any Guarantor nor any other person shall be required to pay any Additional Amounts in respect of any FATCA Withholding.
(c) In addition to the foregoing, the Company and any Guarantor shall also pay and indemnify the Holders and/or the Trustee for any present or future stamp, issue, registration, transfer, court or documentary taxes or any other similar taxes, charges or levies (including penalties and interest with respect thereto), which are levied by any Tax Jurisdiction on the execution, delivery, issuance, registration or enforcement of any of the Securities, the Indenture or any Guarantee, except for any such taxes imposed or levied as a result of a transfer after the Issue Date.
(d) If the Funding Note Company or any Guarantor, as the case may be, becomes aware that it shall be obligated to pay Additional Amounts with respect to any payment under or with respect to the Securities or any Guarantee, the Company or the relevant Guarantor, as the case may be, shall deliver to the Trustee and 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 less than 30 days prior to that payment date, in which case the Company or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate provide for stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate shall also set forth any other information reasonably necessary to enable any Paying Agent to pay Additional Amounts to Holders on the relevant payment date. The Trustee and Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary.
(e) The Company or the relevant Guarantor shall make (or cause to be made) all withholdings and deductions for, or on account of, taxes required by law and will remit (or cause to be remitted) the full amount deducted or withheld to the relevant tax authority in accordance with applicable law. The Company or the relevant Guarantor shall use its reasonable efforts to obtain tax receipts from each tax authority evidencing the payment of Additional Amounts, Global Funding agrees to pay any taxes so deducted or withheld. The Company or the relevant Guarantor shall furnish to the Trustee (or to a Holder upon written request), within 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 the Funding Note Additional Amounts Company or the Guarantor, as provided in the Funding Note Certificate. case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments by such entity.
(f) Whenever in this Indenture or the Funding Note Indenture Securities, there is mentioned, in any context, the payment of amounts based upon the principal ofamount of the Securities or of principal, interest or any other amount payable under, or interest or premium onwith respect to, or in respect of, the Funding Note or the net proceeds received on the sale or exchange any of the Funding NoteSecurities or any Guarantee, such reference mention shall be deemed to include reference to mention of the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such termsthereof.
(g) The obligations described in this Section 4.10 shall survive any termination, and express reference to the payment of Additional Amounts in any provision defeasance or discharge of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note transfer by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of its Securities, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Funding NoteCompany or any Guarantor is then incorporated, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen organized or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent any political subdivision thereof or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code therein and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on such jurisdiction will be considered a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) aboveTax Jurisdiction.
Appears in 1 contract
Sources: Indenture (Amrize LTD)
Additional Amounts. If All payments by the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay to the Holder Company in respect of the Funding Note Additional Amounts as provided Notes or the Subsidiary Guarantors in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment respect of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guarantees shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any made without withholding or deduction for or on account of any present or future taxes, duties, leviesassessments, assessments or other governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority jurisdiction in which the United States Company or Subsidiary Guarantors are organized or are resident for tax purposes, or any other jurisdiction through which any payments under the Notes are made by or on behalf of the Company or the Subsidiary Guarantors, or any political subdivision thereof, having the power to taxtax (a “Relevant Jurisdiction”), unless the Company or the Subsidiary Guarantors are required by law to deduct or withhold such taxes, duties, assessments, or governmental charges. In such event, the Company or the Subsidiary Guarantors will make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental or other authority and pay such additional amounts as may be necessary to ensure that the net amount received amounts receivable by the Holder Holders of the Funding Note, Notes after giving effect to such withholding or deduction, whether or not currently payable, will deduction shall equal the amount that respective amounts of principal and interest which would have been received under receivable in respect of the Funding Note were no Notes in the absence of such withholding or deduction or withholding required; provided that (“Additional Amounts”). However, no such Additional Amounts shall be required for payable: • to, or to a third party on account behalf of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner who is liable for any present or future taxes, duties, assessments or governmental charges in respect of a Note by reason of the Funding Note, (i) having existence of any present or former connection with between such Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder of such holder or beneficial owner, if such Holder or beneficial owner is an estate, a trust, a partnership, a limited liability company or a corporation) and the United StatesRelevant 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, thereof or being or having been present, having been incorporated in, having engaged in a trade or business or having (present therein or having, or having had) , a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within other than the meaning of Section 957(a) mere holding of the Code related within Note or enforcement of rights and the meaning receipt of Section 864(d)(4) of the Code, payments with respect to the Funding Agreement Provider, Note; • in respect of Notes presented (iiiif presentation is required) being a bank for United States Federal income tax purposes whose receipt of interest on more than 30 days after the Funding Note is described in Section 881(c)(3)(ARelevant Date (as defined below) of except to the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by extent that the Holder of such Note would have been entitled to such Additional Amounts, on surrender of such Note for payment on the Funding Note;
(b) last day of such period of 30 days; • in respect of any tax, duty, levy, assessment or other governmental charge which imposed on a Note presented for payment by or on behalf of a Holder or beneficial owner who would not have been imposed but able to avoid that withholding or deduction by presenting the relevant Note to another paying agent in a member state of the European Union; • in relation with the application of Luxembourg law of December 23, 2005, as amended from time to time, introducing a 20% withholding tax on certain interest payments made for the presentation immediate benefit of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) individuals resident in Luxembourg; • in respect of any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely pursuant to Sections 1471 through 1474 of the Code, as of the date of this Indenture (or any amended or successor version), 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, any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code or any fiscal or governmental regulations, rules or practices adopted pursuant to such intergovernmental agreement; • to, or to a third party on behalf of, a Holder or beneficial owner who is liable for any present or future taxes, duties, assessments or other governmental charges by reason of the failure of the beneficial owner such Holder’s or a Holder of the Funding Note beneficial owner’s failure to comply with any certification, identification or information other reporting requirements requirement concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding NoteRelevant Jurisdiction, if (1) compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party Relevant Jurisdiction as a condition precondition to exemption from such from, or reduction in the rate of, the tax, duty, levy, assessment or other governmental charge;
charge and (d2) the Company has given at least 30 days’ notice that Holders or beneficial owners will be required to comply with such certification, identification or other requirement; • in respect of any estate, inheritance, gift, estate, personal property, sales, transfer transfer, capital gains, excise or personal property or similar tax, duty, levy, assessment, assessment or similar governmental charge;
(e) ; • in respect of any tax, duty, levy, assessment or other governmental charge that which is payable otherwise other than by deduction or withholding from payments of principal of or interest on the Note or by direct payment by the Company or the Subsidiary Guarantors in respect of claims made against the Funding Note;
(f) Company or the Subsidiary Guarantors; or • in respect of any taxcombination of the above. In addition, dutyno Additional Amounts shall be paid with respect to any payment on a Note to a Holder who is a fiduciary, levya partnership, assessment a limited liability company or other governmental charge imposed than the sole beneficial owner of that payment to the extent that payment would be required by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) laws of the Code for United States Federal income tax purposes provided that such treatment was described Relevant Jurisdiction to be included in the Pricing Supplement;
(g) any taxincome, dutyfor tax purposes, levyof a beneficiary or settlor with respect to the fiduciary, assessment a member of that partnership, an interest Holder in a limited liability company or other governmental charge that a beneficial owner who would not have been imposed but for an election by entitled to the Holder of Additional Amounts had that beneficiary, settlor, member or beneficial owner been the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) aboveHolder.
Appears in 1 contract
Sources: Indenture (Adecoagro S.A.)
Additional Amounts. If TRICOM and each Guarantor will indemnify and hold harmless the Funding Note Certificate provide for the payment of Additional AmountsDealer Manager in its capacity as dealer manager hereunder and, Global Funding agrees to pay subject to the Holder following exception, not in its capacity as a holder of Old Notes or New Notes, as applicable, (except that TRICOM shall indemnify the Funding Note Additional Amounts Dealer Manager in its capacity as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioneda holder of Old Notes or New Notes, in any contextas applicable, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent thatthat TRICOM indemnifies all holders of New Notes or Old Notes, as applicable) against any documentary, stamp, registration or other tax, charge, levy or other amounts imposed by the Dominican Republic, on or in such context, Additional Amounts are, were connection with the Exchange Offer Transactions or would the Exchange Offer Materials. All payments to be payable in respect thereof pursuant to such terms, and express reference made to the payment of Additional Amounts in Dealer Manager and other soliciting Dealers by TRICOM or any provision of the Funding Note Indenture Guarantor hereunder shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any made without withholding or deduction for or on account of any present or future taxes, duties, levies, assessments duties or governmental charges of whatever nature whatsoever imposed or levied on payments on the Funding Note by or on behalf of the Dominican Republic or any governmental political subdivision thereof (or any taxing authority therein) unless TRICOM or such Guarantor is compelled by law to deduct or withhold such taxes, duties or charges. In that event, TRICOM or any Guarantor shall pay such additional amounts as may be necessary in the United States having the power to tax, so order that the net amount amounts received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will deduction shall equal the amount amounts that would have been received under the Funding Note were if no such withholding or deduction or withholding requiredhad been made; provided PROVIDED HOWEVER, that no such Additional Amounts additional amounts shall be required for or on account of:
payable (ai) in respect of any tax, duty, levy, assessment duty or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election the existence of any present or former connection between the Dealer Manager and the relevant taxing jurisdiction, other than by the Holder of the Funding Noteentering into or performing this Agreement, the effect of which is to make payment and (ii) in respect of any tax, duty or governmental charge that would not have been imposed but for the Funding Note subject failure of the Dealer Manager to United States Federal income tax comply with any certification, identification, documentation or information or other reporting requirement if such compliance is required by law, regulation, administrative practice or applicable treaty as a precondition to or exemption from or reduction in the rate of deduction or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovesuch taxes.
Appears in 1 contract
Additional Amounts. All payments made by the Company or any Guarantor under or with respect to the Notes or any Guarantee will be made free and clear of and without withholding or deduction for, or on account of, any present or future Taxes, unless the Company or a Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If the Funding Note Certificate provide Company or any Guarantor (or any other applicable withholding agent) is required to withhold or deduct any amount for, or on account of, any Taxes imposed or levied by or on behalf of (a) the government of Canada or any province or territory thereof, (b) any jurisdiction in which the Company or any Guarantor is incorporated, organized, resident or doing business for tax purposes or (c) any jurisdiction from or through which any payment is made by or on behalf of the Company or any Guarantor (including the jurisdiction of any Paying Agent) or, in each case, a political subdivision thereof or therein (each of (a), (b) and (c) a “Relevant Taxing Jurisdiction”) in respect of any payment made under or with respect to the Notes or any Guarantee, (a) the Company, the Guarantor or the applicable withholding agent will make such withholding or deduction, (b) the Company, the Guarantor or the applicable withholding agent will remit the full amount deducted or withheld to the relevant government authority in accordance with and in the time required under applicable law and (c) the Company or the applicable Guarantor will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each beneficial owner of Notes after such withholding or deduction (including any deduction or withholding in respect of Additional Amounts) will equal the amount such beneficial owner would have received if such Taxes had not been withheld or deducted; provided, Global Funding agrees to pay however, that no Additional Amounts will be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have been imposed but for the existence of any present or former connection between the Holder or beneficial owner of Notes and the Relevant Taxing Jurisdiction (including such Holder or beneficial owner being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, the Relevant Taxing Jurisdiction) other than a connection arising solely from the acquisition, ownership, holding or disposition of such Note, the enforcement of such Note or any Guarantee, or the receipt of payments in respect of such Note or any Guarantee;
(2) any Taxes, to the extent such Taxes are imposed or withheld by reason of the Holder’s or beneficial owner’s failure to satisfy any certification, identification or other reporting requirements, whether imposed by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, which are necessary to enable the Company or a Guarantor to make payments on the Notes without deduction or withholding for Taxes; provided, however, that the Company has delivered a written request to such Holder or beneficial owner to comply with such requirements at least 30 days prior to the date by which such compliance is required and such Holder or beneficial owner can legally comply with such requirements;
(3) any Taxes, to the extent such Taxes would not have been imposed if the presentation of a Note (where presentation is required) for payment had occurred within 30 days after the date such payment was due and payable or was duly provided for, whichever is later, but only to the extent such Additional Amounts would not have been required had the Note been presented on the last day of the applicable 30 day period;
(4) any Taxes that are imposed on or with respect to any payment made to any Holder who is a fiduciary or partnership or other person that is not the sole beneficial owner of such payment, to the extent that a beneficiary or settlor (for tax purposes) with respect to such fiduciary, a member of such 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 the Funding Note Additional Amounts applicable Note;
(5) any Canadian Taxes, to the extent such Taxes would not have been imposed but for the fact that the Holder or beneficial owner does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) with the Company or a Guarantor;
(6) any estate, inheritance, gift, sales, transfer or similar Tax;
(7) any Taxes that are payable other than by deduction or withholding from payments under or with respect to the Notes or any Guarantee;
(8) any Taxes imposed pursuant to Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code;
(9) any combination of the items (1) through (8) above. Each of the Company and the Guarantors will, jointly and severally, indemnify and hold harmless each Holder and beneficial owner of Notes for (x) any Taxes levied by a Relevant Taxing Jurisdiction (other than Taxes excluded by clauses (1) through (9) above) and paid by each such Holder or beneficial owner as provided a result of payments made under or with respect to such Notes or Guarantee, and (y) any Taxes (other than Taxes excluded by clauses (1) through (9) above) so levied or imposed with respect to any indemnification payments under the foregoing clause (x) or this clause (y) such that the net amount received by such Holder or beneficial owner after such indemnification payments will not be less than the net amount the Holder or beneficial owner would have received if the Taxes described in the Funding Note Certificateclauses (x) and (y) above had not been imposed. Whenever in the Funding Note Indenture there is mentionedmentioned in this Indenture, in any context, the payment of the principal ofprincipal, or premium (if any), Redemption Price, interest or premium on, of any other amount payable under or in with respect of, to the Funding Note Notes or the net proceeds received on the sale or exchange of the Funding Noteany Guarantee, such reference mention shall be deemed to include reference to mention of the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference thereof. The Company or the relevant Guarantor will provide to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, Trustee (or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Noteupon written request), (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 60 days after the date on which the payment of any Taxes giving rise to Additional Amounts is due, receipts or, if receipts are not available, other documentation reasonably satisfactory to the Trustee evidencing payment by the Company or such payment becomes due Guarantor of such Taxes. The Company and payable the Guarantors 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 Relevant Taxing Jurisdiction from the execution, delivery, issuance or registration or enforcement of the Notes, this Indenture, any Guarantee or any other document or instrument referred to therein, or the date on which payment is duly provided for, whichever occurs later;
receipt of any payments under or with respect to the Notes or any Guarantee (c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a“Documentary Taxes”), (b), (c), (d), (e), (f) or (g) above.
Appears in 1 contract
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder of Notes or that the Funding Note Additional Amounts as provided in Guarantors make under or with respect to the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guarantees shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments on the Funding Note by or on behalf of any jurisdiction (other than the United States, any state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, resident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the Paying Agent) makes any payment on the Notes or by or within any department, political subdivision or governmental authority of or in any of the United States foregoing having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless such Issuer or Guarantor or other applicable withholding agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If either Issuer, a Guarantor or other applicable withholding agent is required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Guarantee, such Issuer or Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder each beneficial owner of the Funding Note, Notes after giving effect to such withholding or deduction, whether deduction (including any withholding or deduction in respect of any Additional Amounts) will not currently payable, will equal be less than the amount that the beneficial owner would have received if such Taxes had not been received under withheld or deducted.
(b) None of the Funding Note were no such deduction Issuers or withholding required; provided that no such Guarantors shall, however, pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes, duty, levy, assessment to the extent such Taxes are imposed or other governmental charge imposed which would not have been imposed but for levied by a Holder Relevant Taxing Jurisdiction by reason of the Holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with such Relevant Taxing Jurisdiction (other than the United Statesmere receipt, includingownership, without limitation, being holding or having been a citizen or resident thereofdisposition of the Notes, or having been presentby reason of the receipt of any payments in respect of any Notes or any Guarantee, having been incorporated in, having engaged in a trade or business the exercise or having (enforcement of rights under any Notes or having had) a permanent establishment or principal office therein, any Guarantee);
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any Taxes to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which extent such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is Taxes are imposed or withheld solely by reason of the failure of the Holder or beneficial owner or a Holder of the Funding Note Notes, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification identification, information or information other reporting requirements concerning (to the nationality, residence, identity extent such holder or connection with the United States of the beneficial owner or a Holder of the Funding Noteis legally eligible to do so), if compliance is whether required by statute, by treaty, regulation of the United States Treasury Department, judicial or administrative interpretationpractice of a Relevant Taxing Jurisdiction, other law or by an applicable income tax treaty to which the United States is a party as a condition precondition to exemption from from, or reduction in the rate of deduction or withholding of, such taxTaxes imposed by the Relevant Taxing Jurisdiction (including, dutywithout limitation, levy, assessment a certification that the Holder or other governmental chargebeneficial owner is not resident in the Relevant Taxing Jurisdiction);
(diii) any estate, inheritance, gift, estatesales, transfer, personal property, sales, transfer property or similar tax, duty, levy, assessment, or similar governmental chargeTaxes;
(eiv) any tax, duty, levy, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding from payments in made under or with respect of to the Funding NoteNotes or any Guarantee;
(fv) any tax, duty, levy, assessment Tax imposed on or other governmental charge imposed with respect to any payment by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) any of the Code for United States Federal income tax purposes provided Issuers or Guarantors 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 such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but on such payment had such beneficial owner been the holder of such Note;
(vi) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for an election by payment (where presentation is required) more than 30 days after the relevant payment is first made available 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);
(viii) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Funding NoteInternal Revenue Code of 1986 as of the Issue Date (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 or other official administrative interpretations thereof and any agreements entered into pursuant to current Section
(1) of the effect Internal Revenue Code of which is to make payment 1986 as of the Issue Date (or any amended or successor version described above), and including (for the avoidance of doubt) any intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionsforegoing; or
(hix) any combination of items the foregoing.
(ac) The Issuers and the Guarantors, if the applicable withholding agents, shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or any Guarantee is due and payable, if the Issuers or any Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or any Guarantee is due and payable, in which case it will be promptly thereafter), the Issuers shall deliver to the Trustee, with a copy to the Paying Agent, an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including, without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (bi) the execution, issue, delivery or registration of the Notes or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, the Notes or any Guarantee. Upon written request, any of the Issuers or a Guarantor will furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02, in such form as provided in the normal course by the taxing authority imposing such Taxes. If, notwithstanding the efforts of such Issuer or Guarantor to obtain such receipts, the same are not obtainable, such Issuer or Guarantor will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee such information as may be reasonably available to such Issuer and the Guarantors (and not otherwise in the possession of the Trustee) to enable determination of the amount of any withholding Taxes attributable to any particular Holder(s).
(e) Whenever this Indenture or the Notes refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to a Guarantee), (c)such reference includes the payment of Additional Amounts, (d), (e), if applicable.
(f) This Section 4.12 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction (gother than the United States, any state thereof or the District of Columbia) above.in which any successor Person to any of the Issuers or Guarantors is organized, resident or doing business for tax purposes or any jurisdiction from or through which any such person (or
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. If (a) All payments by the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay to the Holder Company in respect of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal Notes shall be made free and clear of, and without deduction or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, leviesassessments, assessments or other governmental charges of whatever nature imposed or levied on payments on by the Funding Note by or on behalf authorities of any jurisdiction (Withholding Taxes), unless the Company is compelled by law to deduct or withhold such taxes, duties, assessments, or governmental charges. In such event, the Company shall make such deduction or withholding, make payment of the amount so deducted or withheld to the appropriate governmental authority in the United States having the power and forthwith pay such additional amounts (Additional Amounts) as may be necessary to tax, so ensure that the net amount received amounts receivable by the Holder holders of the Funding Note, Notes after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided shall equal the payment which would have been receivable in respect of the Notes in the absence of such deduction or withholding. The Company shall cause to be delivered, or, in the case of notes held by an institution that is holding the Notes on behalf of a beneficial owner, to use its best efforts to cause the institution to deliver, to the Paying Agent all forms necessary to ensure that a minimal rate of withholding applies to all payments by the Company in respect of the Notes to the holders or beneficial holders of the Notes, such as an IRS Form W-8IMY and any attached IRS Form W-8BEN, or a statement of withholding or allocation, as necessary. Notwithstanding the foregoing, no such Additional Amounts shall be required for or on account of:
payable: (ai) any tax, duty, levy, assessment or other governmental charge imposed which if such Withholding Taxes would not have been imposed but for (A) a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with between the United States, jurisdiction imposing the tax or any political subdivision or taxing authority thereof or therein and the holder or beneficial holder of the relevant Note including, without limitation, being a connection arising from such holder or beneficial holder having been a citizen citizen, domiciliary, or resident thereofof such jurisdiction or such political subdivision or taxing authority, being organized in such jurisdiction or such political subdivision or taxing authority, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) had a permanent establishment establishment, branch or principal office thereinother fixed place of business therein (but excluding a connection arising solely from such holder or beneficial holder having executed, (ii) being a controlled foreign corporation within delivered, performed its obligations or received payment under the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the CodeFiscal Agency Agreement or this Note), to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (vB) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the holder or beneficial owner or a Holder holder of the Funding relevant Note to comply with any reasonable certification, identification or information other reporting requirements requirement (or such certifications, identifications or reporting proving to be false or incorrect) concerning the nationality, residence, identity or connection with the United States such jurisdiction, or any political subdivision or taxing authority thereof or therein, of the such holder or beneficial owner or a Holder of the Funding Noteholder, if compliance is required by statutesuch jurisdiction, by regulation of the United States Treasury Departmentor any political subdivision or taxing authority thereof or therein, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition precondition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax deduction or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
Appears in 1 contract
Sources: Fiscal Agency Agreement (Thirty Eight Hundred Fund LLC)
Additional Amounts. All payments made under or with respect to the Notes under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, 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 organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes,” unless the Issuer or any Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency provided, however, that in determining what withholding is required by law for U.S. federal income and withholding tax purposes, the Issuer and any Guarantor shall be entitled to treat any payments on or in respect of the Notes or any Note Guarantee as if the Notes or any Note Guarantee were issued by a U.S. person as defined in section 7701(a)(30) of the Code. If the Funding Issuer or any Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Certificate provide Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount — “Additional Amounts” — as may be necessary so that the net amount (including Additional Amounts) received by each Holder after such withholding or deduction (including B-4 any withholding or deduction on such Additional Amounts) will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any Holder or beneficial owner to the extent such Taxes are imposed by reason of (i) such Holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, otherwise than by the acquisition, ownership, holding or disposition of the Notes, the enforcement of rights under the Notes or under any Note Guarantee or the receipt of payments in respect of the Notes or any Note Guarantee, or (ii) such Holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer or the Guarantors to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the 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 for purposes of this obligation to pay Additional Amounts, Global Funding agrees the Issuer and any Guarantor shall be entitled, for U.S. federal income and withholding tax purposes, to pay 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 shall be payable with respect to (i) any Tax imposed by the United States or any political subdivision or governmental authority thereof or therein on interest by reason of any Holder or beneficial owner holding or owning, 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 by the United States or any political subdivision or governmental authority thereof or therein on interest by reason of any Holder or beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Code with respect to the Holder Issuer or any Guarantor. The Issuer or Guarantor (as applicable) will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the Funding Note Additional Amounts payment by the Issuer or Guarantor (as provided applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Funding Indenture or the Notes or any Note Certificate. Whenever in the Funding Note Indenture Guarantee there is are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the principal ofIndenture or the Notes, or (3) interest or premium on, (4) any other amount payable on or in with respect of, the Funding Note or the net proceeds received on the sale or exchange to any of the Funding NoteNotes or any Note Guarantee, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Issuer will pay any present stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in Luxembourg or any political subdivision thereof pursuant to such termsor therein, from the execution, delivery and express reference to the payment registration of Additional Amounts in any provision Notes upon original issuance and initial resale of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will payNotes or any other document or instrument referred to therein, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United Statesenforcement 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 Luxembourg or there is a new issuer organized outside of Luxembourg, includingthe Issuer or new issuer, without limitationas applicable, being will pay any stamp, court or having been a citizen or resident thereofdocumentary taxes, or having been presentany other excise, having been incorporated inproperty or simi- B-5 lar taxes, having engaged charges or levies (including any penalties, interest or other liabilities related thereto) which arise in a trade the jurisdiction in which the Issuer or business or having new issuer is organized (or having hadany political subdivision thereof or therein) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within and are payable by the meaning of Section 957(a) Holders of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments Notes in respect of the Funding Note;
(f) Notes or any taxother document or instrument referred to therein under any law, dutyrule or regulation in effect at the time of such change. The foregoing obligations will survive any termination, levy, assessment defeasance or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) discharge of the Code for United States Federal income tax purposes provided that such treatment was described Indenture. References in this section (“Additional Amounts”) to the Pricing Supplement;
(gIssuer or Guarantor shall apply to any successor(s) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovethereto.
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Additional Amounts. (a) All payments made by or on behalf of the Issuer under or with respect to the Notes (including any payments by a Subsidiary Guarantor) shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or on behalf of the Government of Canada or any province or territory thereof or by any authority or agency therein or thereof having power to tax or any other jurisdiction in which the Issuer or any Subsidiary Guarantor is organized, or is otherwise carrying on business in, or is otherwise resident for tax purposes, or any jurisdiction from or through which payment is made, excluding the United States (each a “Relevant Taxing Jurisdiction”) unless the Issuer or any Subsidiary Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Funding Note Certificate provide Issuer or any Subsidiary Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, the Issuer or such Subsidiary Guarantor shall be required to pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by a holder or beneficial owner of Notes (including Additional Amounts) after such withholding or deduction shall not be less than the amount such holder would have received if such Taxes including Taxes or Additional Amounts had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts to a Holder (such Holder, an “Excluded Holder”) does not apply with respect to: (1) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the relevant holder or beneficial owner, if the relevant holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (other than a connection from the mere acquisition, ownership or holding of such notes or a beneficial interest therein or the enforcement of rights thereunder or the receipt of payment in respect thereof); (2) Canadian withholding taxes imposed on any payment made to any holder or beneficial owner of Additional Amountsthe Notes with which the Issuer does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) at the time of making such payments; (3) any estate, Global Funding agrees inheritance, gift, sales, excise, transfer, use, personal property tax or similar tax, assessment or governmental charge; (4) any Taxes payable otherwise than by deduction or withholding from payments on the Notes; (5) any Taxes imposed because the relevant holder or beneficial owner of the Note fails to pay complete, execute and deliver any form or document to the Holder extent applicable to such holder or beneficial owner that may be required by law or by reason of administration of such law to enable the Issuer or any Subsidiary Guarantor to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a lesser amount; (6) any Taxes that would not have been imposed if the holder or beneficiary of the Funding payment had presented the Note for payment within 30 days after the date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period); (7) any Taxes that were imposed with respect to any payment on a Note to any holder who is a fiduciary partnership, limited liability company 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 limited liability company 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; or (8) any withholdings or deductions imposed on a payment to an individual that are required to be made pursuant to the European Union 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 (9) any Taxes that would not have been imposed but for a combination of the foregoing.
(c) The Issuer or such Subsidiary Guarantor shall pay the amount withheld or deducted to the relevant governmental authority on a timely basis in accordance with applicable law. As soon as provided in practicable, the Funding Note Certificate. Whenever in Issuer shall provide the Funding Note Indenture there is mentioned, in any context, Trustee with official receipts or other documentation evidencing the payment of the principal ofTaxes with respect to which Additional Amounts are paid.
(d) If the Issuer or any Subsidiary Guarantor is or shall become obligated to pay Additional Amounts under or with respect to any payment made on any of the Notes or a Note Guarantee, at least 30 days prior to the date of such payment (unless such obligation to pay Additional Amounts arises shortly before or interest or premium onafter the 30th day prior to such date, or in respect ofwhich case it shall be promptly thereafter), the Funding Note Issuer or such Subsidiary Guarantor, as the net proceeds received case may be, shall deliver to the Trustee an officer’s certificate stating the fact that Additional Amounts shall be payable and the amount so payable and such other information necessary to enable the Paying Agent to remit Additional Amounts to holders on the sale relevant payment date.
(e) Whenever in this Indenture there is mentioned in any context: (1) the payment of principal; (2) redemption prices or exchange purchase prices in connection with a redemption or repurchase of Notes; (3) interest; or (4) any other amount payable on or with respect to any of the Funding NoteNotes or any Note Guarantee, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture as described under this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof thereof.
(f) The Issuer and the Subsidiary Guarantors shall indemnify a holder or beneficial owner of notes (other than an Excluded Holder) for the full amount of any Taxes (including for greater certainty, Taxes payable pursuant to such terms, and express reference Section 803 of the regulation to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where Income Tax Act (Canada)) paid by such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts holder to a Holder governmental authority of a Relevant Taxing Jurisdiction, on or with respect to any payment by the Funding Note to compensate for Issuer or any withholding or deduction for or Subsidiary Guarantor on account of failure to satisfy any obligation of the Issuer or any Subsidiary Guarantor to withhold or deduct Taxes for which the Issuer or such Subsidiary Guarantor would have been obliged to pay Additional Amounts hereunder.
(g) The Issuer shall pay any present or future stamp, court or documentary taxes or any other excise or property taxes, dutiescharges or similar levies that arise in any Relevant Taxing Jurisdiction from the execution, leviesdelivery, assessments enforcement or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder registration of the Funding NoteNotes, after giving effect to such withholding this Indenture or deduction, whether any other document or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident instrument in relation thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning receipt of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any payments with respect to the Funding Agreement Provider, Notes (iii) being including any payments by a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; orSubsidiary Guarantor).
(h) The obligations described in this Section 2.13 shall survive any combination termination, defeasance or discharge of items (a), (b), (c), (d), (e), (f) or (g) abovethis Indenture.
Appears in 1 contract
Additional Amounts. If the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay All payments made under or with respect to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note Notes or the net proceeds received on the sale or exchange of the Funding Note, such reference Guarantees shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental jurisdiction in which the Issuer or any Guarantor is organized, engaged in business or resident for tax purposes or from or through which payment on the Notes is made or any political subdivision or authority in the United States thereof or therein having the power to taxtax (each, a “Relevant Taxing Jurisdiction”) and any interest, penalties and other liabilities with respect thereto (collectively, “Taxes”), unless the withholding or deduction of such Taxes is required by law or by the relevant taxing authority’s interpretation or administration thereof. In the event that the Issuer or a Guarantor is required to so withhold or deduct any amount for or on account of any such Taxes from any payment made under or with respect to the Notes, the Issuer or Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the each Holder of the Funding Note, Notes (including Additional Amounts) after giving effect to such withholding or deduction, whether or deduction shall be not currently payable, will equal less than the amount that such Holder would have received if such Taxes had not been received under required to be withheld or deducted. Notwithstanding the Funding Note were no such deduction or withholding required; provided that no such foregoing, neither the Issuer nor any Guarantor shall pay Additional Amounts shall be required for to a Holder or beneficial owner of any Note in respect or on account of:
(a) any taxTaxes that are imposed or levied by a Relevant Taxing Jurisdiction by reason of the Holder’s (or, dutyif applicable, levyits partner’s, assessment or other governmental charge imposed which would not have been imposed but for a Holder its shareholder’s or beneficial owner of the Funding Note, (iowner’s) having any present or former connection with the United States, such Relevant Taxing Jurisdiction (including, without limitationbut not limited to, being or having been a citizen or resident thereofcitizenship, nationality, residence, domicile, or having been presentexistence of a business, having been incorporated ina permanent establishment, having engaged in a trade or dependent agent, a place of business or having (a place of management present or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation deemed present within the meaning Relevant Taxing Jurisdiction) other than the mere receipt or holding of Section 957(a) any Note or by reason of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated payments thereunder or (v) being subject to backup withholding as the exercise or enforcement of rights under this Note, any Guarantee or the date of the purchase by the Holder of the Funding NoteIndenture;
(b) any taxTaxes that are imposed or withheld by reason of the failure of the Holder or beneficial owner of any Note, dutyprior to the relevant date on which a payment under and with respect to the Notes is due and payable (the “Relevant Payment Date”), levyto comply with the Issuer’s written request addressed to the Holder at least 30 calendar days prior to the Relevant Payment Date to provide accurate information with respect to any certification, assessment identification, information or other governmental charge reporting requirements concerning nationality, residence, identity or connection with the Relevant Taxing Jurisdiction which the Holder or such beneficial owner is legally required to satisfy, whether imposed by statute, treaty, regulation or administrative practice, in each such case by the Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(c) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(d) any Tax that is payable other than by deduction or withholding from payments made under or with respect to any Note or Guarantee;
(e) any Tax which would not have been so imposed but for the presentation of any Funding Note (where presentation is requiredrequired in order to receive payment) by the Holder or beneficial owner of a Note for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment except to the extent that the Holder or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of would have been entitled to such Additional Amounts on presenting the Funding Note to comply with certification, identification or information reporting requirements concerning same for payment on any day (including the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from last day) within such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note30-day period;
(f) any tax, duty, levy, assessment withholding or other governmental charge deduction in respect of any Taxes where such withholding or deduction is imposed by reason of payments on a payment to an individual and is required to be made pursuant to the Funding Note being treated as contingent interest described in Section 871(h)(4) European Council Directive 2003/48/EC or any Directive otherwise implementing the conclusions of the Code for United States Federal income tax purposes provided that ECOFIN Council meetings of 26 and 27 November 2000 or any law implementing or complying with, or introduced in order to conform to, any such treatment was described in the Pricing SupplementDirective;
(g) any tax, duty, levy, assessment Tax that is imposed on or other governmental charge that with respect to a payment made to a Holder or beneficial owner who would not have been imposed but able to avoid such withholding or deduction by requesting that a payment on the Note be made by, or presenting a Note for a payment to, another Paying Agent in an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; orEU Member State;
(h) any Tax that is imposed on or with respect to any payment made to any Holder who is a fiduciary or partnership or an entity that is not the sole beneficial owner of such payment, to the extent that a beneficiary or settlor (for tax purposes) with respect to such fiduciary, a member of such 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; or
(i) any withholding or deduction required to be made from a payment pursuant to sections 1471-1474 of the U.S. Internal Revenue Code, as of the issue date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) (the “Code”), any current or future regulations or official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to section 1471(b)(1) of the Code. In addition, Additional Amounts shall not be payable with respect to any Taxes that are imposed in respect of any combination of items the above items. The Issuer or Guarantor shall also make or cause to be made such withholding or deduction of Taxes and remit the full amount of Taxes so deducted or withheld to the relevant taxing authority in accordance with all applicable laws. The Issuer shall, upon request, make available to the Holders, within 30 days after the date on which the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Issuer or if, notwithstanding the Issuer’s reasonable efforts to obtain such receipts, the same are not obtainable, other evidence reasonably satisfactory to the Trustee of such payment by the Issuer. At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Issuer or a Guarantor shall be obliged to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it shall be promptly thereafter), the Issuer or Guarantor shall deliver to the Trustee an Officers’ Certificate stating that such Additional Amounts shall be payable and the amounts so payable and setting forth such other information as is necessary to enable the Trustee or Paying Agents to pay such Additional Amounts to the Holders and beneficial owners on the payment date. The Trustee shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary. In addition, the Issuer or the Guarantor shall pay: (i) any present or future stamp, issue, registration, transfer, documentation, court, excise or property taxes or other similar taxes, charges and duties, including interest, penalties and Additional Amounts with respect thereto imposed or levied by any Relevant Taxing Jurisdiction, in respect of the execution, issue, delivery or registration of the Notes, the Indenture or the Guarantees, or any other document or instrument referred to thereunder (other than transfers of the Notes following the initial resale of the Notes by the initial purchasers of the Notes); (ii) any such taxes, charges or duties imposed by any Relevant Taxing Jurisdiction as a result of, or in connection with, the enforcement of the Notes, Guarantees or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes; and (iii) any stamp, court or documentary taxes (or similar charges or levies) imposed by any Relevant Taxing Jurisdiction with respect to the receipt of any payments with respect to the Notes or the Guarantees (limited to any such taxes (or similar charges or levies) that are not excluded under clauses (a), (b), ) through (c), (d), (e), (f) or (ge) abovethrough (i) above or any combination thereof). The foregoing provisions shall survive any termination, defeasance or discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction in which any Surviving Entity (as defined below) or successor person to the Issuer or a Guarantor is organized, engaged in business or resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein. Whenever in the Indenture there is mentioned, in any context, the payment of principal (and premiums, if any), Redemption Price, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to any Guarantee), such mention shall be deemed to include mention of the payment of Additional Amounts.
Appears in 1 contract
Sources: Indenture (InterXion Holding N.V.)
Additional Amounts. If At least 10 days prior to the Funding Note first date on which payment of principal, premium, if any, or interest on the Notes is to be made, and at least 10 days prior to any subsequent such date if there has been any change with respect to the matters set forth in the Officers' Certificate provide described in Section 4.20 of the Indenture, the Issuer will furnish the Book-Entry Depositary with an Officers' Certificate specifying whether such payment of principal, premium, if any, or interest on the Notes and under the Subsidiary Guarantee shall be made without withholding or deduction for, or on account of, any Taxes and the amount, if any, required to be withheld on such payments and the amount, if any, of additional amounts payable, net of amounts to which the Depositaries or owner of Book-Entry Interests is not entitled. The Book-Entry Depositary shall have no responsibility for determining whether a Depositary or any owner of a Book-Entry Interest is entitled to the payment of Additional Amounts, Global Funding agrees but shall be entitled to rely conclusively for this purpose on the Officers' Certificate or on certifications from any Depositary. The Issuer shall, prior to the date on which the Book-Entry Depositary is required to make such payment, pay to the Holder of the Funding Note Book-Entry Depositary amounts equal to any Additional Amounts as provided payable on such date by the Book-Entry Depositary under this Agreement. The Issuer shall indemnify the Book-Entry Depositary for, and hold it harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in the Funding Note connection with actions taken or omitted by it in reliance on any Officers' Certificate furnished to them pursuant to this Section 2.15 or failure to furnish any such Officers' Certificate. Whenever in Notwithstanding anything to the Funding Note Indenture there is mentioned, in any contextcontrary provided above, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Book-Entry Depositary shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, pay or cause to be paid, paid Additional Amounts to a Holder only out of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so funds that the net amount shall be received by it from the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable Issuer or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge Subsidiary Guarantor for that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.purpose. ARTICLE THREE THE BOOK-ENTRY DEPOSITARY AND THE NOTE CUSTODIAN
Appears in 1 contract
Sources: Deposit and Custody Agreement (MDCP Acquisitions I)
Additional Amounts. If All payments made by the Funding Note Certificate provide for Issuer and the payment of Additional Amounts, Global Funding agrees to pay Guarantors under or with respect to the Holder Notes and the Guarantees will be made free and clear of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment, or other governmental charges charge of whatever nature (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied on payments on the Funding Note by or on behalf of any governmental government or political subdivision or territory or possession of any government or authority in the United States or agency or authority therein or thereof having the power to taxtax (each, a “Taxing Authority”) in any jurisdiction in which the Issuer or any Guarantor (including their permitted successors and assigns) is then incorporated, engaged in business or resident for tax purposes or any jurisdiction by or through which payment is made (each, a “Relevant Taxing Jurisdiction”) unless the Issuer or the Guarantor is required to withhold or deduct Taxes by Law or by the relevant Taxing Authority’s interpretation or administration thereof. If the Issuer or the Guarantor is required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or the Guarantees (as the case may be), the Issuer or the Guarantors (as the case may be) will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder of the Notes (including Additional Amounts) after such withholding or deduction will be equal to the amount the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that Notes would have received if such Taxes had not been received under the Funding Note were no such deduction withheld or withholding requireddeducted; provided that no such Additional Amounts shall will be required for or on account ofpayable with respect to a payment made to a Holder of the Notes (an “Excluded Holder”) to the extent:
(a1) any tax, duty, levy, assessment or other governmental charge imposed which such Taxes would not have been imposed but for a Holder or beneficial owner the existence of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the between such Holder of the Funding Note;Notes and the Relevant Taxing Jurisdiction imposing such Taxes otherwise than merely by the acquisition, ownership or disposition of such Note or receiving any payment in respect thereof or the exercise or enforcement of any rights under the Notes or the Guarantees; or
(2) such Holder of the Notes would not have been liable for or subject to such withholding or deduction on account of such Taxes but for the failure to make a valid declaration of non-residence or similar claim for exemption or to provide information concerning nationality, residence or connection with the Relevant Taxing Jurisdiction if:
(a) the making of such declaration or claim or provision of such information is required or imposed by statute, treaty, regulation, ruling or administrative practice of a Taxing Authority of the Relevant Taxing Jurisdiction as a pre-condition to an exemption from, or reduction in, such Taxes; and
(b) at least 60 days prior to the first payment date with respect to which the Issuer or the Guarantors shall apply this clause (2), the Issuer and the Guarantors shall have notified that Holder of the Notes in writing that they shall be required to provide such declaration, claim or information; or
(3) such Holder of the Notes would have been able to avoid such Taxes by presenting the relevant Note to another Paying Agent in a member state of the European Union (as constituted on the Issue Date) or in the United States; or
(4) any tax, duty, levy, assessment or other governmental charge which such Taxes would not have been imposed but for the presentation by the Holder of any Funding such Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes became due and or payable or the date on which payment is was duly provided for, whichever occurs is later;; or
(c5) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of 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 Directive; or
(6) of any combination of the immediately preceding clauses (1) to (5) (inclusive). In addition, Additional Amounts will not be payable with respect to any estate, inheritance, gift, sales, transfer, personal property or any similar tax, duty, levy, assessment or other governmental charge with respect to such Notes or with respect to any Tax which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by deduction or withholding from payments of principal of, premium or discount, if any, or interest on the Notes. The Issuer or the Guarantors (as the case may be) will also (1) make any required withholding or deduction; and (2) remit the full amount deducted or withheld to the relevant Taxing Authority in accordance with applicable Law. The Issuer or the Guarantors (as the case may be) will make reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Issuer or the Guarantors (as the case may be) will use reasonable efforts to furnish to the Holders of the Notes (with a copy to the Trustee), within 30 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable Law, either certified copies of tax receipts evidencing such payment by the Issuer or the Guarantors (as the case may be) or, if such receipts are not obtainable, other evidence of such payments by the Issuer or the Guarantors (as the case may be). At least 30 days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Issuer or the Guarantors (as the case may be) will be obliged to pay Additional Amounts with respect to such payment, the Issuer or the Guarantors (as the case may be) will deliver to the Trustee and the Principal Paying Agent 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 Agent on behalf of the Trustee to pay such Additional Amounts to the Holders on the payment date. Whenever in this Indenture there is mentioned, in any context, the payment of amounts based upon the principal, premium, interest or of any other amount payable under, or with respect to, any 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. The Issuer or the Guarantors (as the case may be) will pay any stamp, transfer, court or documentary taxes, or any other excise or property taxes, charges or similar levies which arise from the original execution, delivery or registration of the Funding Note;
(f) any taxNotes, duty, levy, assessment or other governmental charge imposed the initial resale thereof by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) initial purchasers and the enforcement of the Code for United States Federal income tax purposes provided that such treatment was described in Notes, the Pricing Supplement;
(g) Guarantees or the Note Security Documents following the occurrence of any taxEvent of Default with respect to the Notes. The foregoing provisions shall survive any termination, duty, levy, assessment defeasance or other governmental charge that would not have been imposed but for an election by the Holder discharge of the Funding NoteNotes and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer or the Guarantor, as the effect of which case may be, is to make payment organized, engaged in respect of the Funding Note business, resident for tax purposes, or otherwise subject to United States Federal taxation on a net income tax basis or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) political sub-divisions or (g) aboveTaxing Authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Inmarsat Launch CO LTD)
Additional Amounts. (a) If the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature and any related interest, surcharges or penalties with respect thereto (“Taxes”) are imposed or levied on payments on the Funding Note by or on behalf of a Relevant Tax Jurisdiction on Purchaser or payments made by Shareholder to Purchaser under this Agreement, including, but not limited to, deliveries of ADSs or other Exchange Property under this Agreement, Shareholder will reimburse Purchaser for such additional amounts (the “Additional Amounts”) as will be necessary (including after the imposition or levy of Taxes on any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required by the Relevant Tax Jurisdiction) in order that the amount available to Purchaser for distribution to holders and beneficial owners of the Trust Securities is no less than the amount Purchaser would have had available for distribution to holders and beneficial owners of the Trust Securities in the absence of such imposition or on account of:levy of Taxes by the Relevant Tax Jurisdiction.
(ab) Shareholder will (i) pay, and (where applicable) reimburse Purchaser for any tax, duty, levy, assessment Documentary Taxes imposed by any tax jurisdiction on the receipt of ADSs or other governmental charge imposed Exchange Property by Purchaser and (ii) reimburse Purchaser for any Documentary Taxes for which would not have been imposed but for Purchaser is obligated to reimburse a Holder holder or beneficial owner of a Trust Security under Section 3.5 of the Funding NoteTrust Agreement.
(c) Subject to Section 6.8(d), the applicable party shall remit the full amount of Taxes imposed or levied to the applicable tax jurisdiction in accordance with Applicable Law. Such party shall provide certified copies of tax receipts from such tax jurisdiction evidencing the payment of such Taxes, or if such tax receipts are not available, certified copies or other reasonable evidence of such payments as soon as reasonably practicable to Shareholder or Purchaser, as applicable. Such copies shall be made available to the holders and beneficial owners of Trust Securities upon reasonable request and will be made available at the offices of the Paying Agent.
(d) Purchaser shall not withhold, deduct or pay any amounts that would obligate Shareholder to reimburse Purchaser pursuant to Section 6.8(a) or (b) and would result in a Triggering Shareholder Reimbursement Obligation unless (i) having Purchaser receives a notice from any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereofGovernmental Body that such Governmental Body intends to imminently commence, or having been presenthas commenced, having been incorporated inenforcement or collection proceedings against Purchaser with respect to such amounts, having engaged in a trade including placing any lien on, or business other financial impairment of, this Agreement or having (or having had) a permanent establishment or principal office thereinany other property held by Purchaser, (ii) being Purchaser receives a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, Tax Opinion reasonably acceptable to Shareholder to the Funding Agreement Providereffect that such withholding, deduction or payment should be required under Applicable Law, (iii) being there is a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the CodeFinal Determination with respect to such withholding, deduction or payment, or (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled Shareholder consents to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any taxsuch withholding, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessmentdeduction, or similar governmental charge;payment.
(e) If Purchaser withholds, deducts or pays (or is obligated to withhold, deduct or pay) any taxamounts that obligate Shareholder to reimburse Purchaser pursuant to Section 6.8(a) or (b), dutyShareholder shall satisfy any such reimbursement obligation no later than the later of (i) ten (10) Business Days after Shareholder is notified that such withholding, levy, assessment deduction or other governmental charge payment is permitted pursuant to Section 6.8(d) or (ii) five (5) Business Days prior to the due date for such reimbursable Taxes. Purchaser shall return to Shareholder any amounts paid under Section 6.8(a) or (b) that is payable otherwise than by withholding from payments are not paid to (or are refunded by) the applicable Governmental Body. Shareholder will have the right to pursue a refund claim in respect of the Funding Note;any amounts that are paid by Purchaser under Section 6.8(a) or (b).
(f) The foregoing obligations will survive any taxtermination or discharge of this Agreement or the Trust Securities, dutyany transfer by a holder or beneficial owner of Trust Securities, levyand, assessment or other governmental charge imposed by reason in addition to the Cayman Islands and the People’s Republic of payments on China, will apply mutatis mutandis to any jurisdiction in which any successor to the Funding Note being treated as contingent interest described Company is organized, engaged in Section 871(h)(4) of the Code business for United States Federal income tax purposes or otherwise resident for tax purposes, or any political subdivision or taxing authority or agency thereof or therein, and any such jurisdiction thereafter will be included in the definition of “Relevant Tax Jurisdiction”; provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment no event shall Additional Amounts be payable in respect of Taxes, other than Documentary Taxes, imposed by the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) political subdivision or (g) abovetaxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Forward Purchase Agreement (Mandatory Exchangeable Trust)
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder of Notes or that the Funding Note Additional Amounts as provided in Guarantors make under or with respect to the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guarantees shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments on the Funding Note by or on behalf of any jurisdiction (other than the United States, any state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, resident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the Paying Agent) makes any payment on this Note or by or within any department or political subdivision or governmental authority of or in any of the United States foregoing having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless such Issuer or Guarantor or other applicable withholding agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If an Issuer, Guarantor or other applicable withholding agent is required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to this Note or any Guarantee, such Issuer or Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder each beneficial owner of the Funding NoteNotes, after giving effect to such withholding or deduction, whether deduction (including any withholding or deduction in respect of any Additional Amounts) will not currently payable, will equal be less than the amount that the beneficial owner would have received if such Taxes had not been received under withheld or deducted.
(b) None of the Funding Note were no such deduction Issuers or withholding required; provided that no such Guarantors will, however, pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes, duty, levy, assessment to the extent such Taxes are imposed or other governmental charge imposed which would not have been imposed but for levied by a Holder Relevant Taxing Jurisdiction by reason of the Holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with such Relevant Taxing Jurisdiction (other than the United Statesmere receipt, includingownership, without limitation, being holding or having been a citizen or resident thereofdisposition of this Note, or having been presentby reason of the receipt of any payments in respect of any Notes or any Guarantee, having been incorporated in, having engaged in a trade or business the exercise or having (enforcement of rights under any Notes or having had) a permanent establishment or principal office therein, any Guarantee);
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any Taxes to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which extent such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is Taxes are imposed or withheld solely by reason of the failure of the Holder or beneficial owner of this Note, following the Issuers’ written request addressed to the Holder or a Holder of the Funding Note beneficial owner, to comply with any certification, identification identification, information or information other reporting requirements concerning (to the nationality, residence, identity extent such holder or connection with the United States of the beneficial owner or a Holder of the Funding Noteis legally eligible to do so), if compliance is whether required by statute, by treaty, regulation of the United States Treasury Department, judicial or administrative interpretationpractice of a Relevant Taxing Jurisdiction, other law or by an applicable income tax treaty to which the United States is a party as a condition precondition to exemption from from, or reduction in the rate of deduction or withholding of, such taxTaxes imposed by the Relevant Taxing Jurisdiction (including, dutywithout limitation, levy, assessment a certification that the Holder or other governmental chargebeneficial owner is not resident in the Relevant Taxing Jurisdiction);
(diii) any estate, inheritance, gift, estatesales, transfer, personal property, sales, transfer property or similar tax, duty, levy, assessment, or similar governmental chargeTaxes;
(eiv) any tax, duty, levy, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding from payments in made under or with respect of the Funding Noteto this Note or any Guarantee;
(fv) any tax, duty, levy, assessment Tax imposed on or other governmental charge imposed with respect to any payment by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) any of the Code for United States Federal income tax purposes provided Issuers or Guarantors 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 such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but on such payment had such beneficial owner been the holder of such Note;
(vi) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for an election by payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had this Note been presented on the last day of such 30-day period);
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the Funding NoteECOFIN Council meetings of November 26 and 27, 2000 on the effect taxation of which savings income or any law implementing or complying with, or introduced in order to conform to, any such Directive;
(ix) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or any amended or successor version that is substantively comparable and not materially more onerous to make payment comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 1471(b)(1) of the Internal Revenue Code of 1986 as of the Issue Date (or any amended or successor version described above), and including (for the avoidance of doubt) any intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionsforegoing; or
(hx) any combination of items the foregoing.
(ac) The Issuers and the Guarantors, if the applicable withholding agent, shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to this Note or any Guarantee is due and payable, if the Issuers or any Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to this Note or any Guarantee is due and payable, in which case it will be promptly thereafter), the Issuers shall deliver to the Trustee, with a copy to the Paying Agent, an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 of the Indenture stating that such Additional Amounts will be payable and describing its obligations to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (bi) the execution, issue, delivery or registration of this Note or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, this Note or any Guarantee. Upon written request, any of the Issuers or a Guarantor will furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or such Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02 of the Indenture, in such form as provided in the normal course by the taxing authority imposing such Taxes. If, notwithstanding the efforts of such Issuer or Guarantor to obtain such receipts, the same are not obtainable, such Issuer or such Guarantor will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee such information as may be reasonably available to such Issuers and the Guarantors (and not otherwise in the possession of the Trustee) to enable the determination of the amount of any withholding taxes attributable to any particular Holder(s).
(e) Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to this or any other Note (including payments thereof made pursuant to a Guarantee), (c)such reference includes the payment of Additional Amounts, (d), (e), if applicable.
(f) The preceding provisions will survive any termination, defeasance or discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction (gother than the United States, any state thereof or the District of Columbia) abovein which any successor Person to any of the Issuers or Guarantors is organized, resident or doing business for tax purposes or any jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on this or any other Note (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to tax.
Appears in 1 contract
Additional Amounts. If (a) All payments by or on behalf of the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuer under or with respect to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note Notes or the net proceeds received on the sale Guarantors make under or exchange of the Funding Note, such reference shall be deemed to include reference with respect to the payment Note Guarantees will be made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments on the Funding Note by or on behalf of any jurisdiction in which the Issuer or any Guarantor is incorporated or otherwise resident for tax purposes or from or through which any of the foregoing makes any payment on the Notes or by or within any political subdivision or governmental authority of or in any of the United States foregoing having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless the Issuer or such Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction is required to be withheld or deducted from any payment made by or on behalf of the Issuer or the Guarantors under or with respect to the Notes or any Note Guarantee, the Issuer or the Guarantor, as the case may be, will pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder each holder of the Funding Note, Notes after giving effect to such withholding or deduction, whether deduction (including any withholding or deduction in respect of any Additional Amounts) will not currently payable, will equal be less than the amount that the holder would have received if such Taxes had not been received under withheld or deducted. Notwithstanding the Funding Note were no such deduction or withholding required; provided that no such foregoing, neither the Issuer nor any Guarantor will, however, pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes, duty, levy, assessment to the extent such Taxes are imposed or other governmental charge imposed which would not have been imposed but for levied by a Holder Relevant Taxing Jurisdiction by reason of the holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with the United Statessuch Relevant Taxing Jurisdiction, including, without limitation, being the holder or having been a citizen or resident thereofbeneficial owner being, or having been presentbeen, a citizen, national, or resident, being, or having been incorporated inbeen, having engaged in a trade or business business, being, or having (been, physically present in or having had) or having had a permanent establishment in a Relevant Taxing Jurisdiction (but not including, in each case, any connection arising from the mere receipt, ownership, holding or principal office thereindisposition of Notes, or by reason of the receipt of any payments in respect of any Note or any Note Guarantee, or the exercise or enforcement of rights under any Notes or any Note Guarantee);
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any Taxes to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which extent such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is Taxes are imposed or withheld solely by reason of the failure of the holder or beneficial owner of Notes, following the Issuer’s or a Holder of Guarantor’s written request addressed to the Funding Note holder or beneficial owner with reasonable prior notice (and, in any event, at least 60 days before the relevant deduction or withholding would be made), to comply with any certification, identification identification, information or information other reporting requirements concerning (to the nationality, residence, identity extent such holder or connection with the United States of the beneficial owner or a Holder of the Funding Noteis legally eligible to do so), if compliance is whether required by statute, by treaty, regulation of the United States Treasury Department, judicial or administrative interpretationpractice of a Relevant Taxing Jurisdiction, other law or by an applicable income tax treaty to which the United States is a party as a condition precondition to exemption from such taxfrom, dutyor reduction in the rate of deduction or withholding of, levyTaxes imposed by the Relevant Taxing Jurisdiction (including, assessment without limitation, a certification that the holder or other governmental chargebeneficial owner, as appropriate, is not resident in the Relevant Taxing Jurisdiction);
(diii) any estate, inheritance, gift, estatesales, transfer, personal property, sales, transfer property or similar tax, duty, levy, assessment, or similar governmental chargeTaxes;
(eiv) any tax, duty, levy, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding from payments in made under or with respect of to the Funding NoteNotes or any Note Guarantee;
(fv) any taxTax imposed on or with respect to any payment by the Issuer or Guarantor to the holder if such holder is a fiduciary, duty, levy, assessment partnership or any other governmental charge imposed by reason person other than the sole beneficial owner of payments on such payment to the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided extent that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but for an election on such payment had such holder been the sole beneficial owner of such Note;
(vi) any Tax that is imposed on or with respect to a payment made to a holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the Holder relevant Notes to another paying agent in a member state of the Funding NoteEuropean Union;
(vii) any Taxes, to the effect extent such Taxes were imposed as a result of which the presentation of a Note for payment (where presentation is required in order to make receive payment) more than 30 days after the relevant payment is first made available 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);
(viii) 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 Directive implementing the Funding Note subject conclusions of the ECOFIN Council meetings of November 26 and 27, 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to United States Federal income tax or withholding tax provisionsconform to, any such Directive; or
(hix) any combination of items (ai) through (viii) above. The Issuer or the relevant Guarantors, as the case may be, will (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law.
(b) In addition, the Issuer or the Guarantors (as the case may be) will pay any present or future stamp, issue, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including without limitation, interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the execution, issue, delivery or registration of the Notes, any Note Guarantee, this Indenture or any other document or instrument referred to thereunder, or the receipt of any payments with respect thereto (other than on or in connection with a transfer of the Notes other than the initial resale by the Initial Purchasers).
(c) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or any Note Guarantee is due and payable, if the Issuer or a Guarantor will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 45th day prior to the date on which payment under or with respect to the Notes or any Note Guarantee is due and payable, in which case it will be promptly thereafter), the Issuer or the relevant Guarantor (bas the case may be) will deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to holders on the payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuer or the relevant Guarantor (as the case may be) will promptly publish a notice in accordance with the provisions set forth in Sections 3.03 and 12.01 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts.
(d) Upon written request, the Issuer or a Guarantor (as the case may be) will make reasonable efforts to furnish to the Trustee within a reasonable time certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Sections 3.03 and 12.01, in such form as provided in the normal course by the taxing authority imposing such Taxes and as is reasonably available to the Issuer or such Guarantor. If, notwithstanding the efforts of the Issuer or Guarantor to obtain such receipts, the same are not obtainable, the Issuer or such Guarantor will provide the Trustee with other evidence reasonably satisfactory to the Trustee of such payments by the Issuer or Guarantor.
(e) Whenever this Indenture refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to a Note Guarantee), (c)such reference includes the payment of Additional Amounts, (d), (e), if applicable.
(f) The preceding provisions will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor person to the Issuer or any Guarantor is incorporated or otherwise resident for tax purposes or any jurisdiction from or through which such person makes any payment on the Note (gor any Note Guarantee) aboveand any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Elster Group SE)
Additional Amounts. If the Funding Note Certificate provide for the payment of Additional AmountsIssuers (or a Guarantor, Global Funding agrees if any) or other applicable withholding agent is required by law to deduct or withhold taxes imposed by Bermuda, Ireland or another Relevant Tax Jurisdiction on payments to Holders, it will pay to any Holder so entitled all additional amounts that may be necessary so that every Net Payment of interest, principal, premium or other amount received by the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding beneficial owner on that Note or the net proceeds received Note Guarantee will not be less than the amount provided for in that Note or the Note Guarantee.
(a) The Issuers (and Guarantors, if any) will also indemnify and reimburse Holders for:
(1) Taxes (including any interest, penalties and related expenses) imposed on the sale Holders (or exchange if a Holder is not the beneficial owner, the beneficial owner) by a Relevant Tax Jurisdiction if and to the same extent that a Holder would have been entitled to receive additional amounts if the Issuers (or a Guarantor) or other applicable withholding agent had been required to deduct or withhold those taxes from payments on the Notes or the Note Guarantees; and
(2) Stamp, court, issue, registration, documentary or similar taxes or charges (including any interest, penalties and related expenses) imposed by a Relevant Tax Jurisdiction in connection with the execution, delivery, enforcement or registration of the Funding Note, such reference shall be deemed Notes or the Note Guarantees or other related documents and obligations.
(b) The Issuers (or a Guarantor) will not pay additional amounts to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account offollowing:
(a1) any Any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for solely because at any time there is or was a connection between such Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of or possessor of power over the Funding Noterelevant Holder if the Holder is an estate, (i) having any present or former connection with the United Statesnominee, includingtrust, without limitationpartnership, being or having been a citizen or resident thereoflimited liability company, or having been present, having been incorporated in, having engaged in corporation) and the Relevant Tax Jurisdiction imposing the tax (other than any connection arising as a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning result of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on a payment or the Funding acquisition, ownership, disposition or holding of, or enforcement of rights under, a Note is described in Section 881(c)(3)(A) of or the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding NoteNote Guarantees);
(b2) Any estate, inheritance, gift or any similar tax, duty, levyassessment or other governmental charge;
(3) Any tax, assessment or other governmental charge which would imposed solely because such Holder (or if such Holder is not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of owner, the Funding Note beneficial owner) fails to comply with any certification, identification or information other reporting requirements requirement concerning the nationality, residence, identity or connection with the United States taxing jurisdiction of such Holder or any beneficial owner of the beneficial owner Note or a Holder of the Funding NoteNote Guarantees, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States jurisdiction imposing the tax is a party party, as a condition precondition to an exemption from such the tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge for which such Holder is eligible and the Issuers (or a Guarantor) have given the Holders at least 60 days’ written notice that is payable otherwise than by withholding from payments in respect of the Funding Note;Holders will be required to provide such information and identification; and
(f4) any Any tax, duty, levy, assessment or other governmental charge imposed by reason of payments with respect to a Note or a Note Guarantee presented for payment more than 30 days after the date on which payment became due and payable or the Funding Note being treated as contingent interest described in Section 871(h)(4) of date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the Code for United States Federal income tax purposes provided extent that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, Note would have been entitled to additional amounts on presenting the effect of which is to make Note for payment in respect of on any date during the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above30-day period.
Appears in 1 contract
Sources: Indenture (Aircastle LTD)
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuer makes under or with respect to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in Notes or that any context, the payment of the principal of, Subsidiary Guarantor makes under or interest or premium on, or in with respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference to its Guarantee shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on payments on the Funding Note by or on behalf of any governmental authority jurisdiction in which the United States Issuer, the Subsidiary Guarantor or any Surviving Entity is incorporated, organized, engaged in business (where such Tax is imposed by reason of the Issuer, Subsidiary Guarantor, or Surviving Entity being engaged in business) or otherwise resident for tax purposes or from or through which any of the foregoing makes any payment on the Notes or by or within any department or political subdivision thereof having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless the Issuer or such Subsidiary Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If the Issuer or any Subsidiary Guarantor is required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, the Issuer or such Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the each Holder of the Funding Note, Notes (including Additional Amounts) after giving effect to such withholding or deduction, whether or deduction will be not currently payable, will equal less than the amount that the Holder would have received if such Taxes had not been received under required to be withheld or deducted.
(b) Neither the Funding Note were no such deduction or withholding required; provided that no such Issuer nor any Subsidiary Guarantor will, however, pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes that are imposed or levied by a Relevant Taxing Jurisdiction by reason of a present or former connection of a Holder (or a fiduciary, dutysettlor, levybeneficiary, assessment member or shareholder of, or possessor of a power over, such Holder, if the Holder is an estate, a trust, a partnership or a corporation) or a beneficial owner with such Relevant Taxing Jurisdiction (other governmental charge than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes or this Indenture);
(ii) any Taxes that are imposed which would not have been imposed but for a or levied by reason of the failure of the Holder or beneficial owner of Notes, following the Funding NoteIssuer’s written request addressed to the Holder (and made at a time which would enable the Holder or beneficial owner acting reasonably to comply with that request), to comply with any certification, identification, information or other reporting requirements which the Holder or such beneficial owner is legally required to satisfy, whether imposed by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (i) having any present or former connection with the United States, including, without limitation, being a certification that the Holder or having been a citizen or beneficial owner is not resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, Relevant Taxing Jurisdiction);
(iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Codeany estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) being an actual any Tax which is payable otherwise than by deduction or constructive owner of 10 percent withholding from payments made under or more of with respect to the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or Notes;
(v) being subject to backup withholding as any Tax that is imposed or levied by reason of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is requiredrequired in order to receive payment) of such Notes for payment on a date more than 30 days after the date on which such payment becomes became due and payable or the date on which payment thereof is duly provided for, whichever occurs 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;
(vi) any Tax imposed on or with respect to any payment by the Issuer or any Subsidiary 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 a beneficiary or settlor with respect to such fiduciary member of such partnership or the beneficial owner of such payment would not have been entitled to Additional Amounts had such beneficiary, settlor, member of beneficial owner been the actual Holder of such Note;
(vii) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union;
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26–27, 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of the above.
(c) The Issuer and any tax, duty, levy, assessment Subsidiary Guarantor will (i) make such withholding or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance deduction as is required by statute, by regulation of applicable law and (ii) remit the United States Treasury Department, judicial full amount deducted or administrative interpretation, other law or by an withheld to the relevant taxing authority in the Relevant Taxing Jurisdiction in accordance with applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;law.
(d) At least 30 calendar days prior to each date on which any inheritancepayment under or with respect to the Notes is due and payable, giftif the Issuer or any Subsidiary Guarantor will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, estatein which case it will be promptly thereafter), personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;the Issuer will deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date. The Issuer will promptly publish a notice in accordance with the provisions set forth in Section 13.02 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts.
(e) Upon request, the Issuer or the Subsidiary Guarantors shall furnish to the Trustee or the Holder copies of tax receipts evidencing the payment of any taxTaxes by the Issuer or the applicable Subsidiary Guarantor in such form as provided in the normal course by the taxing authority imposing such Taxes and as is reasonably available to the Issuer or the applicable Subsidiary Guarantor. If notwithstanding the efforts of the Issuer or the Subsidiary Guarantors to obtain such receipts, dutythe same are not obtainable, levythe Issuer or the applicable Subsidiary Guarantor will provide the Trustee or such Holder other evidence satisfactory to the Trustee or the Holder of such payments by the Issuer or the applicable Subsidiary Guarantor.
(f) In addition, assessment the Issuer and the Subsidiary Guarantors shall pay any present or future stamp, issue, registration, documentation, excise or property taxes or other governmental charge that is payable otherwise than similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by withholding from payments any Relevant Taxing Jurisdiction in respect of the Funding Note;
execution, issue, delivery or registration of the Notes or any other document or instrument referred to thereunder (fother than in respect of the execution, issue, delivery or registration of Notes pursuant to Section 2.06, Section 2.07 or Section 2.10(a)(iv)) and any taxsuch taxes, duty, levy, assessment charges or other governmental charge duties imposed by reason of payments on any jurisdiction as a result of, or in connection with, the Funding Note being treated as contingent interest described in Section 871(h)(4) enforcement of the Code Notes and/or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes, and the Issuer and each Subsidiary Guarantor shall agree to indemnify the Holders for United States Federal income tax purposes provided that any such treatment was described in the Pricing Supplement;taxes paid by such Holders.
(g) The obligations under this Section 4.17 shall apply mutatis mutandis to any taxjurisdiction in which any Surviving Entity or successor person to the Issuer is incorporated, dutyorganized, levyengaged in business or otherwise resident for tax purposes, assessment or any political subdivision or taxing authority thereof or therein. Whenever this Indenture refers to, in any context, the payment of principal, premium, if any, interest or any other governmental charge that would not have been imposed but for an election by the Holder of the Funding amount payable under or with respect to any Note, such reference includes the effect payment of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a)Additional Amounts, (b), (c), (d), (e), (f) or (g) aboveif applicable.
Appears in 1 contract
Additional Amounts. (a) All payments made under or with respect to the Debentures and the Debenture Guarantee shall be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter "Taxes") imposed or levied by or on behalf of a Relevant Taxing Jurisdiction, unless the Company or the Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Funding Note Certificate Company or the Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Debentures or the Debenture Guarantee, the Company or the Guarantor shall pay such additional amounts ("Additional Amounts") as may be necessary so that the net amount received by the holders (including Additional Amounts) after such withholding or deduction will not be less than the amount the holders would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to (i) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the relevant holder, if the relevant holder is an estate, nominee, trust or corporation) and the Relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership or holding outside of the Relevant Taxing Jurisdiction of such Debentures); or (ii) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; nor shall the Company or the Guarantor be required to pay Additional Amounts (1) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Debenture for payment within 30 days after the date on which such payment or such Debentures became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder would have been entitled to Additional Amounts had the Debentures been presented on the last day of such 30 day period), or (2) with respect to any payment of principal of (or premium, if any, on) or interest on such Debentures 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 Debentures.
(c) Upon request, the Company or the Guarantor shall provide for the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of Additional Amounts, Global Funding agrees the Taxes with respect to pay to the Holder of the Funding Note which Additional Amounts as provided in the Funding Note Certificate. are paid.
(d) Whenever in the Funding Note this Indenture there is mentioned, in any context, : (i) the payment of the principal of, principal; (ii) purchase prices in connection with a purchase of Debentures; (iii) interest; or interest (iv) any other amount payable on or premium on, or in with respect of, the Funding Note or the net proceeds received on the sale or exchange to any of the Funding NoteDebentures, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture for in this Section 4.10 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to thereof.
(e) The Company or the payment of Additional Amounts in any provision of the Funding Note Indenture Guarantor shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of pay any present or future stamp, court or documentary taxes or any other excise or property taxes, dutiescharges or similar levies that arise in any jurisdiction from the execution, leviesdelivery, assessments enforcement or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder registration of the Funding NoteDebentures, after giving effect to such withholding the Debenture Guarantee, this Indenture or deduction, whether any other document or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident instrument in relation thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning receipt of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any payments with respect to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable Debentures or the date on which payment is duly provided forDebenture Guarantee, whichever occurs later;
(c) excluding such taxes, charges or similar levies imposed by any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation jurisdiction outside of the United States Treasury DepartmentKingdom, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) jurisdiction of incorporation of any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect successor of the Funding Note;Company or any jurisdiction in which a paying agent is located, and we will agree to indemnify the holders for any such taxes paid by such holders.
(f) The obligations described under this Section 4.10 shall survive any taxtermination, duty, levy, assessment defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Company is organized or any political subdivision or taxing authority or agency thereof or therein (other governmental charge imposed by reason of payments on than the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) or any tax, duty, levy, assessment political subdivision or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (ataxing authority thereof), (b), (c), (d), (e), (f) or (g) above.
Appears in 1 contract
Sources: Indenture (Millennium Chemicals Inc)
Additional Amounts. All payments made under or with respect to the Notes under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, 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 organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes,” unless the Issuer or any Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency provided, however, that in determining what withholding is required by law for U.S. federal income and withholding tax purposes, the Issuer and any Guarantor shall be entitled to treat any payments on or in respect of the Notes or any Note Guarantee as if the Notes or any Note Guarantee were issued by a U.S. person as defined in section 7701(a)(30) of the Code. If the Funding Issuer or any Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Certificate provide Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount — “Additional Amounts” — as may be necessary so that the net amount (including Additional Amounts) received by each Holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any Holder or beneficial owner to the extent such Taxes are imposed by reason of (i) its being or having been connected with a Relevant Taxing Jurisdiction, otherwise than by the acquisition, ownership, holding or disposition of the Notes, the enforcement of the rights under the Notes or under any Note Guarantee or the receipt of payments in respect of the Notes or any Note Guarantee, or (ii) such Holder or beneficial owner not cooperating with the Issuer or the Guarantors in completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer or the Guarantors to pay or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the 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 for purposes of this obligation to pay Additional Amounts, Global Funding agrees the Issuer and any Guarantor shall be entitled, for U.S. federal income and withholding tax purposes, to pay 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. A-4 Table of Contents Further, no Additional Amounts shall be payable with respect to (i) any Tax imposed by the United States or any political subdivision or governmental authority thereof or therein on interest by reason of any Holder or beneficial owner holding or owning, 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 by the United States or any political subdivision or governmental authority thereof or therein on interest by reason of any Holder or beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Code with respect to the Holder Issuer or any Guarantor. The Issuer or Guarantor (as applicable) will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the Funding Note Additional Amounts payment by the Issuer or Guarantor (as provided applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Funding Note Certificate. Whenever in Indenture or the Funding Note Indenture Notes there is are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the principal ofIndenture or the Notes, or (3) interest or premium on, (4) any other amount payable on or in with respect of, the Funding Note or the net proceeds received on the sale or exchange to any of the Funding NoteNotes, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Issuer will pay any present stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in Luxembourg (or any political subdivision thereof pursuant to such termsor therein) from the execution, delivery and express reference to the payment registration of Additional Amounts in any provision Notes upon original issuance and initial resale of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not madeNotes or any other document or instrument referred to therein. If at any time the Funding Note Certificate provides for the payment Issuer changes its place of Additional Amountsorganization to outside of Luxembourg or there is a new issuer organized outside of Luxembourg, the Funding Note Certificate Issuer or new issuer, as applicable, will provide that Global Funding will paypay any stamp, court or documentary taxes, or cause to be paidany other excise, Additional Amounts to a Holder 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 Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments Notes in respect of the Funding Note;
(f) Notes or any taxother document or instrument referred to therein under any law, dutyrule or regulation in effect at the time of such change, levyor in connection with, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) enforcement of the Code for United States Federal income tax purposes provided that Notes or any such treatment was described in the Pricing Supplement;
(g) other document or instrument. The foregoing obligations will survive any taxtermination, duty, levy, assessment defeasance or other governmental charge that would not have been imposed but for an election by the Holder discharge of the Funding Note, Indenture. References in this section (“Additional Amounts”) to the effect of which is Issuer or Guarantor shall apply to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(hany successor(s) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovethereto.
Appears in 1 contract
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuer makes under or with respect to the Holder of Notes or that the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, Guarantors make under or interest or premium on, or in with respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment Guarantees will be made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments on the Funding Note by or on behalf of any jurisdiction in which the Issuer or any Guarantor is incorporated, organized, resident or doing business for tax purposes or any jurisdiction from or through which any payment on the Notes is made (including the jurisdiction of any Paying Agent) or by or within any political subdivision or governmental authority of or in any of the United States foregoing having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless the Issuer or such Guarantor, as the case may be, is required to withhold or deduct Taxes by law. If any amounts for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction are required to be withheld or deducted from any payment made under or with respect to the Notes or any Guarantee, the Issuer or the Guarantor, as the case may be, will pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether deduction (including any withholding or deduction in respect of any Additional Amounts) will not currently payable, will equal be less than the amount that would have been received under if such Taxes had not been withheld or deducted.
(b) Notwithstanding the Funding Note were no such deduction or withholding required; provided that no such foregoing, neither the Issuer nor any Guarantor will, however, be required to pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes, duty, levy, assessment to the extent such Taxes are imposed or other governmental charge imposed which would not have been imposed but for levied by a Holder Relevant Taxing Jurisdiction by reason of the holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with the United Statessuch Relevant Taxing Jurisdiction, including, without limitation, being the holder or having been a citizen or resident thereofbeneficial owner being, or having been presentbeen, a citizen, national, or resident, being, or having been incorporated inbeen, having engaged in a trade or business business, or having (or having had) had a permanent establishment in a Relevant Taxing Jurisdiction (but not including, in each case, any connection arising from the mere receipt, ownership, holding or principal office thereindisposition of Notes, or by reason of the receipt of any payments in respect of any Note or any Guarantee, or the exercise or enforcement of rights under any Notes or any Guarantee);
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any Taxes to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which extent such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is Taxes are imposed or withheld solely by reason of the failure of the holder or beneficial owner of Notes, following the Issuer’s or Guarantor’s written request addressed the relevant holder or beneficial owner made at a Holder of time that would enable the Funding Note holder or beneficial owner acting reasonably to comply with such request, to comply with any certification, identification identification, information or information other reporting requirements concerning (to the nationality, residence, identity extent such holder or connection with the United States of the beneficial owner or a Holder of the Funding Noteis legally eligible to do so), if compliance is whether required by statute, by treaty, regulation of the United States Treasury Department, judicial or administrative interpretationpractice of a Relevant Taxing Jurisdiction, other law or by an applicable income tax treaty to which the United States is a party as a condition precondition to exemption from such taxfrom, dutyor reduction in the rate of deduction or withholding of, levyTaxes imposed by the Relevant Taxing Jurisdiction (including, assessment without limitation, a certification that the holder or other governmental chargebeneficial owner is not resident in the Relevant Taxing Jurisdiction);
(diii) any estate, inheritance, gift, estatesales, transfer, personal property, sales, transfer property or similar tax, duty, levy, assessment, or similar governmental chargeTaxes;
(eiv) any tax, duty, levy, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding from payments in made under or with respect of to the Funding NoteNotes or any Guarantee;
(fv) any taxTax imposed on or with respect to any payment by the Issuer or Guarantor to the holder if such holder is a fiduciary, dutypartnership, levy, assessment limited liability company or person other governmental charge imposed by reason than the sole beneficial owner of payments on such payment to the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided extent that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but for an election by on such payment had such holder been the Holder sole beneficial owner of such Note;
(vi) any Taxes, to the extent such Taxes were imposed as a result of the Funding Note, presentation of a Note for payment (where presentation is required in order to receive payment) more than 30 calendar days after the effect relevant payment is first made available 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 which is to make payment such 30 calendar days’ period);
(vii) any Taxes withheld or deducted on or in respect of any Note pursuant to Sections 1471 through 1474 of the Funding Note subject U.S. Internal Revenue Code of 1986, as amended (commonly referred to as “FATCA”), any treaty, law, regulation or other official guidance enacted by any jurisdiction implementing FATCA, any agreement between either of the Issuer, any Guarantor or any other person and the United States Federal income tax or withholding tax provisions; ora Relevant Taxing Jurisdiction implementing FATCA, or any law of any jurisdiction implementing an intergovernmental agreement entered into between the Relevant Taxing Jurisdiction and the United States with respect to FATCA;
(hviii) any combination of items (a), i) through (b), (c), (d), (e), (f) or (gvii) above.
Appears in 1 contract
Sources: Indenture (Danaos Corp)
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder of Notes or that the Funding Note Additional Amounts as provided in Guarantors make under or with respect to the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guarantees shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments on the Funding Note by or on behalf of any jurisdiction (other than the United States, any state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, resident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the Paying Agent) makes any payment on the Notes or by or within any department, political subdivision or governmental authority of or in any of the United States foregoing having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless such Issuer or Guarantor or other applicable withholding agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If an Issuer, Guarantor or other applicable withholding agent is required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Guarantee, such Issuer or Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder each beneficial owner of the Funding Note, Notes after giving effect to such withholding or deduction, whether deduction (including any withholding or deduction in respect of any Additional Amounts) will not currently payable, will equal be less than the amount that the beneficial owner would have received if such Taxes had not been received under withheld or deducted.
(b) None of the Funding Note were no such deduction Issuers or withholding required; provided that no such Guarantors shall, however, pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes, duty, levy, assessment to the extent such Taxes are imposed or other governmental charge imposed which would not have been imposed but for levied by a Holder Relevant Taxing Jurisdiction by reason of the Holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with such Relevant Taxing Jurisdiction (other than the United Statesmere receipt, includingownership, without limitation, being holding or having been a citizen or resident thereofdisposition of the Notes, or having been presentby reason of the receipt of any payments in respect of any Notes or any Guarantee, having been incorporated in, having engaged in a trade or business the exercise or having (enforcement of rights under any Notes or having had) a permanent establishment or principal office therein, any Guarantee);
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any Taxes to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which extent such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is Taxes are imposed or withheld solely by reason of the failure of the Holder or beneficial owner or a Holder of the Funding Note Notes, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification identification, information or information other reporting requirements concerning (to the nationality, residence, identity extent such holder or connection with the United States of the beneficial owner or a Holder of the Funding Noteis legally eligible to do so), if compliance is whether required by statute, by treaty, regulation of the United States Treasury Department, judicial or administrative interpretationpractice of a Relevant Taxing Jurisdiction, other law or by an applicable income tax treaty to which the United States is a party as a condition precondition to exemption from from, or reduction in the rate of deduction or withholding of, such taxTaxes imposed by the Relevant Taxing Jurisdiction (including, dutywithout limitation, levy, assessment a certification that the Holder or other governmental chargebeneficial owner is not resident in the Relevant Taxing Jurisdiction);
(diii) any estate, inheritance, gift, estatesales, transfer, personal property, sales, transfer property or similar tax, duty, levy, assessment, or similar governmental chargeTaxes;
(eiv) any tax, duty, levy, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding from payments in made under or with respect of to the Funding NoteNotes or any Guarantee;
(fv) any tax, duty, levy, assessment Tax imposed on or other governmental charge imposed with respect to any payment by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) any of the Code for United States Federal income tax purposes provided Issuers or Guarantors 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 such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but on such payment had such beneficial owner been the holder of such Note;
(vi) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for an election by payment (where presentation is required) more than 30 days after the relevant payment is first made available 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);
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC, European Council Directive 2014/107/EU or any other Directive implementing the conclusions of the Funding NoteECOFIN Council meetings of November 26 and 27, 2000 on the effect taxation of which savings income or any law implementing or complying with, or introduced in order to conform to, any such Directive;
(ix) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or any amended or successor version that is substantively comparable and not materially more onerous to make payment comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 1471(b)(1) of the Internal Revenue Code of 1986 as of the Issue Date (or any amended or successor version described above), and including (for the avoidance of doubt) any intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionsforegoing; or
(hx) any combination of items the foregoing.
(ac) The Issuers and the Guarantors, if the applicable withholding agent, shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or any Guarantee is due and payable, if the Issuers or any Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or any Guarantee is due and payable, in which case it will be promptly thereafter), the Issuers shall deliver to the Trustee, with a copy to the Paying Agent, an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including, without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (bi) the execution, issue, delivery or registration of the Notes or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, the Notes or any Guarantee. Upon written request, any of the Issuers or a Guarantor will furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02, in such form as provided in the normal course by the taxing authority imposing such Taxes. If, notwithstanding the efforts of such Issuer or Guarantor to obtain such receipts, the same are not obtainable, such Issuer or Guarantor will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee such information as may be reasonably available to such Issuer and the Guarantors (and not otherwise in the possession of the Trustee) to enable determination of the amount of any withholding Taxes attributable to any particular Holder(s).
(e) Whenever this Indenture or the Notes refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to a Guarantee), (c)such reference includes the payment of Additional Amounts, (d), (e), if applicable.
(f) This Section 4.12 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction (gother than the United States, any state thereof or the District of Columbia) abovein which any successor Person to any of the Issuers or Guarantors is organized, resident or doing business for tax purposes or any jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on the Notes (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to tax.
Appears in 1 contract
Additional Amounts. All payments made under or with respect to the Notes under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes is made, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which the 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 a “Relevant Taxing Jurisdiction”), collectively, “Taxes,” unless the Issuer or any Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency provided, however, that in determining what withholding is required by law for U.S. federal income and withholding tax purposes, the Issuer and any Guarantor shall be entitled 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. If the Funding Issuer or any Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes, the Issuer or such Guarantor, as the case may be, will be required to pay such amount — “Additional Amounts” — as may be necessary so that the net amount (including Additional Amounts) received by each Holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any Holder or beneficial owner to the extent such Taxes are imposed by reason of (i) its being or having been connected with the Relevant Taxing Jurisdiction or any political subdivision or governmental authority thereof or therein having the power to tax, otherwise than by the acquisition, ownership, holding, disposition or enforcement of the Notes or the receipt of payments thereunder, or (ii) such Holder or beneficial owner not cooperating with the Issuer or the Guarantors in completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer or the Guarantors to pay or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the receipt of any payment on or in respect of a Note Certificate provide a complete, correct and executed IRS Form W-8 or W-9 or successor form, as applicable, with all appropriate attachments); provided, however, that for purposes of this obligation to pay Additional Amounts, the Issuer and any Guarantor 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 shall be payable with respect to (i) any Tax imposed by the United States or any political subdivision or governmental authority thereof or therein on interest by reason of any Holder or beneficial owner holding or owning, actually or constructively, 10 percent 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 by the United States or any political subdivision or governmental authority thereof or therein on interest by reason of any Holder or beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Code with respect to the Issuer or any Guarantor. The Issuer will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer will furnish to the Trustee, within 30 days after the date the payment of Additional Amountsany Taxes is due under applicable law, Global Funding agrees to pay to certified copies of tax receipts evidencing such payment by the Holder of the Funding Note Additional Amounts as provided Issuer. Wherever in the Funding Note Certificate. Whenever in Indenture or the Funding Note Indenture Notes there is are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the principal ofIndenture or the Notes, or (3) interest or premium on, (4) any other amount payable on or in with respect of, the Funding Note or the net proceeds received on the sale or exchange to any of the Funding NoteNotes, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such termsthereof. The Issuer will pay any present stamp, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will paycourt or documentary taxes, or cause to be paidany other excise, Additional Amounts to a Holder of the Funding Note to compensate for any withholding property or deduction for or on account of any present or future similar taxes, dutiescharges or levies (including any penalties, levies, assessments interest or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority other liabilities related thereto) which arise in the United States having (or any political subdivision thereof or therein) from the power to taxexecution, so that the net amount received by the Holder delivery and registration of Notes upon original issuance and initial resale of the Funding Note, after giving effect Notes or any other document or instrument referred to such withholding or deduction, whether or not currently payable, will equal therein. If at any time the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner Issuer changes its place of organization to outside of the Funding Note, (i) having any present United States or former connection with there is a new issuer organized outside of the United States, includingthe Issuer or new issuer, without limitationas applicable, being will pay any stamp, court or having been a citizen or resident thereofdocumentary taxes, or having been presentany other excise, having been incorporated inproperty or similar taxes, having engaged charges or levies (including any penalties, interest or other liabilities related thereto) which arise in a trade the jurisdiction in which the Issuer or business or having new issuer is organized (or having hadany political subdivision thereof or therein) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within and are payable by the meaning of Section 957(a) Holders of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments Notes in respect of the Funding Note;
(f) Notes or any taxother document or instrument referred to therein under any law, dutyrule or regulation in effect at the time of such change, levyor in connection with, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) enforcement of the Code for United States Federal income tax purposes provided that Notes or any such treatment was described in the Pricing Supplement;
(g) other document or instrument. The foregoing obligations will survive any taxtermination, duty, levy, assessment defeasance or other governmental charge that would not have been imposed but for an election by the Holder discharge of the Funding Note, Indenture. References in this section (“Additional Amounts”) to the effect of which is Issuer or Guarantor shall apply to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(hany successor(s) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovethereto.
Appears in 1 contract
Sources: Supplemental Indenture (Fresenius Medical Care AG & Co. KGaA)
Additional Amounts. If At least 30 days prior to each date on which payment of principal, premium, if any, or interest or other amounts on the Funding Note Notes is to be made (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”) with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide for the Trustee with documentation evidencing the payment of such Additional Amounts, Global Funding agrees to pay . Copies of such documentation shall be made available to the Holder Holders upon request. The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.12. The Issuer and each Guarantor (as applicable) will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer and each Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copy to the Trustee. If the Issuer or the Guarantors conduct business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, are required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply to such Holders as if references in such provision to “Taxes” included taxes imposed by way of deduction or withholding by any such Additional Taxing Jurisdiction (or any political subdivision thereof or taxing authority therein). The Issuer will pay any present stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in 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 Funding 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 Additional Amounts Guarantee or any other document or instrument referred to therein. If at any time the Issuer changes its place of organization to outside of the United States or there is a new issuer organized outside of the United States, the Issuer or new issuer, as provided 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 Funding 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 CertificateGuarantee or any -40- other document or instrument referred to therein under any law, rule or regulation in effect at the time of such change or thereafter. The foregoing obligations of this Section 4.12 and Paragraph 2 of the Notes will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Issuer or the Guarantors. Whenever in this Indenture or in the Funding Notes or any Note Indenture Guarantee there is mentioned, in any context, the payment of the principal ofprincipal, purchase price, premium or interest, if any, or interest any other amount payable under or premium on, or in with respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding to any Note, such reference mention shall be deemed to include reference to mention of the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
Appears in 1 contract
Additional Amounts. (a) All payments made by or on behalf of the Company or the Guarantors on or with respect to the Notes pursuant to this Indenture shall be made without withholding or deduction for any Taxes imposed by any Canadian Taxing Authority, unless required by law or the interpretation or administration thereof by the relevant Canadian Taxing Authority. If the Funding Note Certificate provide Company or any Guarantor (or any other payor) is required to withhold or deduct any amount on account of Taxes imposed by any Canadian Taxing Authority from any payment made under or with respect to any Notes that are outstanding on the date of the required payment, it shall:
(1) make such withholding or deduction;
(2) remit the full amount so deducted or withheld to the relevant Canadian Tax Authority in accordance with applicable law;
(3) pay the additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction (including any deduction or withholding for Additional Amounts) will not be less than the amount the Holder would have received if such Taxes had not been withheld or deducted;
(4) furnish to the Holders, within 30 days after the date the payment of any Taxes is due, certified copies of tax receipts evidencing such payment by the Company or such Guarantor;
(5) indemnify and hold harmless each Holder (other than an Excluded Holder, as defined in paragraph (b) below) for the amount of (a) any Taxes paid by each such Holder as a result of payments made on or with respect to the Notes, (b) any liability (including penalties, interest and expenses) arising from or with respect to such payments and (c) any Taxes imposed with respect to any reimbursement under the foregoing clauses (a) or (b), but excluding any such Taxes that are in the nature of Taxes on net income, taxes on capital, franchise taxes, net worth taxes and similar taxes; and
(6) at least 30 days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment, deliver to the Trustee an Officer’s Certificate stating the amounts so payable and such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date.
(b) Notwithstanding the provisions of paragraph (a) above, no Additional Amounts shall be payable to a Person (an “Excluded Holder”) in respect of a payment made to such Person under or with respect to a Note:
(1) if such Person is subject to such Taxes by reason of it being a resident, domicile or national of, or engaged in business (including insurance business carried on in Canada and elsewhere) or maintaining a permanent establishment or other physical presence in or otherwise having some present or former connection with Canada or any province or territory thereof otherwise than by the mere acquisition, holding or disposition of Notes or the receipt of payments thereunder;
(2) if such Person waives its right to receive Additional Amounts;
(3) if the Company or such Guarantor does not deal at arm’s length, Global Funding agrees within the meaning of the Income Tax Act (Canada) (the “Tax Act”), with such Person at the time of such payment;
(4) if the Company or such Guarantor does not deal at arm’s length, within the meaning of the Tax Act, with another Person to whom the Company or such Guarantor has an obligation to pay an amount in respect of the Notes;
(5) to the Holder extent that the Taxes giving rise to such Additional Amounts would not have been imposed but for such person being, or not dealing at arm’s length (within the meaning of the Funding Note Tax Act) with, a “specified shareholder” of the Company for purposes of the thin capitalization rules in the Tax Act;
(6) to the extent that the Taxes giving rise to such Additional Amounts would not have been imposed but for such person being a “specified entity” (as provided defined in subsection 18.4(1) of the Tax Act) of the Company or of such Guarantor;
(7) to the extent that the Taxes giving rise to such Additional Amounts are imposed by reason of the failure to comply with any certifications, indemnification, information, documentation or other reporting requirements if compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or a reduction in the Funding Note Certificaterate of deduction or withholding of, such Taxes; or
(8) any combination of the above. Whenever in the Funding Note Indenture there is mentionedAny reference, in any contextcontext in this Indenture, to the payment of the principal ofprincipal, premium, if any, redemption price, Change of Control Payment, offer price and interest, or interest any other amount payable under or premium on, or in with respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding to any Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable payable. The obligations described under this Section 4.12 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in respect thereof pursuant to such terms, and express reference which any successor Person to the payment Company or any Guarantor, as applicable, is organized or any political subdivision or taxing authority or agency thereof or therein. It is understood for purposes of Additional Amounts in any provision this Section 4.12 that the determination of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment amount of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of made at the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.level.
Appears in 1 contract
Sources: Indenture (Videotron Ltee)
Additional Amounts. (a) All payments made by or on behalf of the Company under or with respect to the Securities or by or on behalf of any Guarantor with respect to any 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 for, or on account of, such taxes is then required by law. If any deduction or withholding for, or on account of, any taxes imposed or levied by or on behalf of any jurisdiction in which the Company or any Guarantor is then incorporated, organized or resident for tax purposes or any political subdivision thereof or therein (each, a “Tax Jurisdiction”) will at any time be required to be made from any payments made by or on behalf of the Company under or with respect to the Securities or by or on behalf of any of the Guarantors with respect to any Guarantee, including payments of principal, redemption price, purchase price, interest or premium, the Company 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 in respect of such payments by each Holder of Securities after such withholding or deduction (including any such withholding or deduction from such Additional Amounts) will equal the respective amounts that would have been received 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:
(i) any taxes, to the extent such taxes would not have been imposed but for the existence of any present or former connection between the Holder (or between a fiduciary, settler, beneficiary, member or shareholder of, or possessor of a power over, the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or the beneficial owner of the Securities and the relevant Tax Jurisdiction (other than the mere holding of such Note, the enforcement of rights under such Note or under a Guarantee or the receipt of any payments in respect of such Note or a Guarantee), (including, without limitation, being or having been a citizen or a resident of such Tax Jurisdiction, being or having been engaged in a trade or business in such Tax Jurisdiction or having or having had a permanent establishment in such Tax Jurisdiction);
(ii) 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);
(iii) any estate, inheritance, gift, sales, transfer, stamp, personal property, excise, wealth or similar taxes;
(iv) taxes imposed on or with respect to a payment made to a Holder or beneficial owner of Securities who would have been able to avoid such withholding or deduction by presenting the relevant Securities to another Paying Agent;
(v) any taxes payable other than by deduction or withholding from payments under, or with respect to, the Securities or with respect to any Guarantee;
(vi) any U.S. taxes that are imposed as a result of the Holder or beneficial owner being or having been a controlled foreign corporation, personal holding company or passive foreign investment company with respect to the United States or a corporation that accumulates earnings to avoid United States federal income tax;
(vii) any U.S. taxes imposed on any person that is, for U.S. federal income tax purposes, an individual who is a citizen or resident of the United States, a corporation or partnership or other entity created or organized in or under the laws of the United States, any state thereof or the District of Columbia or any estate or trust the income of which is subject to U.S. federal income taxation regardless of its source;
(viii) any U.S. backup withholding taxes;
(ix) any U.S. taxes that are imposed as a result of the Holder or beneficial owner being or having been (i) a “10 per cent. shareholder” as defined in Section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”) or any successor provisions of the Code of the Company, (ii) a bank treated as receiving 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, or (iii) a controlled foreign corporation within the meaning of section 957 of the Code that is related within the meaning of section 864(d)(4) of the Code to the Company;
(x) any taxes (i) if the Holder or beneficial owner would not have been liable for or subject to withholding or deduction of such taxes had it delivered an appropriate, valid and properly completed, United States Internal Revenue Service Form W-8 or Form W-9 (or any successor or substitute form) to any withholding agent or any other person; or (ii) to the extent such taxes are imposed, withheld or deducted by reason of the failure of the Holder or beneficial owner of Securities to comply with any reasonable written request of the Company, addressed to the Holder and made at least 30 days before any such withholding or deduction is to be made, to satisfy any certification, identification, information or other reporting requirements, whether required by statute, 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);
(xi) any tax that is imposed on or with respect to any payment made to any Holder who is a fiduciary or partnership or an entity that is not the sole beneficial owner of such payment, to the extent that a beneficiary or settlor (for tax purposes) with respect to such fiduciary, a member of such 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 the applicable Securities; or
(xii) any combination of items (i) through (xi) above.
(b) Notwithstanding any other provision herein, any payments made by or on behalf of the Company under or with respect to the Securities or by or on behalf of any Guarantor with respect to any Guarantee, shall be paid net of any deduction or withholding imposed or required pursuant to an agreement described in Section 1471(b) of the Code, or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations thereunder or official interpretations thereof) or an intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any fiscal or regulatory legislation, regulations, rules or practices implementing such an intergovernmental agreement) (any such withholding or deduction, a “FATCA Withholding”). Neither the Company or the Guarantors nor any other person shall be required to pay any Additional Amounts in respect of any FATCA Withholding.
(c) In addition to the foregoing, the Company and the Guarantors, if any, shall also pay and indemnify the Holders and/or the Trustee for any present or future stamp, issue, registration, transfer, court or documentary taxes or any other similar taxes, charges or levies (including penalties and interest with respect thereto), which are levied by any Tax Jurisdiction on the execution, delivery, issuance, registration or enforcement of any of the Securities, the Indenture or any Guarantee, except for any such taxes imposed or levied as a result of a transfer after the Issue Date.
(d) If the Funding Note Company or any Guarantor, as the case may be, becomes aware that it shall be obligated to pay Additional Amounts with respect to any payment under or with respect to the Securities or any Guarantee, the Company or the relevant Guarantor, as the case may be, shall deliver to the Trustee and 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 less than 30 days prior to that payment date, in which case the Company or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Certificate provide for stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate shall also set forth any other information reasonably necessary to enable any Paying Agent to pay Additional Amounts to Holders on the relevant payment date. The Trustee and Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary.
(e) The Company or the relevant Guarantor shall make (or cause to be made) all withholdings and deductions for, or on account of, taxes required by law and will remit (or cause to be remitted) the full amount deducted or withheld to the relevant tax authority in accordance with applicable law. The Company or the relevant Guarantor shall use its reasonable efforts to obtain tax receipts from each tax authority evidencing the payment of Additional Amounts, Global Funding agrees to pay any taxes so deducted or withheld. The Company or the relevant Guarantor shall furnish to the Trustee (or to a Holder upon written request), within 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 the Funding Note Additional Amounts Company or the Guarantor, as provided in the Funding Note Certificate. case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments by such entity.
(f) Whenever in this Indenture or the Funding Note Indenture Securities, there is mentioned, in any context, the payment of amounts based upon the principal ofamount of the Securities or of principal, interest or any other amount payable under, or interest or premium onwith respect to, or in respect of, the Funding Note or the net proceeds received on the sale or exchange any of the Funding NoteSecurities or any Guarantee, such reference mention shall be deemed to include reference to mention of the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such termsthereof.
(g) The obligations described in this Section 4.10 shall survive any termination, and express reference to the payment of Additional Amounts in any provision defeasance or discharge of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note transfer by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of its Securities, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Funding NoteCompany or any Guarantor is then incorporated, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen organized or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent any political subdivision thereof or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code therein and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on such jurisdiction will be considered a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) aboveTax Jurisdiction.
Appears in 1 contract
Sources: Indenture (Amrize LTD)
Additional Amounts. If (a) All payments made by the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay to the Holder Company in respect of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, Securities or interest or premium on, or a Guarantor in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall a Guarantee will be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for for, or on account of of, any present or future taxesTaxes unless the withholding or deduction of such Taxes is then required by law. If any deduction or withholding for, dutiesor on account of, levies, assessments or governmental charges of whatever nature any Taxes imposed or levied on payments on the Funding Note by or on behalf of any jurisdiction in which the Company or the relevant Guarantor is then incorporated or organized or resident for Tax purposes, any jurisdiction from or through which payment on behalf of the Company or Guarantor is made or any political subdivision or governmental authority in the United States thereof or therein having the power to taxtax (each, so a “Tax Jurisdiction”), will at any time be required to be made from any payments made by or on behalf of the Company in respect of the Securities or the relevant Guarantor under its Guarantee, including payments of principal, redemption price, purchase price, interest or premium, the Company or the relevant Guarantor will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amount amounts received in respect of such payments (including payments of principal, redemption price, interest or premium) by the each Holder of the Funding Note, (including Additional Amounts) after giving effect to such withholding or deduction, whether or not currently payable, deduction will equal the amount respective amounts that would have been received under in respect of such payments in the Funding Note were no absence of such deduction withholding or withholding requireddeduction; provided provided, however, that no such Additional Amounts shall will be required for or on account ofpayable with respect to:
(ai) any tax, duty, levy, assessment or other governmental charge imposed which Taxes that would not have been so imposed but for the existence of any present or former connection between the Holder or the beneficial owner of the Security or Guarantee (or between a fiduciary, settler, beneficiary, partner, member or shareholder of, or possessor of power over the relevant Holder or beneficial owner, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the relevant Tax Jurisdiction, other than by the mere acquisition or holding of any Security or the enforcement or receipt of payment under or in respect of any Security or Guarantee;
(ii) any Taxes imposed or withheld as a result of the failure of the Holder or beneficial owner of any Security or Guarantee to comply with any written request, made to that Holder or beneficial owner within a reasonable period before any such withholding or deduction would be payable, by the Company or a Guarantor to provide timely or 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 requirements (in each case, to the extent such 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 deduction or withholding of such Taxes;
(iii) any Taxes that are imposed or withheld as a result of the presentation of any Security or Guarantee for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder or beneficial owner (except to the extent that the Holder or beneficial owner would have been entitled to Additional Amounts had the Security been presented on the last day of such 30 day period);
(iv) any estate, inheritance, gift, sale, excise, transfer, personal property or similar Tax or assessment;
(v) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to any Security or Guarantee;
(vi) any Taxes that are imposed or withheld as a result of the presentation of any Security or Guarantee for payment by or on behalf of a Holder or beneficial owner of such Securities or Guarantee who would have been able to avoid such withholding or deduction by presenting the Funding Noterelevant Security or Guarantee to, or otherwise accepting payment from, another paying agent;
(ivii) having any present Taxes that are imposed or former connection with withheld pursuant to Sections 1471 through 1474 of the Code, 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, including, without limitation, being States with respect to the foregoing or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of any agreements entered into pursuant to Section 957(a) of the Code related within the meaning of Section 864(d)(41471(b)(1) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(hviii) any combination of items (a), i) through (b), (c), (d), (e), (f) or (gvii) above.
(b) The relevant Guarantor will pay when due any present or future stamp, transfer, court or documentary Taxes or any other excise or property Taxes that arise in a Tax Jurisdiction with respect to the initial execution, delivery or registration of the Guarantee or any other document or instrument relating thereto (other than the Securities).
(c) The relevant Guarantor will use reasonable efforts to furnish to the Holders, within a reasonable period of time after the due date for the payment of any Taxes so deducted or withheld pursuant to applicable law, either certified copies of Tax receipts evidencing such payment by such Guarantor (in such form as provided in the ordinary course by the relevant Tax Jurisdiction and as is reasonably available to the Guarantor), or, if such receipts are not obtainable, other evidence of such payments by such Guarantor reasonably satisfactory to the Holders.
Appears in 1 contract
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder of Notes or that the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, Guarantors make under or interest or premium on, or in with respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment Guarantees will be made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on payments on the Funding Note by or on behalf of any governmental authority jurisdiction in which any Issuer or any Guarantor is organized or is a resident for tax purposes or from or through which any of the United States having foregoing makes any payment on the power Notes or any Guarantee or by or within any department or political subdivision thereof (each, a “Relevant Taxing Jurisdiction”), unless such Issuer or such Guarantor, as the case may be, is required to taxwithhold or deduct Taxes by law or by the interpretation or administration of law. If an Issuer or a Guarantor is required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, so such Issuer or Guarantor, as the case may be, will pay additional amounts in cash (“Additional Amounts”) as may be necessary to ensure that the net amount received by the each Holder of the Funding Note, Notes after giving effect to such withholding or deduction, whether deduction (including withholding or deduction attributable to Additional Amounts payable hereunder) will not currently payable, will equal be less than the amount that the Holder would have received if such Taxes had not been received under withheld or deducted.
(b) Notwithstanding the Funding Note were no such deduction foregoing, none of the Issuers nor any Guarantor will pay Additional Amounts to a Holder or withholding required; provided that no beneficial owner of Notes:
(i) to the extent the Taxes giving rise to such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder the Holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with the United StatesRelevant Taxing Jurisdiction (other than a connection arising by reason of the acquisition, ownership, holding or Disposition of the Notes or by reason of the receipt of payments thereunder or under any Guarantee or the exercise or enforcement of rights under any Notes or the Indenture or under any Guarantee);
(ii) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the failure of the Holder or beneficial owner of Notes, following any Issuer’s written request addressed to the Holder, to the extent such Holder or beneficial owner is legally entitled to do so, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, being a certification that the Holder or having been a citizen or beneficial owner is not resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, Relevant Taxing Jurisdiction);
(iii) being a bank for United States Federal income tax purposes whose receipt in respect of interest on the Funding Note is described in Section 881(c)(3)(A) any Tax imposed or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder indenture (or any amended or successor version of such sections that is substantively comparable), current or future Treasury Regulations issued thereunder or any official interpretation thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Funding NoteCode as of the date of the indenture (or any amended or successor version described above), and any intergovernmental agreement (or related governmental regulations, rules or official administrative practices) implementing the foregoing;
(biv) with respect to any taxestate, dutyinheritance, levygift, assessment sales, transfer or personal property tax or any similar Taxes;
(v) if such Holder is a fiduciary or partnership or person other governmental charge which than the sole beneficial owner of such payment and the Taxes giving rise to such Additional Amounts would not have been imposed on such payment had such Holder been the beneficiary, partner or sole beneficial owner, as the case may be, of such Note (but only if there is no material cost or expense associated with transferring such Note 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);
(vi) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the presentation by the Holder of any Funding Note (Note, where presentation is required) , for payment on a date more than 30 days after the date on which such payment becomes became due and payable or the date on which payment thereof is duly provided for, for whichever occurs later;; and
(vii) with respect to any combination of the items listed above. The Issuers and the Guarantors will (i) make such withholding or deduction required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Issuers and the Guarantors will make reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes. The Issuers and the Guarantors will provide to the Trustee, within a reasonable time after the date the payment of any Taxes so deducted or withheld are due pursuant to applicable law, either a certified copy of tax receipts evidencing such payment, or, if such tax receipts are not reasonably available to the Issuers or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Issuers or such Guarantor.
(c) At least 30 calendar days prior to each date on which any taxpayment under or with respect to the Notes is due and payable, dutyif the Issuers or any Guarantor will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, levyin which case it will be promptly thereafter), assessment the Issuers will deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date. The Issuers shall promptly publish a notice in accordance with Section 13.02 stating that such Additional Amounts will be payable and describing the obligations to pay such amounts. In addition, the Issuers and the Guarantors will pay any present or future stamp, issue, registration, court, documentation, excise or other governmental charge which is similar taxes, charges and duties, including interest and penalties with respect thereto, imposed or withheld solely by reason any Relevant Taxing Jurisdiction in respect of the failure execution, issue, registration or delivery of the beneficial owner Notes or any Guarantee or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any jurisdiction as a Holder result of, or in connection with, the enforcement of the Funding Note to comply with certification, identification Notes or information reporting requirements concerning the nationality, residence, identity any Guarantee and/or any other such document or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;instrument.
(d) The foregoing provisions shall survive any inheritancetermination, gift, estate, personal property, sales, transfer defeasance or similar tax, duty, levy, assessment, discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction in which any Surviving Entity (as defined in Section 5.01(a)(i)) is organized or similar governmental charge;resident for tax purposes or any jurisdiction from or through which payment is made by such Surviving Entity.
(e) Whenever the Indenture or the Notes refer to, in any taxcontext, dutythe payment of principal, levypremium, assessment if any, interest or any other governmental charge amount payable under or with respect to any Note, such reference shall be deemed to include mention of the payment of Additional Amounts or indemnification payments as described hereunder, to the extent that is in such context Additional Amounts or indemnification payments are, were or would be payable otherwise than by withholding from payments in respect thereof pursuant to Section 4.12 of the Funding Note;Indenture.
(f) The Issuers and the Guarantors, jointly and severally, will indemnify and hold harmless the Holders of Notes, and, upon written request of any taxHolder of Notes, duty, levy, assessment reimburse such Holder for the amount of (i) any Taxes levied or other governmental charge imposed by reason of a Relevant Taxing Jurisdiction and payable by such Holder in connection with payments on made under or with respect to the Funding Note being treated as contingent interest Notes held by such Holder or any Guarantees; and (ii) any Taxes levied or imposed by a Relevant Taxing Jurisdiction with respect to any reimbursement under the foregoing clause (i) or this clause (ii), so that the net amount received by such ▇▇▇▇▇▇ after such reimbursement will not be less than the net amount such Holder would have received if the Taxes giving rise to the reimbursement described in Section 871(h)(4clauses (i) and/or (ii) had not been imposed; provided, however, that the indemnification obligation provided for in this paragraph shall not extend to Taxes imposed for which the eligible Holder of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Notes would not have been imposed but for an election by eligible to receive payment of Additional Amounts pursuant to exceptions (b)(i) through (vii) above or to the extent such Holder of the Funding Note, the effect of which is received Additional Amounts with respect to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovesuch payments.
Appears in 1 contract
Sources: Indenture (Transact LTD)
Additional Amounts. If (a) With respect to any series of Notes, if any deduction or withholding for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the Funding Note Certificate provide Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority thereof or therein having power to tax, or (ii) any jurisdiction from or through which payment on the Notes of such series or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (i) and (ii), a “Relevant Taxing Jurisdiction”), shall at any time be required from any payments made with respect to the Notes of such series or the Guarantees, including payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, shall pay (together with such payments) such additional amounts pursuant to Paragraph 2 of the Notes (“Additional Amounts”).
(b) The Payor and each Guarantor or successor Guarantor 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. Upon written request, the Payor and each Guarantor shall use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of Additional Amounts, Global Funding agrees any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to pay each Holder. The Payor and each Guarantor or successor Guarantor 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 Notes then outstanding and (y) the amount of such withholding Taxes paid per $1,000 principal amount of the Notes.
(c) At least 10 days prior to the Holder first date on which payment of principal, premium, if any, or interest on the Funding Note Additional Amounts as provided Notes of any series or the Guarantees is to be made, and at least 10 days prior to any subsequent such date if there has been any change with respect to the matters set forth in the Funding Note Certificate. Whenever Officers’ Certificate described in this Section 4.7, the Issuer shall furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate instructing the Trustee and the Paying Agent that such payment of principal, premium, if any, or interest on the Notes (whether or not in the Funding Note form of Definitive Notes) or any Guarantee shall be made to the Holders with withholding or deduction (but only in case such payment shall be made with such withholding or deduction) for, or on account of, Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction.
(d) Wherever in this Indenture or the Notes of such series there is are mentioned, in any context, (i) the payment of the principal ofprincipal, or (ii) purchase prices in connection with a purchase of Notes, (iii) interest or premium on, (iv) any other amount payable on or in with respect of, to the Funding Note Notes of such series or the net proceeds received on the sale or exchange of the Funding NoteGuarantees, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note as described in this Indenture or pursuant to the Funding Note Indenture and such Notes to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;.
(e) The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any taxloss, dutyliability or expense incurred without gross negligence, levy, assessment willful default or other governmental charge that is payable otherwise than fraud on their part arising out of or in connection with actions taken or omitted by withholding from payments any of them in respect of the Funding Note;reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.7.
(f) Obligations under this Section 4.7 shall survive any taxtermination, duty, levy, assessment defeasance or other governmental charge imposed by reason discharge of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovethis Indenture.
Appears in 1 contract
Sources: Indenture (Smurfit Kappa Acquisitions Unlimited Co)
Additional Amounts. If At least 30 days prior to each date on which payment of principal, premium, if any, or interest or other amounts on the Funding Note Notes is to be made (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”) with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide for the Trustee with documentation evidencing the payment of such Additional Amounts, Global Funding agrees to pay . Copies of such documentation shall be made available to the Holder Holders upon request. The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.12. The Issuer and each Guarantor (as applicable) will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer and each Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copy to the Trustee. -41- If the Issuer or the Guarantors conduct business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, are required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply to such Holders as if references in such provision to “Taxes” included taxes imposed by way of deduction or withholding by any such Additional Taxing Jurisdiction (or any political subdivision thereof or taxing authority therein). The Issuer will pay any present stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in Luxembourg (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 Funding 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 Additional Amounts Guarantee or any other document or instrument referred to therein. If at any time the Issuer changes its place of organization to outside of Luxembourg or there is a new issuer organized outside of Luxembourg, the Issuer or new issuer, as provided 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 Funding 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 CertificateGuarantee or any other document or instrument referred to therein under any law, rule or regulation in effect at the time of such change or thereafter. The foregoing obligations of this Section 4.12 and Paragraph 2 of the Notes will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Issuer or the Guarantors. Whenever in this Indenture or in the Funding Notes or any Note Indenture Guarantee there is mentioned, in any context, the payment of the principal ofprincipal, purchase price, premium or interest, if any, or interest any other amount payable under or premium on, or in with respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding to any Note, such reference mention shall be deemed to include reference to mention of the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
Appears in 1 contract
Additional Amounts. If (a) All payments that the Funding Issuer makes under or with respect to this Note Certificate provide for or that the payment of Additional Amounts, Global Funding agrees to pay Subsidiary Guarantors make under or with respect to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guarantees shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present pre-sent or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, "Taxes" or "Tax") imposed or levied on payments on the Funding Note by or on behalf of the federal government of Canada or by or within any governmental authority province or political subdivision thereof or within any other jurisdiction in which the United States having Issuer, the power Subsidiary Guarantors or any Surviving Entity are organized or resident for tax purposes or from or through which payment is made (each, a "Relevant Taxing Jurisdiction"), unless the Issuer or the Subsidiary Guarantors, as the case may be, are required to taxwithhold or deduct Taxes by law or by the interpretation or administration of law. If the Issuer or the Subsidiary Guarantors are required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to this Note, the Issuer or the Subsidiary Guarantors, as the case may be, shall pay additional amounts ("Additional Amounts"), to the extent they may lawfully do so, so that the net amount received by the each Holder of the Funding Note, (including Additional Amounts) after giving effect to such withholding or deduction, whether or deduction shall not currently payable, will equal be less than the amount that the Holder would have received if such Taxes had not been received under withheld or deducted.
(b) Notwithstanding the Funding Note were no such deduction or withholding required; provided that no such foregoing, neither the Issuer nor the Subsidiary Guarantors shall pay Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for to a Holder or beneficial owner of this Note to the Funding Note, extent that the Taxes are imposed or levied:
(i) having any by a Relevant Taxing Jurisdiction by reason of the Holder's or beneficial owner's present or former connection with such Relevant Taxing Jurisdiction (other than the United States, including, without limitation, being mere receipt or having been a citizen holding of this Note or resident thereof, by reason of the receipt of payments thereunder or having been present, having been incorporated in, having engaged in a trade the exercise or business enforcement of rights under this Note or having (or having had) a permanent establishment or principal office therein, the Indenture); or
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the Holder or beneficial owner or of this Note, prior to the relevant date on which a Holder of payment under and with respect to the Funding Note Notes is due and payable (the "Relevant Payment Date") to comply with the Issuer's written request addressed to the Holder at least 30 calendar days prior to the Relevant Payment Date to provide accurate information with respect to any certification, identification identification, information or information other reporting requirements concerning which the nationality, residence, identity Holder or connection with the United States of the such beneficial owner or a Holder of the Funding Noteis legally required to satisfy, if compliance is required whether imposed by statute, by treaty, regulation of the United States Treasury Department, judicial or administrative interpretationpractice, other law or in each such case by an applicable income tax treaty to which the United States is a party Relevant Taxing Jurisdiction, as a condition precondition to exemption from such taxfrom, dutyor reduction in the rate of deduction or withholding of, levyTaxes imposed by the Relevant Taxing Jurisdiction (including, assessment without limitation, a certification that the Holder or other governmental charge;beneficial owner is not resident in the Relevant Taxing Jurisdiction).
(dc) The Issuer's and the Subsidiary Guarantors' obligation to pay Additional Amounts or to reimburse a Holder for Taxes paid by such Holder in respect of Taxes shall not apply with respect to:
(i) any estate, inheritance, gift, estatesale, transfer, personal property, sales, transfer property or similar tax, duty, levy, assessment, or similar governmental chargeTaxes;
(eii) any tax, duty, levy, assessment or other governmental charge Tax that is payable otherwise than by deduction or withholding from payments in made under or with respect of the Funding to this Note;
(fiii) Taxes imposed on or with respect to any tax, duty, levy, assessment payment by the Issuer or the Subsidiary Guarantors to the Holder if such Holder is a fiduciary or partnership or person other governmental charge imposed by reason than the sole beneficial owner of payments on such payment to the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided extent that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but for an election on such Holder had such Holder been the sole beneficial owner of this Note;
(iv) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by the Holder presenting this Note to another paying agent in a member state of the Funding Note, the effect of which is to make payment European Union;
(v) any such withholding or deduction in respect of any Taxes imposed on a payment to an individual that is required to be made pursuant to any EU Directive on the Funding Note subject taxation of savings implementing the conclusions of the ECOFIN Council meeting of 26th-27th November 2000 or any law implementing or complying with, or introduced in order to United States Federal income tax or withholding tax provisionsconform to, such Directive; or
(hvi) any combination of items (ai), (bii), (ciii), (iv) and (v).
(d) At least 30 calendar days prior to each date on which any payment under or with respect to this Note is due and payable, if the Issuer or the Subsidiary Guarantors shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it shall be promptly thereafter), the Issuer or the Subsidiary Guarantors shall deliver to the Trustee an Officer's Certificate stating that such Additional Amounts shall be payable and the amounts so payable and shall set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date. The Issuer shall promptly publish a press release stating that such Additional Amounts shall be payable and describing its obligation to pay such amounts.
(e)) Whenever this Note refers to, (f) in any context, the payment of principal, interest, if any, or (g) aboveany other amount payable under or with respect to this Note, such payment shall also include the payment of Additional Amounts, if applicable.
Appears in 1 contract
Sources: Indenture (TMM Lines LTD LLC)
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder of Notes or that the Funding Note Additional Amounts as provided in Guarantors make under or with respect to the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guarantees shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments on the Funding Note by or on behalf of any jurisdiction (other than the United States, any state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, resident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the Paying Agent) makes any payment on the Notes or by or within any department, political subdivision or governmental authority of or in any of the United States foregoing having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless such Issuer or Guarantor or other applicable withholding agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If either Issuer, a Guarantor or other applicable withholding agent is required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Guarantee, such Issuer or Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder each beneficial owner of the Funding Note, Notes after giving effect to such withholding or deduction, whether deduction (including any withholding or deduction in respect of any Additional Amounts) will not currently payable, will equal be less than the amount that the beneficial owner would have received if such Taxes had not been received under withheld or deducted.
(b) None of the Funding Note were no such deduction Issuers or withholding required; provided that no such Guarantors shall, however, pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes, duty, levy, assessment to the extent such Taxes are imposed or other governmental charge imposed which would not have been imposed but for levied by a Holder Relevant Taxing Jurisdiction by reason of the Holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with such Relevant Taxing Jurisdiction (other than the United Statesmere receipt, includingownership, without limitation, being holding or having been a citizen or resident thereofdisposition of the Notes, or having been presentby reason of the receipt of any payments in respect of any Notes or any Guarantee, having been incorporated in, having engaged in a trade or business the exercise or having (enforcement of rights under any Notes or having had) a permanent establishment or principal office therein, any Guarantee);
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any Taxes to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which extent such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is Taxes are imposed or withheld solely by reason of the failure of the Holder or beneficial owner or a Holder of the Funding Note Notes, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification identification, information or information other reporting requirements concerning (to the nationality, residence, identity extent such holder or connection with the United States of the beneficial owner or a Holder of the Funding Noteis legally eligible to do so), if compliance is whether required by statute, by treaty, regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is practice of a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;Relevant Taxing
(diii) any estate, inheritance, gift, estatesales, transfer, personal property, sales, transfer property or similar tax, duty, levy, assessment, or similar governmental chargeTaxes;
(eiv) any tax, duty, levy, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding from payments in made under or with respect of to the Funding NoteNotes or any Guarantee;
(fv) any tax, duty, levy, assessment Tax imposed on or other governmental charge imposed with respect to any payment by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) any of the Code for United States Federal income tax purposes provided Issuers or Guarantors 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 such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but on such payment had such beneficial owner been the holder of such Note;
(vi) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for an election by payment (where presentation is required) more than 30 days after the relevant payment is first made available 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);
(viii) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Funding NoteInternal Revenue Code of 1986 as of the Issue Date (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 or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 1471(b)(1) of the effect Internal Revenue Code of which is to make payment 1986 as of the Issue Date (or any amended or successor version described above), and including (for the avoidance of doubt) any intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionsforegoing; or
(hix) any combination of items the foregoing.
(ac) The Issuers and the Guarantors, if the applicable withholding agents, shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or any Guarantee is due and payable, if the Issuers or any Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or any Guarantee is due and payable, in which case it will be promptly thereafter), the Issuers shall deliver to the Trustee, with a copy to the Paying Agent, an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including, without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (bi) the execution, issue, delivery or registration of the Notes or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, the Notes or any Guarantee. Upon written request, any of the Issuers or a Guarantor will furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02, in such form as provided in the normal course by the taxing authority imposing such Taxes. If, notwithstanding the efforts of such Issuer or Guarantor to obtain such receipts, the same are not obtainable, such Issuer or Guarantor will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee such information as may be reasonably available to such Issuer and the Guarantors (and not otherwise in the possession of the Trustee) to enable determination of the amount of any withholding Taxes attributable to any particular Holder(s).
(e) Whenever this Indenture or the Notes refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to a Guarantee), (c)such reference includes the payment of Additional Amounts, (d), (e), if applicable.
(f) This Section 4.12 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction (gother than the United States, any state thereof or the District of Columbia) abovein which any successor Person to any of the Issuers or Guarantors is organized, resident or doing business for tax purposes or any jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on the Notes (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to tax.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. If the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received All payments made on the sale Book-Entry Notes of a Series will be made free and clear of and without deduction or exchange of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxesTaxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on unless the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no deduction is then required by law. If any such deduction or withholding required; provided is required by the United Kingdom or any political subdivision or taxing authority thereof or therein (“Taxes”), each owner of Book-Entry Notes of a Series so affected shall be entitled to receive from the Book-Entry Depositary additional amounts (“Additional Amounts”) to the extent that no such owner would be entitled to receive Additional Amounts shall under the Indenture to be required for or on account of:
(a) determined by treating the owner of any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for Book-Entry Interest as a Holder or beneficial owner Beneficial Owner for purposes of Section 10.04 of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, relevant Indenture). At least 10 days prior to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the first date on which withholding on account of Taxes would be required under applicable law or payment of Additional Amounts would be required pursuant to this Section 2.12 to be made, and at least 10 days prior to any subsequent such payment becomes due and payable or date if there has been any change with respect to such matters, the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of Issuer will furnish the failure of Book-Entry Depositary with an Officers’ Certificate that shall specify the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Noteamount, if compliance is any, required by statuteto be withheld on such payments to the Depositary and the amount of Additional Amounts payable to the Depositary, by regulation net of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty amounts to which the United States Depositary or any owner of such Book-Entry Interest is not entitled. The Book-Entry Depositary shall have no responsibility for determining whether the Depositary or any owner of a party as a condition Book-Entry Interest is entitled to exemption from such taxthe payment of Additional Amounts, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments but shall be entitled to rely conclusively for this purpose on the Funding Note being treated as contingent interest described in Section 871(h)(4) of Officers’ Certificate or on certifications from the Code for United States Federal income tax purposes Depositary. Notwithstanding anything to the contrary provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Noteabove, the effect Book-Entry Depositary shall pay or cause to be paid Additional Amounts only out of which is to make payment in respect of funds that shall be received by it from the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) aboveIssuer for that purpose.
Appears in 1 contract
Additional Amounts. If the Funding Note Certificate provide for the The payment of Additional AmountsCapital Payments on the Class B Preferred Securities, Global Funding agrees to pay to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in and any context, the payment of the principal of, or interest or premium on, amount payable upon redemption thereof or in respect ofliquidation, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture made without any deduction or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments duties or governmental charges of whatever any nature imposed whatsoever imposed, levied or levied collected by or on behalf of the United States or Germany (or any jurisdiction from which payments are made) or, during any period any Substitute Obligations are outstanding, the jurisdiction of residence of any obligor on the Funding Note such Substitute Obligations (or any jurisdiction from which payments are made) (each a “Relevant Jurisdiction”) or by or on behalf of any governmental political subdivision or authority in the United States therein or thereof having the power to taxtax (collectively, so “Withholding Taxes”), unless such deduction or withholding is required by law. In such event, the Company shall pay as additional Capital Payments, such additional amounts (the “Additional Amounts”) to the Class B Preferred Securityholders as may be necessary in order that the net amount amounts received by the Holder Class B Preferred Securityholders and the Trust Preferred Securityholders after such deduction or withholding for or on account of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will Withholding Taxes shall equal the amount amounts that otherwise would have been received under the Funding Note were had no such deduction or withholding been required; provided , provided, however, that no such Additional Amounts shall be required for or on account of:payable in respect of the Class B Preferred Securities
(ai) if and to the extent that the Company is unauthorized to pay because such payment would exceed the Distributable Profits of the Bank for the preceding fiscal year (after subtracting from such Distributable Profits the aggregate amount of the Capital Payments on the Class B Preferred Securities and any taxcapital payments or dividends on Preferred Tier I Securities, dutyif any, levy, assessment already paid on the basis of such Distributable Profits on or other governmental charge imposed prior to the date on which would not have been imposed but for such Additional Amounts shall be payable);
(ii) with respect to any Withholding Taxes that are payable by reason of a Holder or beneficial owner of Class B Preferred Securities (other than the Funding Note, Trust) having some connection with any Relevant Jurisdiction other than by reason only of the mere holding or beneficial ownership of Class B Preferred Securities;
(iii) with respect to any Withholding Taxes which are deducted or withheld pursuant to (i) having European Council Directive 2003/48/EC or any present other European Union Directive or former connection with Regulation implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income, or (ii) any international treaty or understanding entered into for the purpose of facilitating cooperation in the reporting and collection of savings income and to which (x) the United States, including, without limitation, being and (y) the European Union or having been Germany is a citizen or resident thereofparty, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt any provision of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessmentimplementing, or similar governmental charge;
(e) any taxcomplying with, dutyor introduced to conform with, levysuch Directive, assessment Regulation, treaty or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionsunderstanding; or
(hiv) to the extent such deduction or withholding can be avoided or reduced if the Holder or beneficial owner of Class B Preferred Securities makes a declaration of non-residence or other similar claim for exemption to the relevant tax authority or complies with any combination reasonable certification, documentation, information or other reporting requirement imposed by the relevant tax authority, provided, however, that the exclusion set forth in this clause (iv) shall not apply if certification, information, documentation or other reporting requirement would be materially more onerous (in form, procedure or substance of items (ainformation required to be disclosed), to the Holder or beneficial owner of Class B Preferred Securities than comparable information or other reporting requirements imposed under U.S. tax law, regulation and administrative practice (bsuch as IRS Forms W-8 and W-9), (c), (d), (e), (f) or (g) above.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Deutsche Bank Capital Funding Trust VIII)
Additional Amounts. If This Section 6.5 shall replace Section 1010 of the Funding Note Certificate provide Base Indenture with respect to the Notes only.
(a) Payments made by each Subsidiary Guarantor and each Future Guarantor that is a Foreign Subsidiary, if any, in respect of their respective Guarantees will be made free and clear of, and without deduction or withholding for, any Taxes, unless such Subsidiary Guarantor or Future Guarantor, as applicable, is required to deduct or withhold Taxes by applicable law.
(b) If, pursuant to Section 6.5(a), any Subsidiary Guarantor or any Future Guarantor that is a Foreign Subsidiary is required by applicable law to deduct or withhold any amount for or on account of Taxes from any payment made with respect to its Guarantee, such Subsidiary Guarantor or Future Guarantor shall pay such additional amounts as may be necessary so that the sum payable by such Subsidiary Guarantor or Future Guarantor is increased as necessary so that, after such deduction or withholding has been made, each Holder or beneficial owner of the Notes receives an amount equal to the sum it would have received had no such deduction or withholding been made (“Additional Amounts”); provided that no Additional Amounts will be payable with respect to Taxes:
(1) that are imposed as a result of the Holder or beneficial owner of the Notes being organized under the laws of, or having its principal office in, the jurisdiction imposing such Tax (or any political subdivision thereof);
(2) that are imposed as a result of a present or former connection between the Holder or beneficial owner of the Notes and the jurisdiction imposing such Tax;
(3) payable other than by withholding from payments in respect of the Guarantee of such Subsidiary Guarantor or Future Guarantor;
(4) that would not have been imposed but for the failure of the applicable recipient of such payment to comply with any certification, identification, information, documentation or other reporting requirement to the extent:
(A) such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes; and
(B) at least 30 days before the first payment date with respect to which such Additional Amounts or Taxes shall be payable, such Subsidiary Guarantor or Future Guarantor has notified such recipient in writing that such recipient is required to comply with such requirement;
(5) that are imposed or withheld pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the Notes (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code; or
(6) any combination of the foregoing subsections 6.5(b)(1) to 6.5(b)(5). All references in the Indenture to the payment of Additional Amounts, Global Funding agrees to pay to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or and premium, if any, and interest or premium on, the Notes (and similar phrases) or in respect of, the Funding Note any payment made by any Subsidiary Guarantor or the net proceeds received on the sale or exchange of the Funding Note, such reference any Future Guarantor that is a Foreign Subsidiary under its Guarantee shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such that context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference payable. Notwithstanding anything to the payment of Additional Amounts contrary in the Indenture, in no event shall the Issuer, the Parent Guarantors, or any provision of the Funding Note Indenture shall not Future Guarantor that is a Domestic Subsidiary be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides obligated, directly or indirectly, for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) aboveany.
Appears in 1 contract
Sources: First Supplemental Indenture (Americold Realty Trust)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any Guarantor under or with respect to the Notes or any Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future Taxes unless required by law. If the Funding 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 Taxes imposed by (i) any jurisdiction from or through which such payment is made or any political subdivision or Taxing Authority thereof or therein or (ii) any other jurisdiction in which the Issuer or any Guarantor is incorporated, organized or otherwise resident or doing business for tax purposes or any political subdivision or Taxing Authority thereof or therein (each of (i) and (ii), a “Relevant Taxing Jurisdiction”) from any payment made under or with respect to the Notes or under any Guarantee, the Issuer or such Guarantor, as the case may be, will pay (together with such payments) such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each beneficial owner of Notes after such withholding or deduction (including any withholding or deduction attributable to the Additional Amounts) will be not less than the amount the beneficial owner would have received if such Taxes had not been withheld or deducted.
(b) Neither the Issuer nor any Guarantor will, however, pay Additional Amounts to a Holder or beneficial owner of Notes in respect or on account of:
(1) any Tax, to the extent such Tax would not have been imposed or levied by a Relevant Taxing Jurisdiction, but for the existence of any present or former connection between the Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of power over the relevant Holder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company or corporation) and such Relevant Taxing Jurisdiction (including, without limitation, as a result of being a citizen or national of, or being resident or doing business for tax purposes, or maintaining a permanent establishment in, the Relevant Taxing Jurisdiction) (other than any connection arising solely from the acquisition, ownership, holding or disposition of the Notes, the receipt of payments under or with respect to such Notes or a Guarantee, or the exercise or enforcement of rights under or with respect to the Notes or any Guarantee);
(2) any Tax, to the extent such Tax is imposed or withheld by reason of the failure of the Holder or beneficial owner of Notes, following the Issuer’s written request addressed to the Holder or beneficial owner (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 30 days before the relevant date on which such withholding or deduction would be payable), to comply with any certification or identification requirements concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of such Holder or beneficial owner, whether required or imposed by statute, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction but in each case only to the extent such Holder or beneficial owner, as the case may be, is legally eligible to provide such certification;
(3) any estate, inheritance, gift, sales, transfer or similar Tax;
(4) any Tax that is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes or any Guarantee;
(5) any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of the Notes for payment on a date more than 30 days after the date on which such payment became due and payable or a the date on which payment thereof was duly provided for, whichever is later, except to the extent that the Holder or beneficial owner would have been entitled to Additional Amounts had the Note been presented for payment on any date during such 30-day period;
(6) any withholding or deduction which is 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 consultation draft issued by the Swiss Federal Council on April 3, 2020, or otherwise changing the Swiss Withholding Tax system from an issuer-based system to a paying agent-based system pursuant to which a person in Switzerland other than the Issuer or a Guarantor is required to withhold tax on any interest payments;
(7) any Tax that is imposed or levied 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;
(8) any Tax imposed on or with respect to any payment by the Issuer 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 material commercial or legal restriction to transferring the Notes to the beneficiary, partner or other beneficial owner and only to the extent such Tax is imposed more than 90 days after the Issuer notifies such Holder of the imposition of such Tax and requests the Holder to make such a transfer;
(9) any Taxes imposed pursuant to Sections 1471 to 1474 (inclusive) of the United States Internal Revenue Code of 1986, as of the Issue Date (or any successor version that is substantively comparable and not materially more onerous to comply with), including any current or future Treasury regulations or other official interpretations or guidance thereunder and any intergovernmental agreement (and related legislation, rules or practices) implementing the foregoing;
(10) any Taxes imposed pursuant to the Dutch Withholding Tax ▇▇▇ ▇▇▇▇ (Wet Bronbelasting 2021) as amended from time to time; or
(11) any combination of (1) through (10) above.
(c) The Issuer and each Guarantor, if they are applicable withholding agents, will (i) make any such withholding or deduction required by applicable law, and (ii) remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Issuer or any Guarantor will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case such notice will be provided promptly after such obligation arises but prior to such payment date), the Issuer will deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts will be payable and the amount so payable and will set forth such other information (other than the identities of Holders and beneficial owners) necessary to enable the Trustee or Paying Agent as the case may be, to pay such Additional Amounts to Holders on the relevant payment date. The Issuer will provide for the Trustee with documentation evidencing payment of such Additional Amounts. The Trustee shall have no further obligation with respect to the payment of the Additional AmountsAmounts other than to deliver the evidence of such payment to a Holder upon written request.
(e) The Issuer or any Guarantor, Global Funding agrees as applicable, will use all reasonable efforts to pay obtain certified copies of tax receipts evidencing the payment of Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Holder Trustee. If certified copies of such tax receipts are not reasonably obtainable, the Issuer or such Guarantor, as applicable, shall provide the Trustee other evidence of payment to the Trustee. Such certified copies or other evidence shall be made available to Holders upon written request. The Trustee shall have no obligation to inquire as to the efforts of the Funding Note Additional Amounts Issuer or any Guarantor to obtain certified copies of such tax receipts and shall have no further obligation with respect thereto other than to provide the tax receipts or other evidence to the Holders as provided herein.
(f) In addition, the Issuer will pay any present or future stamp, issue, registration, court, documentary excise or property Taxes, or other similar Taxes, imposed by any Relevant Taxing Jurisdiction in respect of the Funding receipt of any payment under or with respect to the Notes or any Guarantee, the execution, issue, delivery, or registration of the Notes, any Guarantee, this Indenture, or any other document or instrument referred to therein, and any such Taxes imposed by any jurisdiction as a result of, or in connection with, the enforcement of the Notes, any Guarantee, this Indenture or any other document or instrument following the occurrence of any Event of Default with respect to the Notes. Neither the Issuer nor any Guarantor will, however, pay such amounts that are imposed on or result from a sale or other transfer or disposition by a holder or beneficial owner of a Note Certificate. (other than the initial resale of the Notes by the Initial Purchaser).
(g) The preceding provisions will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor to the Issuer or any Guarantor and to any jurisdiction in which any such successor is incorporated, organized or otherwise resident or doing business for tax purposes, or any jurisdiction from or through which such any successor makes payment on the Notes or any Guarantee, and any political subdivision or Taxing Authority thereof or therein.
(h) Whenever in the Funding Note this Indenture there is mentionedrefers to, in any context, the payment of the principal ofprincipal, or premium, if any, interest or premium on, any other amount payable under or in with respect of, to the Funding Note or the net proceeds received on the sale or exchange of the Funding NoteNotes (including payments thereof made pursuant to any Guarantee), such reference shall be deemed to include reference to includes the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
Appears in 1 contract
Additional Amounts. If All payments made by the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received Issuer on the sale or exchange of the Funding this Senior Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided and all payments made by the terms established by the Funding Note Indenture or Bermuda Holdings pursuant to the Funding Note Indenture to Guarantee, shall be made without deduction or withholding, for or on account of, any and all present and future taxes, duties, assessments, or governmental charges of whatever nature unless the extent thatdeduction or withholding of such taxes, in such contextduties, Additional Amounts are, were assessments or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference governmental charges is not madethen required by law. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, any deduction or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or other governmental charges of whatever nature imposed the United Kingdom, Bermuda or levied on payments on any relevant jurisdiction or any political subdivision or taxing authority thereof or therein (the Funding Note by or on behalf "RELEVANT JURISDICTION") shall at any time be required in respect of any governmental authority amounts to be paid by the Issuer under this Senior Note or Bermuda Holdings under the Guarantee, the Issuer or Bermuda Holdings, as the case may be, shall pay or cease to be paid such additional amounts ("ADDITIONAL AMOUNTS") as may be necessary in the United States having the power to tax, so order that the net amount amounts received by the Holder a holder of the Funding Note, this Senior Note after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding requiredshall be not less than the amounts specified in this Senior Note to which the holder of this Senior Note is entitled; provided provided, however, that no such the Issuer __________________________ /5/ To be included in Senior Notes which are not Exchange Notes. /6/ To be included in Exchange Notes. or Bermuda Holdings, as applicable, shall not be required to make any payment of Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for (i) the existence of any present or former connection between such holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such holder, if such holder is an estate, nominee, trust, partnership or corporation), otherwise than merely by the holding of this Senior Note or the receipt of amounts payable in respect of this Senior Note, and any Relevant Jurisdiction or such holder being subject to the jurisdiction of any Relevant 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 being or having been present or engaged in trade or business therein or having had a permanent establishment therein or (ii) the presentation of any Funding this Senior Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes became due and payable or the date on which payment thereof is duly provided for, whichever occurs later, except to the extent that the holder would have been entitled to Additional Amounts had this Senior Note been presented on the last day of such period of 30 days;
(cb) any tax, duty, levy, assessment or other governmental charge which that is imposed or withheld solely by reason of the failure to comply by the holder of this Senior Note or, if different, the beneficial owner or a Holder of the Funding interest payable on this Senior Note with a timely request of the Issuer addressed to comply with certificationsuch holder or beneficial owner to provide information, identification documents or information reporting requirements other evidence concerning the nationality, residence, identity or connection with the United States taxing jurisdiction of such holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party taxing jurisdiction as a condition precondition to exemption from all or part of such tax, duty, levy, assessment or other governmental charge;
(dc) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of Definitive Senior Notes issued at the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) request of the Code for United States Federal income tax purposes provided that such treatment was described in holder (including on or after the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for occurrence of an election by the Holder Event of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionsDefault); or
(hd) any combination of items (a), (b), ) and (c), (d), (e), (f) or (g) above; nor shall Additional Amounts be paid with respect to any payment of the principal of, or any interest on, this Senior Note to any holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary or member of such partnership or beneficial owner would not have been entitled to any Additional Amounts had such beneficiary, settlor, member or beneficial owner been the holder of this Senior Note.
Appears in 1 contract
Additional Amounts. If (a) All payments made by or on behalf of the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuer or any Guarantor (each a “Payor”) under or with respect to the Holder Notes or any Note Guarantee will be made free and clear of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxesTaxes, duties, levies, assessments unless such Payor is required to withhold or governmental charges deduct Taxes by law or by the interpretation or administration thereof. If a Payor is so required to withhold or deduct any amount for or on account of whatever nature Taxes imposed or levied on payments on the Funding Note by or on behalf of any governmental authority jurisdiction in which such Payor is organized, resident or carrying on business for tax purposes or from or through which such Payor makes any payment on the United States having Notes or any Note Guarantee or any department or political subdivision thereof (each, a “Relevant Taxing Jurisdiction”) from any payment made under or with respect to the power Notes or any Note Guarantee, such Payor, subject to taxthe exceptions stated below, so will pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received in respect of such payment by the each Holder of the Funding Note, or Beneficial Holder after giving effect to such withholding or deduction, whether deduction (including withholding or deduction attributable to Additional Amounts payable hereunder but excluding Taxes on net income) will not currently payable, will equal be less than the amount that the Holder or Beneficial Holder, as the case may be, would have received if such Taxes had not been received under the Funding Note were no such deduction required to be so withheld or withholding required; provided that no such deducted.
(b) A Payor will not, however, pay Additional Amounts shall be required for to a Holder or on account ofBeneficial Holder with respect to:
(a1) any tax, duty, levy, assessment or other governmental charge Canadian withholding Taxes imposed which would not have been imposed but for on a payment to a Holder or beneficial owner Beneficial Holder with which the Payor does not deal at arm’s length for the purposes of the Funding Note, Tax Act at the time of making such payment (i) having other than where the non-arm’s length relationship arises as a result of the exercise or enforcement of rights under any present Notes or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having any Note Guarantee);
(or having had2) a permanent establishment debt or principal office therein, (ii) being other obligation to pay an amount to a controlled foreign corporation person with whom the applicable Payor is not dealing at arm’s length within the meaning of Section 957(a) the Tax Act (other than where the non-arm’s length relationship arises as a result of the Code related exercise or enforcement of rights under any Notes or any Note Guarantee);
(3) any Canadian withholding Taxes imposed on a payment or deemed payment to a Holder or Beneficial Holder by reason of such Holder or Beneficial Holder being a “specified shareholder” of the Issuer (within the meaning of Section 864(d)(4subsection 18(5) of the CodeTax Act) at the time of payment or deemed payment, to or by reason of such Holder or Beneficial Holder not dealing at arm’s length for the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more Tax Act with a “specified shareholder” of the total combined voting power Issuer at the time of all classes of stock payment or deemed payment (other than where the Holder or Beneficial Holder is a “specified shareholder,” or does not deal at arm’s length with a “specified shareholder,” as a result of the Funding Agreement Provider entitled to vote within the meaning exercise or enforcement of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder rights under any Notes or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Noteany Note Guarantee);
(b4) any tax, duty, levy, assessment or other governmental charge which Taxes giving rise to such Additional Amounts that would not have been imposed but for the presentation existence of any Funding present or former connection between such Holder (or the Beneficial Holder of, or person ultimately entitled to obtain an interest in, such Notes, including a fiduciary, settler, beneficiary, member, partner, shareholder or other equity interest owner of, or possessor of power over, such Holder or Beneficial Holder, if such Holder or Beneficial Holder is an estate, trust, partnership, limited liability company, corporation or other entity) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, the Relevant Taxing Jurisdiction but not including any connection resulting solely from the acquisition, ownership, or disposition of Notes, the receipt of payments thereunder and/or the exercise or enforcement of rights under any Notes or any Note Guarantee);
(5) Taxes giving rise to such Additional Amounts that would not have been imposed but for the failure of such Holder or Beneficial Holder, to the extent such Holder or Beneficial Holder is legally eligible to do so, to timely satisfy any certification, identification, information, documentation or other reporting requirements concerning such Holder’s or Beneficial Holder’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction or arm’s length relationship with the Payor or otherwise establish the right to the benefit of an exemption from, or reduction in the rate of, withholding or deduction, if such compliance is required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or Beneficial Holder is not resident in the Relevant Taxing Jurisdiction);
(6) any estate, inheritance, gift, sales, transfer, personal property, excise or any similar Taxes or assessment;
(7) any Taxes that were imposed with respect to any payment on a Note to any Holder who is a fiduciary or partnership or person other than the sole beneficial owner of such payment and to the extent the Taxes giving rise to 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 Note;
(8) Taxes imposed on, or deducted or withheld from, payments in respect of the Notes if such payments could have been made without such imposition, deduction or withholding of such Taxes had such Notes been presented for payment (where presentation is required) for payment on a date more than within 30 days after the date on which such payment becomes payments or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever occurs lateris later (except to the extent such Holder or Beneficial Holder would have been entitled to such Additional Amounts had such Notes been presented on the last day of such 30 day period);
(c9) any tax, duty, levy, assessment or other governmental charge Tax which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes or any Note Guarantee;
(10) any Taxes that are imposed or withheld as a result of the presentation of any Note for payment by or on behalf of a Holder or Beneficial Holder who would have been able to avoid such withholding or deduction by presenting the relevant Note to another paying agent;
(11) any Taxes imposed under FATCA; or
(12) any combination of the foregoing subclauses (1) through (11).
(c) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or any Note Guarantee is due and payable, if a Payor will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 35th day prior to the date on which such payment is due and payable, in which case it will be promptly thereafter), the Payor will deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders and/or Beneficial Holders on the payment date.
(d) The Issuer will indemnify and hold harmless the Holders and Beneficial Holders of the Notes for the amount of any Taxes under Regulation 803 of the Tax Act, or any similar or successor provision (other than Taxes described in subclauses (1) through (12) above (but including, notwithstanding subclause (9), any Taxes payable pursuant to Regulation 803 of the Tax Act) or Taxes arising by reason of a transfer of the Note to a person resident in Canada with whom the transferor does not deal at arm’s length for the purposes of the Tax Act except where such non-arm’s length relationship arises as a result of the exercise or enforcement of rights under any Notes or any Note Guarantee) levied or imposed on and paid by such a Holder or Beneficial Holder as a result of payments made under or with respect to the Notes or any Note Guarantee.
(e) In addition, the Payor will pay any stamp, issue, registration, court, documentation, excise or other similar taxes, charges and duties, including any interest, penalties and any similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction at any time in respect of the Funding Note;execution, issuance, registration, delivery or enforcement of the Notes (other than on or in connection with a transfer of the Notes other than the initial sale by an Initial Purchaser), any Note Guarantee or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any Relevant Taxing Jurisdiction on any payments made pursuant to the Notes or any Note Guarantee and/or any other such document or instrument (limited, solely in the case of taxes, charges or duties attributable to any payments with respect thereto, to any such taxes, charges or duties imposed in a Relevant Taxing Jurisdiction that are not excluded under Sections 4.21(b)(5) through (8) and (10) and (11)).
(f) The obligations under this Section 4.21 will survive any taxtermination, duty, levy, assessment defeasance or other governmental charge imposed by reason discharge of payments on the Funding Note being treated as contingent interest described this Indenture and will apply mutatis mutandis to any successor Person to any Payor and to any jurisdiction in Section 871(h)(4) of the Code which such successor is organized or is otherwise resident or doing business for United States Federal income tax purposes provided that or any jurisdiction from or through which payment is made by such treatment was described successor or its respective agents. Whenever this Indenture refers to, in any context, the Pricing Supplement;
(g) payment of principal, premium, if any, interest or any tax, duty, levy, assessment other amount payable under or other governmental charge that would not have been imposed but for an election by the Holder of the Funding with respect to any Note, such reference shall include the effect payment of which is to make payment in respect of the Funding Note subject to United States Federal income tax Additional Amounts or withholding tax provisions; or
(h) any combination of items (a)indemnification payments as described hereunder, (b), (c), (d), (e), (f) or (g) aboveif applicable.
Appears in 1 contract
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder Notes will be made free and clear of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on payments on the Funding Note by or on behalf of any governmental authority jurisdiction in which any Issuer is organized or is a resident for tax purposes or from or through which any of the United States having foregoing makes any payment on the power Notes or by or within any department or political subdivision thereof (each, a “Relevant Taxing Jurisdiction”), unless such Issuer is required to taxwithhold or deduct Taxes by law or by the interpretation or administration of law. If an Issuer is required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, so such Issuer will pay additional amounts in cash (“Additional Amounts”) as may be necessary to ensure that the net amount received by the each Holder of the Funding Note, Notes after giving effect to such withholding or deduction, whether deduction (including withholding or deduction attributable to Additional Amounts payable hereunder) will not currently payable, will equal be less than the amount that the Holder would have received if such Taxes had not been received under withheld or deducted.
(b) Notwithstanding the Funding Note were no such deduction foregoing, none of the Issuers will pay Additional Amounts to a Holder or withholding required; provided that no beneficial owner of Notes:
(i) to the extent the Taxes giving rise to such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder the Holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with the United StatesRelevant Taxing Jurisdiction (other than a connection arising by reason of the acquisition, ownership, holding or Disposition of the Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes or the Indenture);
(ii) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the failure of the Holder or beneficial owner of Notes, following any Issuer’s written request addressed to the Holder, to the extent such Holder or beneficial owner is legally entitled to do so, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, being a certification that the Holder or having been a citizen or beneficial owner is not resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, Relevant Taxing Jurisdiction);
(iii) being a bank for United States Federal income tax purposes whose receipt in respect of interest on the Funding Note is described in Section 881(c)(3)(A) any Tax imposed or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder indenture (or any amended or successor version of such sections that is substantively comparable), current or future Treasury Regulations issued thereunder or any official interpretation thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Funding NoteCode as of the date of the indenture (or any amended or successor version described above), and any intergovernmental agreement (or related governmental regulations, rules or official administrative practices) implementing the foregoing;
(biv) with respect to any taxestate, dutyinheritance, levygift, assessment sales, transfer or personal property tax or any similar Taxes;
(v) if such Holder is a fiduciary or partnership or person other governmental charge which than the sole beneficial owner of such payment and the Taxes giving rise to such Additional Amounts would not have been imposed on such payment had such Holder been the beneficiary, partner or sole beneficial owner, as the case may be, of such Note (but only if there is no material cost or expense associated with transferring such Note 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);
(vi) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the presentation by the holder of any Funding Note (Note, where presentation is required) , for payment on a date more than 30 days after the date on which such payment becomes became due and payable or the date on which payment thereof is duly provided for, for whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.and
Appears in 1 contract
Sources: Indenture (Difl Us Ii LLC)
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder of Notes or that the Funding Note Additional Amounts as provided in Guarantors make under or with respect to the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guarantees shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments on the Funding Note by or on behalf of any jurisdiction (other than the United States, any state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, resident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the Paying Agent) makes any payment on this Note or by or within any department, political subdivision or governmental authority of or in any of the United States foregoing having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless such Issuer or Guarantor or other applicable withholding agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If either Issuer, a Guarantor or other applicable withholding agent is required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to this Note or any Guarantee, such Issuer or Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder each beneficial owner of the Funding NoteNotes, after giving effect to such withholding or deduction, whether deduction (including any withholding or deduction in respect of any Additional Amounts) will not currently payable, will equal be less than the amount that the beneficial owner would have received if such Taxes had not been received under withheld or deducted.
(b) None of the Funding Note were no such deduction Issuers or withholding required; provided that no such Guarantors will, however, pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes, duty, levy, assessment to the extent such Taxes are imposed or other governmental charge imposed which would not have been imposed but for levied by a Holder Relevant Taxing Jurisdiction by reason of the Holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with such Relevant Taxing Jurisdiction (other than the United Statesmere receipt, includingownership, without limitation, being holding or having been a citizen or resident thereofdisposition of this Note, or having been presentby reason of the receipt of any payments in respect of any Notes or any Guarantee, having been incorporated in, having engaged in a trade or business the exercise or having (enforcement of rights under any Notes or having had) a permanent establishment or principal office therein, any Guarantee);
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any Taxes to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which extent such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is Taxes are imposed or withheld solely by reason of the failure of the Holder or beneficial owner of this Note, following the Issuers’ written request addressed to the Holder or a Holder of the Funding Note beneficial owner, to comply with any certification, identification identification, information or information other reporting requirements concerning (to the nationality, residence, identity extent such holder or connection with the United States of the beneficial owner or a Holder of the Funding Noteis legally eligible to do so), if compliance is whether required by statute, by treaty, regulation of the United States Treasury Department, judicial or administrative interpretationpractice of a Relevant Taxing Jurisdiction, other law or by an applicable income tax treaty to which the United States is a party as a condition precondition to exemption from from, or reduction in the rate of deduction or withholding of, such taxTaxes imposed by the Relevant Taxing Jurisdiction (including, dutywithout limitation, levy, assessment a certification that the Holder or other governmental chargebeneficial owner is not resident in the Relevant Taxing Jurisdiction);
(diii) any estate, inheritance, gift, estatesales, transfer, personal property, sales, transfer property or similar tax, duty, levy, assessment, or similar governmental chargeTaxes;
(eiv) any tax, duty, levy, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding from payments in made under or with respect of the Funding Noteto this Note or any Guarantee;
(fv) any tax, duty, levy, assessment Tax imposed on or other governmental charge imposed with respect to any payment by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) any of the Code for United States Federal income tax purposes provided Issuers or Guarantors 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 such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but on such payment had such beneficial owner been the holder of such Note;
(vi) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union or the United Kingdom;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for an election by payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had this Note been presented on the last day of such 30-day period);
(viii) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Funding NoteInternal Revenue Code of 1986 as of the August 2019 Issue Date (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 or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 1471(b)(1) of the effect Internal Revenue Code of which is to make payment 1986 as of the August 2019 Issue Date (or any amended or successor version described above), and including (for the avoidance of doubt) any intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionsforegoing; or
(hix) any combination of items the foregoing.
(ac) The Issuers and the Guarantors, if the applicable withholding agents, shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to this Note or any Guarantee is due and payable, if the Issuers or any Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to this Note or any Guarantee is due and payable, in which case it will be promptly thereafter), the Issuers shall deliver to the Trustee, with a copy to the Paying Agent, an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 of the Indenture stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (bi) the execution, issue, delivery or registration of this Note or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, this Note or any Guarantee. Upon written request, any of the Issuers or a Guarantor will furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or such Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02 of the Indenture, in such form as provided in the normal course by the taxing authority imposing such Taxes. If, notwithstanding the efforts of such Issuer or Guarantor to obtain such receipts, the same are not obtainable, such Issuer or such Guarantor will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee such information as may be reasonably available to such Issuers and the Guarantors (and not otherwise in the possession of the Trustee) to enable the determination of the amount of any withholding taxes attributable to any particular Holder(s).
(e) Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to this or any other Note (including payments thereof made pursuant to a Guarantee), (c)such reference includes the payment of Additional Amounts, (d), (e), if applicable.
(f) This paragraph 2 will survive any termination, defeasance or discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction (gother than the United States, any state thereof or the District of Columbia) abovein which any successor Person to any of the Issuers or Guarantors is organized, resident or doing business for tax purposes or any jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on this or any other Note (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to tax.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder of Notes or that the Funding Note Additional Amounts as provided in Guarantors make under or with respect to the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guarantees shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments on the Funding Note by or on behalf of any jurisdiction (other than the United States, any state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, resident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the Paying Agent) makes any payment on this Note or by or within any department, political subdivision or governmental authority of or in any of the United States foregoing having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless such Issuer or Guarantor or other applicable withholding agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If an Issuer, Guarantor or other applicable withholding agent is required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to this Note or any Guarantee, such Issuer or Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder each beneficial owner of the Funding NoteNotes, after giving effect to such withholding or deduction, whether deduction (including any withholding or deduction in respect of any Additional Amounts) will not currently payable, will equal be less than the amount that the beneficial owner would have received if such Taxes had not been received under withheld or deducted.
(b) None of the Funding Note were no such deduction Issuers or withholding required; provided that no such Guarantors will, however, pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes, duty, levy, assessment to the extent such Taxes are imposed or other governmental charge imposed which would not have been imposed but for levied by a Holder Relevant Taxing Jurisdiction by reason of the Holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with such Relevant Taxing Jurisdiction (other than the United Statesmere receipt, includingownership, without limitation, being holding or having been a citizen or resident thereofdisposition of this Note, or having been presentby reason of the receipt of any payments in respect of any Notes or any Guarantee, having been incorporated in, having engaged in a trade or business the exercise or having (enforcement of rights under any Notes or having had) a permanent establishment or principal office therein, any Guarantee);
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any Taxes to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which extent such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is Taxes are imposed or withheld solely by reason of the failure of the Holder or beneficial owner of this Note, following the Issuers’ written request addressed to the Holder or a Holder of the Funding Note beneficial owner, to comply with any certification, identification identification, information or information other reporting requirements concerning (to the nationality, residence, identity extent such holder or connection with the United States of the beneficial owner or a Holder of the Funding Noteis legally eligible to do so), if compliance is whether required by statute, by treaty, regulation of the United States Treasury Department, judicial or administrative interpretationpractice of a Relevant Taxing Jurisdiction, other law or by an applicable income tax treaty to which the United States is a party as a condition precondition to exemption from from, or reduction in the rate of deduction or withholding of, such taxTaxes imposed by the Relevant Taxing Jurisdiction (including, dutywithout limitation, levy, assessment a certification that the Holder or other governmental chargebeneficial owner is not resident in the Relevant Taxing Jurisdiction);
(diii) any estate, inheritance, gift, estatesales, transfer, personal property, sales, transfer property or similar tax, duty, levy, assessment, or similar governmental chargeTaxes;
(eiv) any tax, duty, levy, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding from payments in made under or with respect of the Funding Noteto this Note or any Guarantee;
(fv) any tax, duty, levy, assessment Tax imposed on or other governmental charge imposed with respect to any payment by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) any of the Code for United States Federal income tax purposes provided Issuers or Guarantors 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 such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but on such payment had such beneficial owner been the holder of such Note;
(vi) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for an election by payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had this Note been presented on the last day of such 30-day period);
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC, as amended or supplemented from time to time, including through European Council Directive 2014/48/EC or any other Directive implementing the conclusions of the Funding NoteECOFIN Council meetings of November 26 and 27, 2000 on the effect taxation of which savings income or any law implementing or complying with, or introduced in order to conform to, any such Directive;
(ix) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or any amended or successor version that is substantively comparable and not materially more onerous to make payment comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 1471(b)(1) of the Internal Revenue Code of 1986 as of the Issue Date (or any amended or successor version described above), and including (for the avoidance of doubt) any intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionsforegoing; or
(hx) any combination of items the foregoing.
(ac) The Issuers and the Guarantors, if the applicable withholding agent, shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to this Note or any Guarantee is due and payable, if the Issuers or any Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to this Note or any Guarantee is due and payable, in which case it will be promptly thereafter), the Issuers shall deliver to the Trustee, with a copy to the Paying Agent, an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 of the Indenture stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (bi) the execution, issue, delivery or registration of this Note or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, this Note or any Guarantee. Upon written request, any of the Issuers or a Guarantor will furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or such Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02 of the Indenture, in such form as provided in the normal course by the taxing authority imposing such Taxes. If, notwithstanding the efforts of such Issuer or Guarantor to obtain such receipts, the same are not obtainable, such Issuer or such Guarantor will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee such information as may be reasonably available to such Issuers and the Guarantors (and not otherwise in the possession of the Trustee) to enable the determination of the amount of any withholding taxes attributable to any particular Holder(s).
(e) Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to this or any other Note (including payments thereof made pursuant to a Guarantee), (c)such reference includes the payment of Additional Amounts, (d), (e), if applicable.
(f) The preceding provisions will survive any termination, defeasance or discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction (gother than the United States, any state thereof or the District of Columbia) abovein which any successor Person to any of the Issuers or Guarantors is organized, resident or doing business for tax purposes or any jurisdiction from or through which any such person (or its agents, including the Paying Agent)makes any payment on this or any other Note (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to tax.
Appears in 1 contract
Additional Amounts. (a) All amounts paid or credited by the Company under or with respect to the Notes will be made net of any withholding or deduction for or on account of any present or future Taxes imposed or levied by or on behalf of the government of Canada, any province or territory of Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or any jurisdiction in which the Company is organized, resident, or doing business for tax purposes, or from or through which the Company (or its agents) makes any payment on the Notes, or any taxing authority thereof, and the Company will not be required to pay any additional amounts to Holders in respect of any Taxes to the extent that such Taxes at any time become payable.
(b) All payments made by or on behalf of any Guarantor (each such payor, a “Payor”) under or with respect to any Note Guarantee, are required to be made free and clear of and without withholding or deduction for or on account of any present or future Taxes imposed or levied by or on behalf of the government of Canada, any province or territory of Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which such Guarantor is organized, is carrying on business in for tax purposes, or is otherwise resident for tax purposes or any jurisdiction from or through which payment is made (including the jurisdiction of any paying agent) (each, a “Relevant Taxing Jurisdiction”), unless such Payor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(c) If any Payor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to a Note Guarantee, such Payor will be required to pay such additional amounts (“Additional Amounts”) as may be necessary so that the Funding net amount received by a Holder or a Beneficial Holder of Notes (including Additional Amounts) after such withholding or deduction will not be less than the amount such Holder or Beneficial Holder of Notes would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to any Taxes payable by virtue of: (1) the applicable Payor does not deal at arm’s length (within the meaning of the Tax Act) with such Holder or Beneficial Holder at the time of the payment; (2) such Holder or Beneficial Holder being either (a) a “specified non-resident shareholder” of the Company or a relevant Guarantor or (b) a non-resident person who does not deal at arm’s length with a specified shareholder of the Company or a Guarantor, in each case for purposes of subsection 18(5) of the Tax Act; (3) any connection between such Holder or Beneficial Holder of Notes and the Relevant Taxing Jurisdiction other than a connection resulting from the mere acquisition, ownership, holding or disposition of, or the enforcement of rights under or the receipt of payments in respect of, any Notes or Note Certificate provide Guarantees or beneficial interests therein; (4) such Holder or Beneficial Holder failing to duly and timely comply (where such Holder or Beneficial Holder is legally eligible to do so) with a timely request of the Company to comply with information, documentation, certification or other evidentiary requirements concerning such Holder’s or Beneficial Holder’s nationality, residence, entitlement to treaty benefits, identity or connection with the Relevant Taxing Jurisdiction, if and to the extent that due and timely compliance with such request would have resulted in the reduction or elimination of any Taxes as to which Additional Amounts would have otherwise been payable to such Holder or Beneficial Holder of Notes but for this clause (4), and provided that the Company provides written notice of such requirement to the applicable Holder or Beneficial Holder of at least thirty (30) days prior to the date of the payment in respect of which Additional AmountsAmounts would be payable; (5) such Holder or Beneficial Holder being a fiduciary, Global Funding agrees to pay a partnership or not the beneficial owner of any payment on a Note, if and to the Holder extent that, as a result of an applicable tax treaty, no Additional Amounts would have been payable had the 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 such beneficiary, partner or beneficial owner); (6) such Tax being an estate inheritance, gift, sales, transfer or personal property Tax or any similar Tax with respect to a Note, or (7) any combination of the Funding Note Additional Amounts as provided foregoing clauses (1) to (6), (any Taxes, other than Taxes described in the Funding Note Certificateforegoing clauses (1) through (7) above, being “Indemnified Taxes”).
(d) The applicable Payor shall make any required withholding or deduction and remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. Whenever in Upon request, the Funding Note Indenture there is mentioned, in any context, Company shall provide the Trustee with official receipts or other documentation evidencing the payment of the principal ofTaxes with respect to which Additional Amounts are paid. Each Guarantor will indemnify and hold harmless each Holder and Beneficial Holder for the amount of (1) any Indemnified Taxes not withheld or deducted by such Guarantor and levied or imposed and paid by such Holder or Beneficial Holder as a result of payments made under or with respect to the Note Guarantees, (2) any liability (including penalties, interest and expenses) arising therefrom or interest with respect thereto, and (3) any Indemnified Taxes imposed with respect to any reimbursement under Section 2.13(c)(1) or premium onSection 2.13(c)(2) above.
(e) If a Payor is or will become obligated to pay Additional Amounts under or with respect to any payment made on a Note Guarantee, then at least thirty (30) days prior to the date of such payment (or, if such obligation to pay Additional Amounts arises shortly before or in respect ofafter the 30th day prior to such date, promptly after the Funding Note or date that the net proceeds received obligation to pay Additional Amount arises), such Payor will deliver to the Trustee an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts to Holders on the sale relevant payment date.
(f) Whenever in this Indenture there is mentioned in any context: (1) the payment of principal; (2) redemption prices or exchange purchase prices in connection with a redemption or purchase of Notes; (3) interest; or (4) any other amount payable on or with respect to any of the Funding NoteNotes or any Note Guarantee, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture as described under this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;.
(g) The obligations described under this heading will survive any taxtermination, duty, levy, assessment defeasance or other governmental charge that would not have been imposed but for discharge of this Indenture and any transfer by an election by the applicable Holder or Beneficial Holder of Notes to another applicable Holder or Beneficial Holder, and will apply, mutatis mutandis, to any jurisdiction in which any successor to the Funding NoteCompany or any Guarantor is incorporated, the effect of engaged in business for tax purposes or resident for tax purposes, or any jurisdiction from or through which is to make such successor makes any payment on a Note Guarantee and, in respect of the Funding Note subject to United States Federal income tax each case, any department or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) political subdivision thereof or (g) abovetherein.
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Additional Amounts. (a) All payments made by or on behalf of the Issuer under or with respect to the Senior Secured Notes (whether or not in the form of Definitive Registered Notes) or any of the Guarantors with respect to any Senior Secured Notes Guarantee 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 any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction in which the Issuer or any Guarantor is then incorporated or organized, or otherwise resident for tax purposes or any political subdivision thereof or therein or (2) any jurisdiction from or through which payment is made by or on behalf of the Issuer or any Guarantor (including the jurisdiction of any Paying Agent) or any political subdivision thereof or therein (each, a “Tax Jurisdiction”) 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 Senior Secured Notes or any of the Guarantors under or with respect to any Senior Secured Notes Guarantee, including payments of principal, redemption price, purchase price, interest or premium, the Issuer or the relevant Guarantor, as applicable, will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by each Holder after such withholding, deduction or imposition (including any such withholding, deduction or imposition from such Additional Amounts) will equal the respective amounts that would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts will be payable with respect to:
(1) any Taxes that would not have been imposed but for the existence of any actual or deemed (pursuant to applicable Tax law of the relevant Tax Jurisdiction, such as, if applicable, a connection of a partnership that is attributed to the partners/beneficial owners) present or former connection between the Holder or the beneficial owner of the Senior Secured Notes and the relevant Tax Jurisdiction (including being a resident of such jurisdiction for Tax purposes), other than the holding of such Senior Secured Note, the enforcement of rights under such Senior Secured Note or under a Senior Secured Notes Guarantee or the receipt of any payments in respect of such Senior Secured Note or a Senior Secured Notes Guarantee;
(2) any Taxes imposed as a result of the presentation of a Senior Secured 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 Senior Secured Note been presented on the last day of such 30 day period);
(3) any estate, inheritance, gift, sales, personal property, transfer or similar Taxes;
(4) any Taxes withheld, deducted or imposed on a payment to 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 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;
(5) Taxes imposed on or with respect to a payment made to a Holder or beneficial owner of Senior Secured Notes who would have been able to avoid such withholding or deduction by presenting the relevant Senior Secured 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 Senior Secured Notes or with respect to any Senior Secured Notes Guarantee;
(7) any Taxes imposed or withheld by reason of the failure of the Holder or beneficial owner of Senior Secured Notes, to comply with any reasonable written request of the Issuer addressed to the Holder and made at least 60 days before any such withholding or deduction would be payable to satisfy 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 entitled to provide such certification or documentation;
(8) any Tax imposed on or with respect to any payment by the Issuer or the relevant 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 such Holder been the sole beneficial owner of such Senior Secured Notes; or
(9) any combination of items (1) through (8) above.
(b) In addition to Section 2.13(a), the Issuer and the Guarantors will also pay and indemnify the Holder for any present or future stamp, issue, registration, court or documentary taxes, or any other excise or property taxes, charges or similar levies (including penalties, interest and any other reasonable expenses related thereto) which are levied by any Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Senior Secured Notes, this Indenture, any Senior Secured Notes 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 Senior Secured Notes or any Senior Secured Notes Guarantee (other than on or in connection with a transfer of the Senior Secured Notes other than the initial resale of the Senior Secured Notes by the Initial Purchasers).
(c) If the Funding Note 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 Senior Secured Notes or any Senior Secured Notes 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 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(s) must also set forth any other information necessary to enable the Paying Agent to pay such Additional Amounts to Holders on the relevant payment date. The Issuer and the relevant Guarantor will provide for the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts, Global Funding agrees . The Trustee shall be entitled to pay rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary.
(d) The Issuer or the relevant Guarantor will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the Holder 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, within 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 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. Upon reasonable request, copies of Tax receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Senior Secured Notes.
(e) Whenever in the Funding Note this Indenture there is mentioned, in any context, the payment of amounts based upon the principal ofamount of the Senior Secured Notes or of principal, interest or of any other amount payable under, or interest or premium onwith respect to, or in respect of, the Funding Note or the net proceeds received on the sale or exchange any of the Funding NoteSenior Secured Notes or any Senior Secured Notes Guarantee, such reference mention shall be deemed to include reference to mention of the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:thereof.
(af) The obligations in this Section 2.13 will survive any taxtermination, dutydefeasance or discharge of this Indenture, levy, assessment or other governmental charge imposed which would not have been imposed but for any transfer by a Holder or beneficial owner of its Senior Secured Notes, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Funding NoteIssuer or any Guarantor is incorporated, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having otherwise resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Senior Secured Notes (or having hadany Senior Secured Notes Guarantee) a permanent establishment and any department or principal office political subdivision thereof or therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
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Sources: Senior Secured Notes Indenture
Additional Amounts. If At least 30 days prior to each date on which payment of principal, premium, if any, or interest or other amounts on the Funding Note Notes is to be made (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer, any Guarantor or other applicable withholding agent will be obligated to pay Additional Amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”) with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide for the Trustee with documentation evidencing the payment of such Additional Amounts, Global Funding agrees to pay . Copies of such documentation shall be made available to the Holder Holders upon request. The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.12. The Issuer will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copy to the Trustee. If the Issuer or the Guarantors conduct business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, are required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply to such Holders as if references in such provision to “Taxes” included taxes imposed by way of deduction or withholding by any such Additional Taxing Jurisdiction (or any political subdivision thereof or taxing authority therein). The Issuer will pay any present stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in the United States (or any political subdivision thereof or therein) from the execution, delivery and registration of Notes upon original issuance and initial resale of the Funding Notes or any other document or instrument referred to therein, or in connection with the enforcement of the Notes or any Note Additional Amounts Guarantee or any other document or instrument referred to therein. If at any time the Issuer changes its place of organization to outside of the United States or there is a new issuer organized outside of the United States, the Issuer or new issuer, as provided 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 Funding Note Certificatejurisdiction in which the Issuer or new issuer is organized (or any political subdivision thereof or therein) and are payable by the Holders of the Notes in respect of the Notes or any other document or instrument referred to therein under any law, rule or regulation in effect at the time of such change. The foregoing obligations of this Section 4.12 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Issuer or the Guarantors. Whenever in this Indenture or in the Funding Note Indenture Notes there is mentioned, in any context, the payment of the principal ofprincipal, premium or interest, if any, or interest any other amount payable under or premium on, or in with respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding to any Note, such reference mention shall be deemed to include reference to mention of the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
Appears in 1 contract
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder of Securities or that the Funding Note Additional Amounts as provided in Guarantors make under or with respect to the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guaranties shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on payments on the Funding Note by or on behalf of (1) any governmental authority in political subdivision or Governmental Authority thereof or therein having power to tax, (2) any jurisdiction from or through which payment on the United States Securities or the relevant Guaranty is made on behalf of the Issuers or any Guarantor, or any political subdivision or Governmental Authority thereof or therein having the power to tax, or (3) any other jurisdiction in which the Issuers or any Guarantor is organized or resident, or any political or Governmental Authority thereof or therein having the power to tax (each of clauses (1), (2) and (3), a “Relevant Taxing Jurisdiction”), unless the Issuers or such Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If the Issuers or a Guarantor is required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Securities, the Issuers or the Guarantor, as the case may be, shall, subject to the exceptions set forth in Section 2.19(b), pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by each Holder of the Securities after such withholding or deduction (including withholding or deduction attributable to Additional Amounts payable hereunder) shall not be less than the amount the Holder would have received if such Taxes had not been withheld or deducted.
(b) Neither the Issuers nor any Guarantor will, however, be required to pay Additional Amounts to a Holder or beneficial owner of a Security:
(1) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the Holder’s or beneficial owner’s present or former connection with the Relevant Taxing Jurisdiction (other than the acquisition, ownership, holding or disposition of a Security or by reason of the receipt of payments thereunder or under any Guaranty or the exercise or enforcement of rights under any Securities or this Indenture or under any Guaranty);
(2) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the failure of the Holder or beneficial owner of Securities, following the Issuers’ written request addressed to the Holder, to the extent such Holder or beneficial owner is legally entitled to do so, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(3) with respect to any estate, inheritance, gift, sales, transfer or personal property tax or any similar Taxes (other than stamp, issue, registration, court, documentation, excise or other similar Taxes referred to in Section 2.19(f));
(4) if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment and the Taxes giving rise to such Additional Amounts would not have been imposed on such payment had such 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);
(5) with respect to any Taxes that are payable otherwise than by deduction or withholding from payments on, or in respect of, the applicable Security or Guaranty;
(6) with respect to any Taxes imposed on amounts payable to such Holder or beneficial owner at the time such Holder becomes a party to this Indenture, except to the extent that such Holder’s transferor or assignor (if any) was entitled, at the time of assignment, to receive Additional Amounts with respect to such Taxes pursuant to Section 2.19(a); and
(7) with respect to any combination of the items listed above.
(c) The Issuers and the Guarantors will (1) make such withholding or deduction required by applicable law and (2) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Issuers and the Guarantors will provide to the Trustee either a certified copy of tax receipts evidencing such payment or, if such tax receipts are not reasonably available to the Issuers or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Issuers or such Guarantor.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Issuers or the Guarantors shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Securities is due and payable, in which case it shall be promptly thereafter), the Issuers shall deliver to the Trustee an Officers’ Certificate stating that such Additional Amounts shall be payable and the amounts so payable and shall set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date. The Issuers and the Guarantors shall promptly publish a notice in accordance with Section 12.2 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts.
(e) The Issuers and the Guarantors, jointly and severally, shall indemnify and hold harmless the Holders of Securities, and, upon written request of any Holder of Securities, reimburse such Holder for the amount of (1) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by such Holder in connection with payments made under or with respect to the Securities held by such Holder or any Guaranties; and (2) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (1) or this clause (2), so that the net amount received by such Holder after such reimbursement shall not be less than the net amount such Holder would have received if the Taxes giving rise to the reimbursement described in clauses (1) and/or (2) had not been imposed; provided, however, that the indemnification obligation provided for in this Section 2.19(e) shall not extend to Taxes imposed for which the eligible Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which Securities would not have been imposed but eligible to receive payment of Additional Amounts hereunder or to the extent such Holder received Additional Amounts with respect to such payments.
(f) The Issuers and the Guarantors shall pay and jointly and severally shall indemnify and hold harmless the Holders of Securities, and upon written request of any Holder of Securities, reimburse such Holder for a Holder or beneficial owner the amount of the Funding Note, (i) having any present or former connection with the United Statesfuture stamp, includingissue, without limitationany present or future stamp, being or having been a citizen or resident thereofissue, or having been presentregistration, having been incorporated incourt, having engaged in a trade or business or having (or having had) a permanent establishment or principal office thereindocumentation, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment excise or other governmental charge which would not have been similar taxes, charges and duties, including interest and penalties with respect thereto, imposed but for the presentation of by any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments Relevant Taxing Jurisdiction in respect of the Funding Note;
(f) execution, issue, registration or delivery of the Securities or any taxGuaranties or any other document or instrument referred to thereunder and any such taxes, duty, levy, assessment charges or other governmental charge duties imposed by reason of payments on any jurisdiction as a result of, or in connection with, the Funding Note being treated as contingent interest described in Section 871(h)(4) enforcement of the Code Securities or any Guaranty and/or any other such document or instrument. The provisions of this Section 2.19 shall survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Issuers or any Guarantor and to any jurisdiction in which such successor is organized or is otherwise resident for United States Federal income tax purposes provided that or any jurisdiction from or through which payment is made by such treatment was described successor or its respective agents. Whenever this Indenture refers to, in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Notecontext, the effect payment of which is principal, premium, if any, interest or any other amount payable under or with respect to make any Security, such reference includes the payment in respect of the Funding Note subject to United States Federal income tax Additional Amounts or withholding tax provisions; or
(h) any combination of items (a)indemnification payments as described hereunder, (b), (c), (d), (e), (f) or (g) aboveif applicable.
Appears in 1 contract
Additional Amounts. If (1) All payments of principal, premium, interest and Registration Default Damages (if any) in respect of each Note and the Funding Note Certificate provide Subsidiary Guarantees shall be made free and clear of, and without withholding or deduction for, any taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or within any jurisdiction where each of the Company or the Subsidiary Guarantors (each a “Payor”) is organized or otherwise considered by a taxing authority to be a resident for tax purposes, any jurisdiction from or through which the Payor makes a payment on the Notes, or in each case, any political organization or governmental authority thereof or therein having the power to tax (the “Relevant Tax Jurisdiction”) in respect of any payments under the Notes, unless such withholding or deduction is required by law or by regulation or governmental authority having the force of law. In the event that any such withholding or deduction in respect of principal, premium, interest or Registration Default Damages is so required, the Company or the Subsidiary Guarantors, as the case may be, shall pay such additional amounts (“Additional Amounts”) as will result in receipt by each Holder of any Note of such amounts as would have been received by such Holder with respect to such Note or Subsidiary Guarantee, Global Funding agrees as applicable, had no such withholding or deduction been required, except that no Additional Amounts shall be payable for or on account of:
(i) any tax, duty, assessment or other governmental charge that would not have been imposed but for
(A) the existence of any present or former connection between such Holder (or between a fiduciary, settler, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership, limited liability company or corporation) and the Relevant Tax Jurisdiction other than solely by the holding of Notes or by the receipt of principal or interest in respect of the Notes, including, without limitation, such holder (or such fiduciary, settler, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein;
(B) the presentation of a Note (where presentation is required) for payment on a date more than 30 days after (x) the date on which such payment became due and payable or (y) the date on which payment thereof is duly provided for, whichever occurs later (in either case (x) or (y), except to pay the extent that the holder would have been entitled to Additional Amounts had the Note been presented for such 30-day period); or
(ii) any estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or other governmental charge; or
(iii) any tax, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of the Note to comply with a reasonable and timely request of the payor addressed to the Holder to provide information, documents or other evidence concerning the nationality, residence or identity of the Funding Note Additional Amounts Holder or such beneficial owner which is required by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge;
(iv) any tax, duty, assessment or other governmental charge that is payable otherwise than by any deduction or withholding from any payment of the principal of, or any premium or interest on, a Note;
(v) any tax, duty, assessment or other governmental charge required to be deducted or withheld by any paying agent from any payment of the principal of, or any premium or interest on, a Note, if such payment can be made alternatively at the Holder’s option without such deduction or withholding by any other paying agent available to such holder at the same time; or
(vi) any combination of the above.
(2) The Payor will provide to the Trustee and Paying Agent with the official acknowledgment of the Relevant Tax Authority or, if such acknowledgment is not available, a certified copy thereof, evidencing payment of the withholding taxes within 30 days after payment thereof. Copies of such receipts shall be provided in the Funding Note Certificate. to Holders requesting such copies.
(3) Whenever in the Funding Note Indenture there is mentioned, mentioned in any context, the payment of the principal ofprincipal, or premium, interest or premium onRegistration Default Damages, or in respect of, the Funding of any Note or the net proceeds received on the sale or exchange of the Funding any Note, such reference mention shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture for this Section 4.22 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such termsthis Indenture.
(4) The Company (or failing which, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional AmountsSubsidiary Guarantor), the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of pay any present or future stamp, court or documentary taxes, dutiesor any other excise or property taxes, leviescharges or similar levies which arise in any jurisdiction from the execution, assessments delivery, enforcement or governmental charges registration of whatever nature imposed the Notes or levied on payments on the Funding Note by or on behalf Subsidiary Guarantees of any governmental authority other document or instrument referred to therein (other than a transfer of the Notes), excluding any such taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Tax Jurisdiction, except those resulting from, or required to be paid in connection with, the United States having enforcement of the power Notes or the Subsidiary Guarantees following the occurrence of any Event of Default with respect to tax, the Notes.
(5) The Payor will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Payor will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copy to each Holder of a Note. The Payor will attach to each certified copy a certificate stating (x) that the net amount received of withholding Taxes evidenced by the Holder certified copy was paid in connection with payments in respect of the Funding Note, after giving effect to principal amount of Notes then outstanding and (y) the amount of such withholding Taxes paid per US$1,000, as the case may be, principal amount of the Notes.
(6) If a Payor 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 deduction, whether or not currently payable, will equal the withhold any amount that would have been received on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Funding Note were no such deduction Notes or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any taxthe relevant Subsidiary Guarantee, dutyas the case may be, levy, assessment or other governmental charge imposed which would not have been imposed required to be so deducted or withheld but for a Holder or beneficial owner such conduct of business in such Additional Taxing Jurisdiction, the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is Additional Amounts provision described in Section 881(c)(3)(A4.22(1) shall be considered to apply to such Holders as if references in such provision to “Taxes” included taxes imposed by way of the Code, deduction or withholding by any such Additional Taxing Jurisdiction (iv) being an actual or constructive owner of 10 percent any political subdivision thereof or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;taxing authority therein).
(b7) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than At least 30 days after the prior to each date on which such any payment becomes under or with respect to the Notes or any Subsidiary Guarantee, as the case may be, is due and payable (unless such obligation to pay Additional Amounts arises shortly before or after the date 30th day prior to such date, in which case it shall be promptly thereafter), if a Payor will be obligated to pay Additional Amounts with respect to such payment, such Payor will deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders of Notes on which the payment is duly provided for, whichever occurs later;date. Each such Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters.
(c) 8) The obligations under this Section 4.22 will survive any taxtermination, duty, levy, assessment defeasance or other governmental charge discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to a Payor is imposed organized or withheld solely by reason of the failure of the beneficial owner any political subdivision or a Holder of the Funding Note to comply with certification, identification taxing authority or information reporting requirements concerning the nationality, residence, identity agency thereof or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovetherein.
Appears in 1 contract
Additional Amounts. If At least 30 days prior to each date on which payment under or with respect to the Funding Note Notes or the Guarantees, as the case may be, is due and payable (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Company or the Guarantors (as the case may be) will be obligated to pay Additional Amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”) with respect to any such payment, the Company or the Guarantors (as the case may be) will deliver to the Trustee an Officers’ Certificate stating that such Additional Amounts will be payable, the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to the Holders on the payment date. Each such Officers’ Certificate shall be relied upon until the receipt of a further Officers’ Certificate addressing such matters. The Company or the Guarantors (as the case may be) will pay to the Trustee such Additional Amounts and, if paid to a Principal Paying Agent other than the Trustee, shall provide for the Trustee with documentation evidencing the payment of such Additional Amounts, Global Funding agrees to pay . Copies of such documentation shall be made available to the Holder Holders upon request. The Company or the Guarantors (as the case may be) shall indemnify the Trustee for, and hold it harmless against, any loss, liability, fee or expense incurred without negligence or willful misconduct on the Trustee’s part arising out of or in connection with actions taken or omitted by the Trustee in reliance on any Officers’ Certificate furnished to it pursuant to this Section 4.17. The Company or the Guarantors (as the case may be) will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Authority in accordance with applicable law. The Company or the Guarantors (as the case may be) will use reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each relevant Taxing Authority imposing such Taxes and will provide such certified copy to each Holder. The Payor will attach to each certified copy an Officer’s Certificate stating (x) that the amount of withholding Taxes evidenced by the certified copy was paid in connection with payments in respect of the Funding Note Additional Amounts principal amount of Notes then outstanding and (y) the amount of such withholding Taxes paid per €1,000, as provided the case may be, principal amount of the Notes. The foregoing obligations of this Section 4.17 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to the Funding Note CertificateCompany or the Guarantors (as the case may be) is organized or any political subdivision or taxing authority or agency thereof or therein. Whenever in this Indenture or in the Funding Note Indenture Notes there is mentioned, in any context, the payment of the principal ofprincipal, premium, if any, or interest or premium oninterest, if any, or in any other amount payable under or with respect of, the Funding to any Note or the net proceeds received on the sale or exchange of the Funding Noteand any Guarantee, such reference mention shall be deemed to include reference to mention of the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
Appears in 1 contract
Sources: Guarantee Agreement (Central European Distribution Corp)
Additional Amounts. (a) All payments made by or on behalf of the Company under or with respect to the Notes, or by or on behalf of any Guarantor under 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 tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter referred to as “Taxes”) imposed or levied by or on behalf of the government of Canada or any province or territory of Canada, or by or on behalf of any other jurisdiction in which the Company or any Guarantor is organized, or is otherwise carrying on business in, or is otherwise resident for tax purposes or any jurisdiction from or through which any payment is made or, in each case, any political subdivision or any authority or agency therein or thereof having power to tax (each, a “Relevant Taxing Jurisdiction”), unless any Person is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If any applicable withholding agent is required (by law or the Funding interpretation or administration thereof) to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction in respect of any payment made under or with respect to the Notes or a Note Certificate provide for Guarantee, the payment Company and the Guarantors (each, a “Payor” and collectively, the “Payors”) shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by a beneficial owner of Notes (including Additional Amounts) after such withholding or deduction (including any such withholding or deduction in respect of Additional Amounts) will equal the amount such beneficial owner of Notes would have received if such Taxes (including Taxes on any Additional Amounts) had not been withheld or deducted; provided, Global Funding agrees however, that the foregoing obligations to pay Additional Amounts shall not apply to (1) any Canadian Taxes imposed because the relevant Holder or beneficial owner of Notes does not deal at arm’s length (within the meaning of the Tax Act) with the Payor at the time of the payment, other than where the non-arm’s length relationship arises as a result of the existence, exercise or enforcement of any Note or Note Guarantee; (2) any Canadian Taxes to the Holder extent such Taxes are assessed or imposed by reason of the Funding relevant Holder or beneficial owner of the Note being a “specified shareholder” as defined in subsection 18(5) of the Tax Act of the Payor of such payment or not dealing at arm’s length (for purposes of the Tax Act) with a “specified shareholder” of the Payor of such payment, other than where the Holder or beneficial owner of the Notes is a “specified shareholder,” or does not deal at arm’s length with a “specified shareholder,” as a result of the existence, exercise or enforcement of any Note or Note Guarantee; (3) any withholding on account of Taxes imposed pursuant to the U.S. Foreign Account Tax Compliance Act (FATCA) under Sections 1471 through 1474 of the Code, as of the Issue Date (or any amended or successor version of such Sections that is substantively comparable and not materially more onerous to comply with) and any regulations or official interpretations promulgated thereunder; or (4) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant Holder or beneficial owner of Notes and the Relevant Taxing Jurisdiction including, for greater certainty and without limitation, being organized or having its principal office therein, being or having been a citizen, resident or national thereof, or being or having been engaged in a trade or business therein or maintaining a permanent establishment or other physical presence in or otherwise having some connection with the Relevant Taxing Jurisdiction (other than a connection from the mere acquisition, ownership, holding or disposition of such Note or a beneficial interest therein or the enforcement of rights thereunder or under a Note Guarantee or the receipt of any payment in respect thereof or in respect of a Note Guarantee); nor shall Additional Amounts be paid (a) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment within 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the relevant Holder or beneficial owner of Notes would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period); (b) to the extent relating to Taxes imposed by reason of the Holder’s or beneficial owner of Notes’ failure to comply with any certification, documentation, information or other evidentiary requirement concerning such Holder’s or beneficial owner of Notes’ nationality, residence, identity or connection with the Relevant Taxing Jurisdiction if such compliance is required by law, regulation, administrative practice or an applicable treaty as provided a precondition to any exemption from, or a reduction in the Funding rate of deduction or withholding of, such Taxes to which such Holder or beneficial owner of Notes is entitled; (c) to the extent relating to any Tax which would have been avoided by such Holder or beneficial owner of Notes by presenting the relevant Note Certificate(if presentation is required); or (d) to the extent relating to any combination of any of the above clauses (any such Tax in respect of which Additional Amounts are payable, an “Indemnified Tax”).
(c) The applicable Payor, if it is the applicable withholding agent, shall make any required withholding or deduction and remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. Whenever in The Company shall provide the Funding Note Indenture there is mentionedTrustee (and, in any contextupon request, a Holder or beneficial owner of Notes) with official receipts or other documentation evidencing the payment of the principal of, Taxes with respect to which Additional Amounts are paid.
(d) If a Payor is or interest will become obligated to pay Additional Amounts under or premium on, or in with respect of, the Funding Note or the net proceeds received to any payment made on the sale Notes or exchange a Note Guarantee, at least 30 days prior to the date of such payment (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), such Payor shall deliver to the Trustee and the Paying Agent (if different) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date.
(e) Whenever in this Indenture there is mentioned in any context: (1) the payment of principal; (2) redemption prices or purchase prices in connection with a redemption or purchase of Notes; (3) interest; or (4) any other amount payable on or with respect to any of the Funding NoteNotes or any Note Guarantee, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture as described under this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:thereof.
(af) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for The Company and the Guarantors shall indemnify and hold harmless a Holder or beneficial owner of Notes for the Funding Noteamount of any Indemnified Taxes (including, for greater certainty, taxes payable pursuant to Regulation 803 of the Income Tax Regulations (iCanada)) having levied or imposed and paid by such Holder or beneficial owner of Notes as a result of payments made under or with respect to the Notes or any Note Guarantee, and with respect to any reimbursements under this clause 2.13(f).
(g) The Company and the Guarantors shall pay any present or former connection future stamp, court or documentary taxes or any other excise, property or similar Taxes, charges or levies that arise in any Relevant Taxing Jurisdiction from the execution, delivery, or registration of, or the receipt of any payments with respect to, the United StatesNotes, includingthe Note Guarantees, without limitation, being this Indenture or having been a citizen any other document or resident instrument in relation thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase any such Taxes imposed by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments jurisdiction in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) enforcement of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding NoteNotes, the effect Note Guarantees, this Indenture or any other document or instrument in relation thereof, and the Company and the Guarantors shall indemnify the Holders or beneficial owners of which is to make payment in respect Notes for any such amounts (including penalties, interest and other liabilities related thereto) paid by such Holders or beneficial owners of the Funding Note subject to United States Federal income tax or withholding tax provisions; orNotes.
(h) The obligations described in this Section 2.13 will survive any combination termination, defeasance or discharge of items (a)this Indenture and will apply, (b)mutatis mutandis, (c), (d), (e), (f) to any successor Person to the Company or (g) aboveany Guarantor and to any Relevant Taxing Jurisdiction with respect to any such successor Person.
Appears in 1 contract
Sources: Indenture (New Gold Inc. /FI)
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuer makes under or with respect to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Notes shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on payments on the Funding Note by or on behalf of any governmental authority jurisdiction in which the United States having Issuer is organized or is a resident for tax purposes or from or through which the power Issuer makes any payment on the Notes or by or within any department or political subdivision thereof (each, a “Relevant Taxing Jurisdiction”), unless the Issuer is required to taxwithhold or deduct Taxes by law or by the interpretation or administration of law. If the Issuer is required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, so the Issuer shall pay additional amounts in cash (“Additional Amounts”) as may be necessary to ensure that the net amount received by the each Holder of the Funding Note, after giving effect to such withholding or deduction, whether deduction (including withholding or deduction attributable to Additional Amounts payable hereunder) will not currently payable, will equal be less than the amount that the Holder would have received if such Taxes had not been received under withheld or deducted.
(b) Notwithstanding the Funding Note were foregoing, the Issuer shall pay no such deduction Additional Amounts to a Holder or withholding required; provided that no beneficial owner of any Note:
(i) to the extent the Taxes giving rise to such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder the Holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with the United StatesRelevant Taxing Jurisdiction (other than a connection arising by reason of the acquisition, ownership, holding or disposition of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes or this Indenture);
(ii) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the failure of the Holder or beneficial owner of Notes, following the Issuer’s written request addressed to the Holder, to the extent such Holder or beneficial owner is legally entitled to do so, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, being a certification that the Holder or having been a citizen or beneficial owner is not resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, Relevant Taxing Jurisdiction);
(iii) being a bank for United States Federal income with respect to any estate, inheritance, gift, sales, transfer or personal property tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, or any similar Taxes;
(iv) being an actual if such Holder is a fiduciary or constructive partnership or Person other than the sole beneficial owner of 10 percent such payment and the Taxes giving rise to such Additional Amounts would not have been imposed on such payment had such Holder been the beneficiary, partner or more sole beneficial owner, as the case may be, of such Note (but only if there is no material cost or expense associated with transferring such Note to such beneficiary, partner or sole beneficial owner and no restriction on such transfer that is outside the total combined voting power control of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder such beneficiary, partner or sole beneficial owner);
(v) being subject to backup withholding as of the date of extent the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which Taxes giving rise to such Additional Amounts would not have been imposed but for the presentation by the Holder of any Funding Note (Note, where presentation is required) , for payment on a date more than 30 days after the date on which such payment becomes became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(cvi) with respect to any taxwithholding or deduction that is imposed on a payment to an individual and that is required to be made pursuant to the European Council Directive on the taxation of savings income which was adopted by the ECOFIN Council on June 3, duty2003 or any law implementing or complying with, levyor introduced in order to conform to, assessment such directive (the “EU Savings Tax Directive”) or is required to be made pursuant to the Agreement between the European Community and the Swiss Confederation dated as of October 26, 2004 providing for measures equivalent to those laid down in the EU Savings Tax Directive (the “EU-Swiss Savings Tax Agreement”) or any law or other governmental charge which is imposed regulation implementing or complying with, or introduced in order to conform to, such agreement; and
(vii) with respect to any combination of the items listed above. The Issuer shall (A) make such withholding or deduction of Taxes required by applicable law and (B) remit the full amount of Taxes so deducted or withheld solely to the relevant Taxing Authority in accordance with all applicable laws. The Issuer shall make reasonable best efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes. The Issuer shall provide to the Trustee, within a reasonable time after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, either a certified copy of tax receipts evidencing such payment or, if such tax receipts are not reasonably available to the Issuer, such other documentation that provides reasonable evidence of such payment by reason the Issuer.
(c) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Issuer shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, in which case it will be promptly thereafter), the Issuer shall deliver to the Trustee an 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 on the payment date. The Issuer shall promptly publish a notice in accordance with Section 13.02 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuer shall pay any present or future stamp, issue, registration, court documentation, excise or other similar taxes, charges and duties, including interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the failure execution, issue, registration or delivery of the beneficial owner Notes or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any jurisdiction as a Holder result of, or in connection with, the enforcement of the Funding Note to comply with certification, identification Notes and/or any other such document or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;instrument.
(d) The foregoing provisions shall survive any inheritancetermination, gift, estate, personal property, sales, transfer defeasance or similar tax, duty, levy, assessment, discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any Surviving Entity (as defined in Section 5.01(b)(i)) is organized or similar governmental charge;resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein or any jurisdiction from or through which payment is made by such Surviving Entity.
(e) Whenever this Indenture or the Notes refer to, in any taxcontext, dutythe payment of principal, levypremium, assessment if any, interest or any other governmental charge amount payable under or with respect to any Note, such reference shall be deemed to include mention of the payment of Additional Amounts or indemnification payments as described hereunder, to the extent that is in such context Additional Amounts or indemnification payments are, were or would be payable otherwise than by withholding from payments in respect of the Funding Note;thereof pursuant to this Section 4.12.
(f) The Issuer shall indemnify and hold harmless the Holders and, upon written request of any taxHolder, duty, levy, assessment reimburse such Holder for the amount of (i) any Taxes levied or other governmental charge imposed by reason of a Relevant Taxing Jurisdiction and payable by such Holder in connection with payments on made under or with respect to the Funding Note being treated as contingent interest Notes held by such Holder; and (ii) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (i) or this clause (ii), so that the net amount received by such Holder after such reimbursement shall not be less than the net amount such Holder would have received if the Taxes giving rise to the reimbursement described in Section 871(h)(4clauses (i) and/or (ii) had not been imposed, provided, however, that the indemnification obligation provided for in this paragraph (f) shall not extend to Taxes imposed for which the eligible Holder of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Notes would not have been imposed but for an election by eligible to receive payment of Additional Amounts hereunder or to the extent such Holder of the Funding Note, the effect of which is received Additional Amounts with respect to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovesuch payments.
Appears in 1 contract
Sources: Indenture (Digicel Group LTD)
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuer makes under or with respect to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Notes shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments on the Funding Note by or on behalf of any jurisdiction (other than the United States, any state thereof or the District of Columbia) in which the Issuer is organized, resident or doing business for tax purposes or from or through which it (or its agents, including the Paying Agent) makes any payment on this Note or by or within any department, political subdivision or governmental authority of or in any of the United States foregoing having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless the Issuer or other applicable withholding agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If the Issuer or other applicable withholding agent is required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to this Note, the Issuer shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder each beneficial owner of the Funding Note, Notes after giving effect to such withholding or deduction, whether deduction (including any withholding or deduction in respect of any Additional Amounts) will not currently payable, will equal be less than the amount that the beneficial owner would have received if such Taxes had not been received under the Funding Note were no such deduction withheld or withholding required; provided that no such deducted.
(b) The Issuer will not, however, pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes, dutyto the extent such Taxes are imposed or levied by a Relevant Taxing Jurisdiction by reason of the Person’s in whose name a Note is registered on the Registrar’s books (each such Person, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder “ Holder”) or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with such Relevant Taxing Jurisdiction (other than the United Statesmere receipt, includingownership, without limitation, being holding or having been a citizen or resident thereofdisposition of this Note, or having been presentby reason of the receipt of any payments in respect of any Notes, having been incorporated in, having engaged in a trade or business the exercise or having (or having had) a permanent establishment or principal office therein, enforcement of rights under any Notes);
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any Taxes to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which extent such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is Taxes are imposed or withheld solely by reason of the failure of the Holder or beneficial owner of this Note, following the Issuer’s written request addressed to the Holder or a Holder of the Funding Note beneficial owner, to comply with any certification, identification identification, information or information other reporting requirements concerning (to the nationality, residence, identity extent such holder or connection with the United States of the beneficial owner or a Holder of the Funding Noteis legally eligible to do so), if compliance is whether required by statute, by treaty, regulation of the United States Treasury Department, judicial or administrative interpretationpractice of a Relevant Taxing Jurisdiction, other law or by an applicable income tax treaty to which the United States is a party as a condition precondition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessmentfrom, or similar governmental charge;
(e) any taxreduction in the rate of deduction or withholding of, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge such Taxes imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of Relevant Taxing Jurisdiction (including, without limitation, a certification that the Code for United States Federal income tax purposes provided that such treatment was described Holder or beneficial owner is not resident in the Pricing SupplementRelevant Taxing Jurisdiction);
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. (a) All payments made by or on behalf of the Issuer or any Guarantor (each a “Payor”) under or with respect to the Debentures or any Debenture Guarantee will be made free and clear of and without withholding or deduction for or on account of Taxes imposed or levied by or on behalf of any jurisdiction in which such Payor is organized, resident or carrying on business for tax purposes or from or through which such Payor (or its agents) makes any payment on the Debentures or any Debenture Guarantee or any department or political subdivision thereof (each, a “Relevant Taxing Jurisdiction”), unless such Payor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If a Payor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Funding Note Debentures or any Debenture Guarantee, such Payor, subject to the exceptions set forth in Section 2.6(b), will pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received in respect of such payment by each Holder or Beneficial Holder after such withholding or deduction (including withholding or deduction attributable to Additional Amounts payable hereunder but excluding Taxes on net income) will not be less than the amount the Holder or Beneficial Holder, as the case may be, would have received if such Taxes had not been required to be so withheld or deducted.
(b) Notwithstanding Section 2.6(a), a Payor will not, however, pay Additional Amounts to a Holder or Beneficial Holder with respect to any of the following Taxes imposed on or with respect to a Holder or Beneficial Holder or required to be withheld or deducted from a payment to a Holder or Beneficial Holder:
(i) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case (i) imposed as a result of such Holder or Beneficial Holder being organized under the laws of, having a business office located in, or being a resident of the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes;
(ii) in the case of a Holder or Beneficial Holder, withholding Taxes imposed on amounts payable to or for the account of such Holder or Beneficial Holder with respect to an applicable interest in an Indenture Obligation pursuant to a law in effect on the date on which such Holder or Beneficial Holder acquires such interest in the Indenture Obligation;
(iii) Taxes attributable to such Holder or Beneficial Holder’s failure to comply with a request from the Trustee to provide a tax exemption certificate;
(iv) any withholding Taxes imposed under FATCA;
(v) any Canadian withholding Taxes imposed under the Tax Act on any amount paid or credited, or deemed as paid or credited, by or on account of any obligation of the Issuer under this Indenture (i) to a Holder or Beneficial Holder or recipient with which the Payor does not deal at arm’s length (for the purposes of the Tax Act) at the time of making such payment or (ii) in respect of a debt or other obligation to pay an amount to a Holder or Beneficial Holder or recipient with whom the Payor is not dealing at arm’s length (for the purposes of the Tax Act) at the time of such payment (other than where, in the case of the foregoing clauses (i) or (ii), the non-arm’s length relationship arises as a result of such Holder or Beneficial Holder or recipient having become a party to, received or perfected a security interest under or received or enforced any rights under this Indenture or any other Debenture Document);
(vi) any Canadian withholding Taxes imposed under the Tax Act on any amount paid or credited, or deemed as paid or credited, by any Holder or Beneficial Holder or recipient by reason of such Holder or Beneficial Holder or recipient (i) being a “specified non-resident shareholder” (as defined in subsection 18(5) of the Tax Act) of the Issuer or (ii) not dealing at arm’s length (for the purposes of the Tax Act) with a “specified non-resident shareholder” (as defined in subsection 18(5) of the Tax Act) of the Issuer; or
(vii) any combination of the foregoing items (i) through (vi); (collectively, the “Excluded Taxes”).
(c) At least 30 calendar days prior to each date on which any payment under or with respect to the Debentures or any Debenture Guarantee is due and payable, if a Payor will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 35th day prior to the date on which such payment is due and payable, in which case it will be promptly thereafter), the Payor will deliver to the Trustee an Officer’s Certificate provide stating that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date.
(d) The Payors, jointly and severally, will indemnify and hold harmless the Holders and Beneficial Holders and, upon written request of any Holder or Beneficial Holder, reimburse such Holder or Beneficial Holder for the amount of (i) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by such Holder or Beneficial Holder in connection with payments made under or with respect to the Debentures held by such Holder or Beneficial Holder and (ii) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (i) or this clause (ii), so that the net amount received by such Holder or Beneficial Holder after such reimbursement will not be less than the net amount such Holder or Beneficial Holder would have received if the Taxes giving rise to the reimbursement described in clauses (i) and/or (ii) had not been imposed; provided, however, that the indemnification or reimbursement obligations provided for in this clause (d) shall not extend to Taxes for which the applicable Holder or Beneficial Holder would not have been eligible to receive payment of Additional Amounts hereunder by virtue of clauses (i) through (vii) of Section 2.6(b) if the Payor had been required to withhold from such payments or to the extent such Holder or Beneficial Holder received Additional Amounts with respect to such payments.
(e) In addition, the Payor will pay any stamp, issue, registration, court, documentation, excise or other similar taxes, charges and duties, including any interest, penalties and any similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction at any time in respect of the execution, issuance, registration or delivery of the Debentures, any Debenture Guarantee or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any Relevant Taxing Jurisdiction on any payments made pursuant to the Debentures or any Debenture Guarantee or as a result of, or in connection with, the enforcement of the Debentures, any Debenture Guarantee and/or any other such document or instrument.
(f) If a Holder or Beneficial Holder determines, acting reasonably and in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.6 (including by the payment of Additional Amounts), Global Funding agrees to or that, because of the indemnification, it has benefited from a reduction in Excluded Taxes otherwise payable by it, it shall pay to the Holder indemnifying party an amount equal to the refund or reduction (but only to the extent of the Funding Note indemnification and payment of Additional Amounts Amounts), net of all out-of-pocket expenses of the Holder or Beneficial Holder, as provided the case may be, and without interest (other than any net after Tax interest paid by the relevant Governmental Entity with respect to any such refund). The indemnifying party, upon the request of the indemnified party, shall repay to the indemnified party the amount paid over pursuant to this Section 2.6(f) (plus any penalties, interest or other charges imposed by the relevant Governmental Entity) if the indemnified party is required to repay the refund or reduction to the Governmental Entity. Notwithstanding anything to the contrary in this Section 2.6(f), in no event shall the Funding Note Certificateindemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.6(f) the payment of which would place the indemnified party in a less favourable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund or reduction had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section shall not be construed to require any indemnified party to make available its tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or to any other Person, to arrange its affairs in any particular manner or to claim any available refund or reduction.
(g) Any Holder or Beneficial Holder that is entitled to an exemption from or reduction of withholding tax under the Relevant Taxing Jurisdiction, or any treaty to which that jurisdiction is a party, with respect to payments under the Debentures or any Debenture Guarantee shall, at the request of the Payor, deliver to the Payor (with a copy to the Trustee), at the time or times prescribed by the Relevant Taxing Jurisdiction or reasonably requested by the Payor, all properly completed and executed documentation prescribed by the Relevant Taxing Jurisdiction that will permit the payments to be made without withholding or at a reduced rate of withholding. In addition any Holder or Beneficial Holder, if requested by the Payor, shall deliver other documentation prescribed by the Relevant Taxing Jurisdiction or reasonably requested by the Payor that will enable the Payor to determine whether or not that Holder or Beneficial Holder is subject to withholding or information reporting requirements and (ii) any Holder or Beneficial Holder shall notify the Payor in writing within five (5) Business Days of ceasing to be, or to be deemed to be, resident in a jurisdiction.
(h) The obligations described under this Section 2.6 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to any Payor and to any jurisdiction in which such successor is organized or is otherwise resident or doing business for tax purposes or any jurisdiction from or through which payment is made by such successor or its respective agents. Whenever in the Funding Note this Indenture there is mentionedrefers to, in any context, the payment of the principal ofStandby Fee, or principal, Premium and interest or premium on, any other amount payable under or in with respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Noteto any Debenture, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed indemnification payments as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in this Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note2.6, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) aboveapplicable.
Appears in 1 contract
Sources: Trust Indenture (High Tide Inc.)
Additional Amounts. If (a) Payments made by or on behalf of the Funding Note Certificate provide Company under or with respect to the Notes will be made free and clear of and without withholding or deduction for or on account of any Taxes imposed or levied by or on behalf of a Taxing Jurisdiction, unless the Company or any Subsidiary Guarantor is required by law to withhold or deduct Taxes from any payment made under or with respect to the Notes or by the interpretation or administration thereof. If, after the Issue Date, the Company or any Subsidiary Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes, the Company or such Subsidiary Guarantor will pay to each Holder of Notes that are outstanding on the date of the required payment, such additional amounts ("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 a payment made to a Holder (an "EXCLUDED HOLDER"):
(i) with which the Company or such Subsidiary Guarantor does not deal at arm's length (within the meaning of the Income Tax Act (Canada)) at the time of making such payment, or
(ii) which is subject to such Taxes by reason of its being connected with the relevant Taxing Jurisdiction otherwise than by the mere acquisition, holding or disposition of the Notes or the Subsidiary Guaranty or the receipt of payments thereunder.
(b) The Company and the Subsidiary Guarantors 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.
(c) The Company and the Subsidiary Guarantors will furnish to the Trustee, or cause to be furnished to the Trustee, within 30 days after the date the payment of Additional Amountsany Taxes is due pursuant to applicable law, Global Funding agrees certified copies of tax receipts evidencing that such payment has been made by the Company or any such Subsidiary Guarantor or other evidence of such payment satisfactory to the Trustee. The Trustee shall make such evidence available upon the written request of any Holder of Notes that are outstanding on the date of any such withholding or deduction.
(d) The Company and the Subsidiary Guarantors will indemnify and hold harmless each Holder of Notes that are outstanding on the date of the required payment (other than an Excluded Holder) and upon written request reimburse each such Holder for the amount of:
(i) any Taxes so levied or imposed by or on behalf of a Taxing Jurisdiction and paid by such holder as a result of payments made under or with respect to the Notes and any liability (including penalties, interest and expense) arising therefrom or with respect thereto, and
(ii) any Taxes (other than Taxes on such ▇▇▇▇▇▇'s profits or net income) imposed with respect to any reimbursement under clause (d)(i) of this Section 4.19 so that the net amount received by such ▇▇▇▇▇▇ after such reimbursement will not be less than the net amount such holder would have received if such reimbursement had not been imposed.
(e) At least 30 days prior to each date on which any payment under or with respect to the Notes is due and payable, if the Company or any such Subsidiary Guarantor becomes obligated to pay Additional Amounts with respect to such payment, the Company or such Subsidiary Guarantor will deliver to the Holder of Trustee an Officers' Certificate stating the Funding Note fact that such Additional Amounts will be payable, and the amounts so payable and will set forth such other information as provided in is necessary to enable the Funding Note CertificateTrustee to pay such Additional Amounts to the Holders on the payment date. Whenever in the Funding Note this Indenture there is mentioned, in any context, :
(i) the payment of the principal of(and premium, if any),
(ii) purchase prices in connection with a repurchase of Notes,
(iii) interest, including Special Interest, if any, or
(iv) any other amount payable on or interest or premium on, or in with respect of, the Funding Note or the net proceeds received on the sale or exchange to any of the Funding NoteNotes, such reference mention shall be deemed to include reference to mention of the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture for in this Section 4.19 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
Appears in 1 contract
Sources: Indenture (Novelis Inc.)
Additional Amounts. If At least 30 days prior to each date on which payment of principal, premium, if any, or interest or other amounts on the Funding Note Notes is to be made (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”) with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide for the Trustee with documentation evidencing the payment of such Additional Amounts, Global Funding agrees to pay . Copies of such documentation shall be made available to the Holder Holders upon request. The Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.12. The Issuer and each Guarantor (as applicable) will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer and each Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copy to the Trustee. If the Issuer or the Guarantors conduct business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, are required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply to such Holders as if references in such provision to “Taxes” included taxes imposed by way of deduction or withholding by any such Additional Taxing Jurisdiction (or any political subdivision thereof or taxing authority therein). The Issuer will pay any stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in any Relevant Taxing Jurisdiction from the execution, delivery and registration of Notes upon original issuance and initial resale of the Funding 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 Additional Amounts Guarantee or any other document or instrument referred to therein. If at any time the Issuer changes its place of organization to outside of the United States or there is a new issuer organized outside of the United States, the Issuer or new issuer, as provided 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 Funding 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 CertificateGuarantee 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. Whenever The foregoing obligations of this Section 4.12 and Paragraph 2 of the Notes will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Issuer or the Guarantors. Wherever in this Indenture or the Funding Notes or any Note Indenture Guarantee there is are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the principal ofIndenture or the Notes, or (3) interest or premium on, (4) any other amount payable on or in with respect of, the Funding Note or the net proceeds received on the sale or exchange to any of the Funding NoteNotes or any Note Guarantee, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture as described in this Section 4.12 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
Appears in 1 contract
Additional Amounts. If the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees (a) The Company and any Subsidiary Guarantor are required to pay to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note make all payments under this Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange Notes free and clear of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed or levied on payments on the Funding Note by or on behalf of the government of the country in which the Company or Subsidiary Guarantor and any governmental successor thereof is organized or incorporated or any political subdivision or any authority in the United States or agency therein or thereof having the power to tax, or any other jurisdiction in which the Company or any Subsidiary Guarantor is otherwise resident for tax purposes or the jurisdiction of any Paying Agent (each, a “Relevant Taxing Jurisdiction”), unless the Company or a Subsidiary Guarantor or Paying Agent is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Company, or any Subsidiary Guarantor, or a Paying Agent is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, the Company or any Subsidiary Guarantor will be required to pay such additional amounts (“Additional Amounts”) with respect to the Notes as may be necessary so that the net amount received by the any Holder of the Funding Note, or beneficial owner (including Additional Amounts) after giving effect to such withholding or deduction, whether or deduction will not currently payable, will equal be less than the amount that such Holder or beneficial owner would have received if such Taxes had not been received under withheld or deducted; provided, however, that the Funding Note were no such deduction or withholding required; provided that no such foregoing obligation to pay Additional Amounts shall be required for or on account ofdoes not apply to:
(ai) any tax, duty, levy, assessment or other governmental charge imposed which Taxes that would not have been so imposed but for a Holder or beneficial owner the existence of the Funding Note, (i) having any present or former connection with between the United Statesrelevant Holder or beneficial owner and the Relevant Taxing Jurisdiction (including a connection between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant holder or beneficial owner, if the relevant holder or beneficial owner is an estate, nominee, trust, partnership or corporation, and the Relevant Taxing Jurisdiction) including, without limitationlimiting the generality of the foregoing, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, partner, member, shareholder, or possessor) of the Notes being or having been a citizen citizen, resident, or resident thereof, national thereof or being or having been present, having been incorporated in, having present or engaged in a trade or business therein or having (or having had) had a permanent establishment or principal office therein, ;
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Codeany estate, to the Funding Agreement Providerinheritance, gift, sales, transfer or personal property tax or similar Taxes;
(iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described any withholding or deduction in Section 881(c)(3)(A) respect of the CodeNotes (a) presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant note to any other paying agent, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not where the payment could have been imposed but for made without such deduction or withholding if the presentation beneficiary of any Funding Note (where presentation is required) the payment had presented the notes for payment on a date more than within 30 days after the date on which such payment becomes on the notes became due and payable or the date on which payment thereof is duly provided for, whichever occurs lateris later (except to the extent that the holder or beneficial owner would have been entitled to Additional Amounts had the notes been presented on the last day of such 30-day period);
(civ) any taxTaxes imposed with respect to any payment of principal (or premium, dutyif any) or interest on the Notes by the Company or any Subsidiary Guarantor to any Holder or beneficial owner who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment, levyto the extent that a beneficiary or settlor with respect to such fiduciary, assessment a member of such a partnership or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner been the actual Holder or a Holder beneficial owner of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental chargeNotes;
(dv) any inheritance, gift, estate, personal property, sales, transfer Taxes that are payable other than by deduction or similar tax, duty, levy, assessment, withholding from payments made under or similar governmental chargewith respect to the Notes;
(evi) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge Taxes that would not have been imposed but for an election the failure of the Holder and/or beneficial owner (a) to comply with the Company’s or the Paying Agent’s request in writing at least 30 days before any withholding for such Taxes to the Holder to provide certification, documentation, information or other evidence concerning the nationality, residence, entitlement to treaty benefits, identity, direct or indirect ownership of or investment in the Notes, or connection with the Relevant Taxing Jurisdiction of the Holder and/or beneficial owner of such Notes, or (b) to make any valid or timely declaration or similar claim or satisfy any other reporting requirement or to provide any information relating to such matters, whether required or imposed by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of withholding or deduction of, Taxes imposed by the Holder of the Funding Note, the effect of which is Relevant Taxing Jurisdiction;
(vii) any Taxes that are required to make be deducted or withheld from any payment under or in respect of the Funding Note subject Notes as a consequence of the Holder or beneficial owner of Notes or the recipient of the interest payable on the Notes not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with the Company or any Subsidiary Guarantor at the time of making any such payment;
(viii) any Taxes that are required to be deducted or withheld from any payment under or in respect of the Notes as a consequence of the Holder or beneficial owner of the Notes being at any time a ‘‘specified non-resident shareholder’’ (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Company or at any time not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with a “specified shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Company or as a consequence of the payment being deemed to be a dividend under the Income Tax Act (Canada);
(ix) any Taxes payable under section 1471 through 1474 of the Code (or any successor or amended versions thereof), any regulations or other official guidance thereunder, or any agreement (including any intergovernmental agreement or any law implementing such governmental agreement) entered into in connection therewith (“FATCA”);
(x) any Taxes or penalties arising from the Holder’s or beneficial owner’s failure to comply with the Holder’s or beneficial owner’s obligations imposed under Part XVIII of the Income Tax Act (Canada), the Canada-United States Federal income tax Enhanced Tax Information Exchange Agreement Implementation Act (Canada) or withholding tax provisionsthe similar provisions of legislation of any other jurisdiction that has entered into an agreement with the United States of America to provide for the implementation of FATCA based reporting; or
(hxi) any combination of, or any Taxes arising from a combination of items the factors described in, (ai) to (x) above.
(c) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Company or any Subsidiary Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company will deliver to the U.S. Trustee and paying agent for the affected Notes an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the U.S. Trustee or paying agent, as the case may be, to pay such Additional Amounts to Holders and beneficial owners of such Notes on the payment date. Each such Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters.
(b)d) The Company or the applicable Subsidiary Guarantor will also (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will provide the U.S. Trustee with official receipts or, if notwithstanding the efforts of the Company official receipts are not obtainable, other documentation reasonably satisfactory to the U.S. Trustee, evidencing the payment of any Tax so deducted or withheld for each Relevant Taxing Jurisdiction imposing such Taxes. The Company will attach to each official receipt or other documentation a certificate stating (x) that the amount of such Tax evidenced by the official receipt or other documentation was paid in connection with payments in respect of the principal amount of such Notes then outstanding and (y) the amount of such Tax paid per $1,000 of principal amount of such Notes.
(e) Whenever reference is made in this Indenture, in any context, to (i) the payment of principal, (c)ii) redemption prices or purchase prices in connection with a redemption or purchase of Notes, (d)iii) interest or (iv) any other amount payable on or with respect to the Notes, (e)such reference will be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are or would be payable in respect thereof.
(f) The Company will pay any present or future stamp, court, documentary or other similar taxes, charges or levies that arise in any jurisdiction from the execution, delivery or registration of, or enforcement of rights under, this Indenture or any related document.
(g) aboveThe obligations described under this Section 2.13 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to the Company or any Subsidiary Guarantor is organized or any political subdivision or taxing authority or agency thereof or therein.
(h) The Company and the Subsidiary Guarantors shall indemnify and hold harmless the Trustees for the amount of any Taxes in respect of which the Company, or any Subsidiary Guarantor, is required to pay Additional Amounts pursuant to Section 2.13(b) that are levied or imposed and paid by the Trustees as a result of payments made under or with respect to the Notes or any Subsidiary Guarantee, including any reimbursements under this clause 2.13(h).
Appears in 1 contract
Sources: Indenture (Open Text Corp)
Additional Amounts. If the Funding Note Certificate provide for the payment All payments of Additional Amountsprincipal, Global Funding agrees to pay to the Holder premium, if any, and interest by or on behalf of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or Company pursuant to the Funding Note Indenture to terms of the extent that, in such context, Additional Amounts are, were or would Securities shall be payable in respect thereof pursuant to such termsmade free and clear of, and express reference without deduction or withholding for or on account of, any present or future taxes, duties, assessments or other governmental charges of whatsoever nature required to be deducted or withheld by the payment United States, any state thereof or the District of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will payColumbia, or cause to be paidany other jurisdiction through which payment on the Securities is made, Additional Amounts to or any political subdivision or taxing authority therein or thereof (a Holder of “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law. In the Funding Note to compensate for event any withholding or deduction on payments in respect of the Securities for or on account of any present or future taxestax, dutiesassessment or other governmental charge is required to be deducted or withheld by a Relevant Taxing Jurisdiction, leviesthe Company shall remit the full amount required to be deducted or withheld to the relevant authority in accordance with applicable law and pay such additional amounts (the “Additional Amounts”) so that every net payment of the principal of, assessments or governmental charges of whatever nature imposed or levied on payments premium, if any, and interest on the Funding Note Securities will result in receipt by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the each Holder of the Funding Note, Securities of such amounts (after giving effect to all such withholding or deduction, whether or not currently payable, will equal the amount that including on any additional amounts) as would have been received under the Funding Note were had no such withholding or deduction or withholding been required; provided that no such . The Company will not be required, however, to make any payment of Additional Amounts shall be required for or on account of:
(a) A. any tax, duty, levy, assessment or other governmental charge imposed which that would not have been imposed but for (i) the existence of any present or former connection (other than a connection arising solely from the ownership of those Securities, the receipt of payments in respect of those Securities or exercise or enforcement of rights under the Securities) between the Holder of the Securities (or beneficial owner of the Funding NoteSecurities), or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, that Holder or beneficial owner (iif that Holder or beneficial owner is an estate, trust, partnership or corporation) having any present and the Relevant Taxing Jurisdiction, including that Holder or former connection with the United Statesbeneficial owner, includingor that fiduciary, without limitationsettlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident thereof, or treated as a resident of a Relevant Taxing Jurisdiction or being or having been present, having been incorporated in, having engaged in a trade or business or having (present in the Relevant Taxing Jurisdiction or having had) had a permanent establishment in the Relevant Taxing Jurisdiction or principal office therein, (ii) being the presentation of a Security for payment on a 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;
B. any payment to a Holder of the Securities that is not the sole beneficial owner of the Securities, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that a beneficiary or settlor with respect to the fiduciary, or member of the partnership or beneficial owner would not have been entitled to the payment of any such Additional Amounts had the beneficiary, settlor, member or beneficial owner received directly its beneficial or distributive share of the payment;
C. any estate, inheritance, gift, sales, transfer, capital gains, excise, personal property, wealth or similar tax, assessment or other governmental charge;
D. any tax, assessment or other governmental charge imposed by reason of the beneficial owner’s or Holder’s past or present status as a passive foreign investment company, a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Codecorporation, a foreign tax exempt organization or a personal holding company with respect to the Funding Agreement Provider, (iii) being a bank for United States Federal or as a corporation that accumulates earnings to avoid U.S. federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) tax; E. any tax, dutyassessment or other governmental charge which is payable otherwise than by withholding or deducting from payment of principal of or premium, levyif any, or interest on such Securities;
F. any tax, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the a beneficial owner or a any Holder of the Funding Note Securities to comply (to the extent that it is legally able to do so) with a request to satisfy certification, identification information, documentation or information other reporting requirements concerning the nationality, residence, identity or connection connections with the United States Relevant Taxing Jurisdiction of the beneficial owner or a any Holder of Securities (including, but not limited to, the Funding Noterequirement to provide Internal Revenue Service Forms W-8BEN, if compliance is required by statuteW-8BEN-E, by regulation of the United States Treasury DepartmentW-8ECI, judicial W-9 or administrative interpretationany subsequent versions thereof or successor thereto, other law or by and including, without limitation, any documentation requirement under an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental chargetreaty);
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) G. any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason the United States, any state thereof or the District of payments Columbia (or any political subdivision or taxing authority therein or thereof) on interest received by (1) a 10 percent shareholder (as defined in Section 871(h)(3)(B) of the Funding Note being treated U.S. Internal Revenue Code of 1986, as contingent amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company, or (2) a controlled foreign corporation that is related to the Company within the meaning of Section 864(d)(4) of the Code, or (3) a bank receiving interest described in Section 871(h)(4881(c)(3)(A) of the Code Code, to the extent such tax, assessment or other governmental charge would not have been imposed but for United States Federal income tax purposes provided that such treatment was the beneficial owner’s status as described in the Pricing Supplementsubparagraphs (1) through (3) of this paragraph (G);
(g) H. any tax, dutyassessment or other governmental charge required to be withheld or deducted under Sections 1471 through 1474 of the Code (commonly referred to as “FATCA”), levyany regulations or other guidance thereunder, or any agreement (including any intergovernmental agreement) entered into in connection therewith; or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreement in respect of FATCA; I. any tax, assessment or other governmental charge that would not have been imposed but for an election by a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the Holder of the Funding Notepayment becomes due or is duly provided for, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionswhichever occurs later; or
(h) J. any combination of items (a), (b), (c), (d), (e), (f) or (g) the above.
Appears in 1 contract
Sources: Indenture (Boston Scientific Corp)
Additional Amounts. If (a) All payments made under or with respect to a Note Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, levies, duties, fees, assessments or other governmental charges of whatever nature (including interest and penalties) (“Taxes”) imposed, levied, collected or assessed by or on behalf of any taxing authority within any jurisdiction, other than the Funding United States, in which a Guarantor is organized or engaged in business (or any political subdivision or taxing authority of any such jurisdiction) (a “Taxing Jurisdiction”), unless a Guarantor is required by the Taxing Jurisdiction to withhold or deduct Taxes under its law or by the interpretation or administration thereof.
(b) Subject to Section 4.22 (c) below, if a Guarantor is required to withhold or deduct or if a Guarantor is otherwise required to pay any amount for or on account of Taxes imposed by a Taxing Jurisdiction which amount would otherwise be included in any payment made under or with respect to any Note Certificate provide for Guarantee, then such Guarantor will (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law, and each holder of a Note (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such Note) shall receive such additional amounts (“Additional Amounts”) as may be necessary so that the amount actually received (after any additional withholding or deduction in respect thereof) by each such person will not be less than the amount such person would have received if such Taxes had not been withheld or deducted or paid. The Company or a Guarantor will make reasonable efforts to obtain from the relevant Taxing Jurisdiction certified copies of tax receipts evidencing the payment to such Taxing Jurisdiction of any Taxes so withheld or deducted or paid. The Company or a Guarantor will furnish to a Holder of a Note (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such Note), within 60 days after the date the payment of any Tax so withheld or deducted is due pursuant to applicable law, either a certified copy of tax receipts evidencing such payment by a Guarantor or, if such receipts are not obtainable, other evidence of such payment by a Guarantor.
(c) No Additional AmountsAmounts will be paid to a Holder of a Note (or the beneficial owner of, Global Funding agrees or person ultimately entitled to obtain an interest in, such Note) with respect to any Tax which (i) would have not been imposed, payable or due but for the existence of any present or former connection between such person and the Taxing Jurisdiction other than the mere holding of such Note, or (ii) is imposed or withheld by reason of the failure of such person to comply with certification, information or other requirements concerning such person if such compliance is required or imposed by a statute, treaty or regulation or administrative practice of the Taxing Jurisdiction as a precondition to exemption from all or part of such Tax.
(d) If a Guarantor fails to withhold or deduct or pay any amount required to be withheld or deducted or paid under Section 4.22(b) above, then provided that reasonable supporting documentation is submitted by such person to the Company or such Guarantor, the Company and each Guarantor will, upon written request of a holder of a Note (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such Note), pay to such person an amount necessary for such person to receive (after any additional withholding or deduction in respect thereof) the amount of any Taxes which such Guarantor failed to withhold or deduct or pay, but which were directly paid by such person to the relevant Taxing Jurisdiction. Additionally, if a Guarantor is not required to withhold or deduct or pay any Taxes under Section 4.22(b) above, but a Holder of a Note (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such Note) is required under the law of the applicable Taxing Jurisdiction to directly pay any Taxes (e.g., Self-Assessed Withholding Taxes for Canadian federal tax purposes), then subject to Section 4.22(c) above and provided that reasonable supporting documentation is submitted by such person to the Company or such Guarantor, the Company and each Guarantor will, upon written request of such person, reimburse such person an amount necessary for such person to receive (after any additional withholding or deduction in respect thereof) the amount of any Taxes which such Guarantor was not required to withhold or deduct or pay, but which were directly paid by such person to the relevant Taxing Jurisdiction. Any amount due to a Holder of a Note (or the beneficial owner of, or person ultimately entitled to obtain an interest in, such Note) under this Section 4.22(d) shall be considered an Additional Amount.
(e) All obligations of each Guarantor to pay any Additional Amounts as described above in Section 4.22(b) are hereby fully and unconditionally guaranteed on an unsecured senior subordinated basis by the Company. The obligations of the Company described in this Section 4.22 (including without limitation those described in the immediately preceding sentence) shall be jointly and severally guaranteed by each Guarantor pursuant to the Note Guarantee.
(f) At least 30 days prior to each date on which any payment under or with respect to a Note Guarantee is due and payable, if a Guarantor will be obligated to pay Additional Amounts with respect to such payment, then the Company will deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to the Holder of a Note (or the Funding Note Additional Amounts as provided in beneficial owner of, or person ultimately entitled to obtain an interest in, such Note) on the Funding Note Certificatepayment date. Whenever in the Funding Note this Indenture there is mentioned, in any context, the payment of amounts based upon the principal of, or premium, if any, interest or premium on, of any other amount payable under or in with respect of, the Funding to any Note or the net proceeds received on the sale or exchange of the Funding Note, such reference mention shall be deemed to include reference to mention of the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amountsthereof.
(g) In addition, the Funding Note Certificate Company will provide that Global Funding will paypay any stamp, issue, registration, documentary, value added or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding other similar taxes or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority duties (including interest and penalties) due and payable in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having Canada (or having had) a permanent establishment any political subdivision or principal office thereintaxing authority of such jurisdiction), (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any taxcreation, dutyissue, levyoffering, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) execution of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding NoteNotes, the effect of which is Note Guarantees, and any documentation with respect to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) aboveforegoing.
Appears in 1 contract
Sources: Indenture (Intertape Woven Products Services S.A. De C.V.)
Additional Amounts. If This Section 6.5 shall replace Section 1010 of the Funding Note Certificate provide Base Indenture with respect to the Notes only.
(a) Payments made by each Subsidiary Guarantor and each Future Guarantor that is a Foreign Subsidiary, if any, in respect of their respective Guarantees shall be made free and clear of, and without deduction or withholding for, any Taxes, unless such Subsidiary Guarantor or Future Guarantor, as applicable, is required to deduct or withhold Taxes by applicable law.
(b) If, pursuant to Section 6.5(a), any Subsidiary Guarantor or any Future Guarantor that is a Foreign Subsidiary is required by applicable law to deduct or withhold any amount for or on account of Taxes from any payment made with respect to its Guarantee, such Subsidiary Guarantor or Future Guarantor shall pay such additional amounts as may be necessary so that the sum payable by such Subsidiary Guarantor or Future Guarantor is increased as necessary so that, after such deduction or withholding has been made, each Holder or beneficial owner of the Notes receives an amount equal to the sum it would have received had no such deduction or withholding been made (“Additional Amounts”); provided that no Additional Amounts shall be payable with respect to Taxes:
(1) that are imposed as a result of the Holder or beneficial owner of the Notes being organized under the laws of, or having its principal office in, the jurisdiction imposing such Tax (or any political subdivision thereof);
(2) that are imposed as a result of a present or former connection between the Holder or beneficial owner of the Notes and the jurisdiction imposing such Tax;
(3) payable other than by withholding from payments in respect of the Guarantee of such Subsidiary Guarantor or Future Guarantor;
(4) that would not have been imposed but for the failure of the applicable recipient of such payment to comply with any certification, identification, information, documentation or other reporting requirement to the extent:
(A) such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes; and
(B) at least 30 days before the first payment date with respect to which such Additional Amounts or Taxes shall be payable, such Subsidiary Guarantor or Future Guarantor has notified such recipient in writing that such recipient is required to comply with such requirement;
(5) that are imposed or withheld pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the Notes (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code; or
(6) any combination of the foregoing subsections 6.5(b)(1) to 6.5(b)(5). All references in the Indenture to the payment of Additional Amounts, Global Funding agrees to pay to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or and premium, if any, and interest or premium on, the Notes (and similar phrases) or in respect of, the Funding Note any payment made by any Subsidiary Guarantor or the net proceeds received on the sale or exchange of the Funding Note, such reference any Future Guarantor that is a Foreign Subsidiary under its Guarantee shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such that context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference payable. Notwithstanding anything to the payment of Additional Amounts contrary in the Indenture, in no event shall the Issuer, the Parent Guarantors, or any provision of the Funding Note Indenture shall not Future Guarantor that is a Domestic Subsidiary be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides obligated, directly or indirectly, for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) aboveany.
Appears in 1 contract
Sources: Second Supplemental Indenture (Americold Realty Trust)
Additional Amounts. (a) All amounts paid or credited by the Company under or with respect to the Notes will be made net of any withholding or deduction for or on account of any present or future Taxes imposed or levied by or on behalf of the government of Canada, any province or territory of Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or any jurisdiction in which the Company is organized, resident, or doing business for tax purposes, or from or through which the Company (or its agents) makes any payment on the Notes, or any taxing authority thereof, and the Company will not be required to pay any additional amounts to Holders in respect of any Taxes to the extent that such Taxes at any time become payable.
(b) All payments made by or on behalf of any Guarantor (each such payor, a “Payor”) under or with respect to any Note Guarantee, are required to be made free and clear of and without withholding or deduction for or on account of any present or future Taxes imposed or levied by or on behalf of the government of Canada, any province or territory of Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which such Guarantor is organized, is carrying on business in for tax purposes, or is otherwise resident for tax purposes or any jurisdiction from or through which payment is made (including the jurisdiction of any paying agent) (each, a “Relevant Taxing Jurisdiction”), unless such Payor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(c) If any Payor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to a Note Guarantee, such Payor will be required to pay such additional amounts (“Additional Amounts”) as may be necessary so that the Funding net amount received by a Holder or a Beneficial Holder of Notes (including Additional Amounts) after such withholding or deduction will not be less than the amount such Holder or Beneficial Holder of Notes would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to any Taxes payable by virtue of: (1) the applicable Payor does not deal at arm’s length (within the meaning of the Tax Act) with such Holder or Beneficial Holder at the time of the payment; (2) such Holder or Beneficial Holder being either (a) a “specified non- resident shareholder” of the Company or a relevant Guarantor or (b) a non-resident person who does not deal at arm’s length with a specified shareholder of the Company or a Guarantor, in each case for purposes of subsection 18(5) of the Tax Act; (3) any connection between such Holder or Beneficial Holder of Notes and the Relevant Taxing Jurisdiction other than a connection resulting from the mere acquisition, ownership, holding or disposition of, or the enforcement of rights under or the receipt of payments in respect of, any Notes or Note Certificate provide Guarantees or beneficial interests therein; (4) such Holder or Beneficial Holder failing to duly and timely comply (where such Holder or Beneficial Holder is legally eligible to do so) with a timely request of the Company to comply with information, documentation, certification or other evidentiary requirements concerning such Holder’s or Beneficial Holder’s nationality, residence, entitlement to treaty benefits, identity or connection with the Relevant Taxing Jurisdiction, if and to the extent that due and timely compliance with such request would have resulted in the reduction or elimination of any Taxes as to which Additional Amounts would have otherwise been payable to such Holder or Beneficial Holder of Notes but for this clause (4), and provided that the Company provides written notice of such requirement to the applicable Holder or Beneficial Holder of at least thirty (30) days prior to the date of the payment in respect of which Additional AmountsAmounts would be payable; (5) such Holder or Beneficial Holder being a fiduciary, Global Funding agrees to pay a partnership or not the beneficial owner of any payment on a Note, if and to the Holder extent that, as a result of an applicable tax treaty, no Additional Amounts would have been payable had the 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 such beneficiary, partner or beneficial owner); (6) such Tax being an estate inheritance, gift, sales, transfer or personal property Tax or any similar Tax with respect to a Note, or (7) any combination of the Funding Note Additional Amounts as provided foregoing clauses (1) to (6), (any Taxes, other than Taxes described in the Funding Note Certificateforegoing clauses (1) through (7) above, being “Indemnified Taxes”).
(d) The applicable Payor shall make any required withholding or deduction and remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. Whenever in Upon request, the Funding Note Indenture there is mentioned, in any context, Company shall provide the Trustee with official receipts or other documentation evidencing the payment of the principal ofTaxes with respect to which Additional Amounts are paid. Each Guarantor will indemnify and hold harmless each Holder and Beneficial Holder for the amount of (1) any Indemnified Taxes not withheld or deducted by such Guarantor and levied or imposed and paid by such Holder or Beneficial Holder as a result of payments made under or with respect to the Note Guarantees, (2) any liability (including penalties, interest and expenses) arising therefrom or interest with respect thereto, and (3) any Indemnified Taxes imposed with respect to any reimbursement under Section 2.13(c)(1) or premium onSection 2.13(c)(2) above.
(e) If a Payor is or will become obligated to pay Additional Amounts under or with respect to any payment made on a Note Guarantee, then at least thirty (30) days prior to the date of such payment (or, if such obligation to pay Additional Amounts arises shortly before or in respect ofafter the 30th day prior to such date, promptly after the Funding Note or date that the net proceeds received obligation to pay Additional Amount arises), such Payor will deliver to the Trustee an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts to Holders on the sale relevant payment date.
(f) Whenever in this Indenture there is mentioned in any context: (1) the payment of principal; (2) redemption prices or exchange purchase prices in connection with a redemption or purchase of Notes; (3) interest; or (4) any other amount payable on or with respect to any of the Funding NoteNotes or any Note Guarantee, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture as described under this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;.
(g) The obligations described under this heading will survive any taxtermination, duty, levy, assessment defeasance or other governmental charge that would not have been imposed but for discharge of this Indenture and any transfer by an election by the applicable Holder or Beneficial Holder of Notes to another applicable Holder or Beneficial Holder, and will apply, mutatis mutandis, to any jurisdiction in which any successor to the Funding NoteCompany or any Guarantor is incorporated, the effect of engaged in business for tax purposes or resident for tax purposes, or any jurisdiction from or through which is to make such successor makes any payment on a Note Guarantee and, in respect of the Funding Note subject to United States Federal income tax each case, any department or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) political subdivision thereof or (g) abovetherein.
Appears in 1 contract
Sources: Trust Indenture
Additional Amounts. If (a) With respect to any series of Notes, if any deduction or withholding for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (collectively, “Taxes”) imposed or levied by or on behalf of (i) any jurisdiction in which the Funding Note Certificate provide Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority thereof or therein having power to tax, or (ii) any jurisdiction from or through which payment on the Notes of such series or any of the Guarantees is made, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (i) and (ii), a “Relevant Taxing Jurisdiction”), shall at any time be required from any payments made with respect to the Notes of such series or the Guarantees, including payments of principal, Redemption Price, interest or premium, if any, the Payor or the relevant Guarantor, as applicable, shall pay (together with such payments) such additional amounts pursuant to Paragraph 2 of the Notes (“Additional Amounts”).
(b) The Payor and each Guarantor or successor Guarantor 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. Upon written request, the Payor and each Guarantor shall use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of Additional Amounts, Global Funding agrees any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to pay each Holder. The Payor and each Guarantor or successor Guarantor 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 Notes then outstanding and (y) the amount of such withholding Taxes paid per $1,000 principal amount of the Notes.
(c) At least 10 days prior to the Holder first date on which payment of principal, premium, if any, or interest on the Funding Note Additional Amounts as provided Notes of any series or the Guarantees is to be made, and at least 10 days prior to any subsequent such date if there has been any change with respect to the matters set forth in the Funding Note Certificate. Whenever Officers’ Certificate described in this Section 4.7, the Issuer shall furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate instructing the Trustee and the Paying Agent that such payment of principal, premium, if any, or interest on the Notes (whether or not in the Funding Note form of Definitive Notes) or any Guarantee shall be made to the Holders with withholding or deduction (but only in case such payment shall be made with such withholding or deduction) for, or on account of, Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction.
(d) Wherever in this Indenture or the Notes of such series there is are mentioned, in any context, (i) the payment of the principal ofprincipal, or (ii) purchase prices in connection with a purchase of Notes, (iii) interest or premium on, (iv) any other amount payable on or in with respect of, to the Funding Note Notes of such series or the net proceeds received on the sale or exchange of the Funding NoteGuarantees, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note as described in this Indenture or pursuant to the Funding Note Indenture and such Notes to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;.
(e) The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any taxloss, dutyliability or expense incurred without negligence, levy, assessment willful default or other governmental charge that is payable otherwise than fraud on their part arising out of or in connection with actions taken or omitted by withholding from payments any of them in respect of the Funding Note;reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.7.
(f) Obligations under this Section 4.7 shall survive any taxtermination, duty, levy, assessment defeasance or other governmental charge imposed by reason discharge of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovethis Indenture.
Appears in 1 contract
Sources: Indenture (Smurfit Westrock PLC)
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder of Notes or that the Funding Note Additional Amounts as provided in Guarantors make under or with respect to the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guarantees shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments on the Funding Note by or on behalf of any jurisdiction (other than the United States, any state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, resident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the Paying Agent) makes any payment on the Notes or by or within any department, political subdivision or governmental authority of or in any of the United States foregoing having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless such Issuer or Guarantor or other applicable withholding agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If either Issuer, a Guarantor or other applicable withholding agent is required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Guarantee, such Issuer or Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder each beneficial owner of the Funding Note, Notes after giving effect to such withholding or deduction, whether deduction (including any withholding or deduction in respect of any Additional Amounts) will not currently payable, will equal be less than the amount that the beneficial owner would have received if such Taxes had not been received under withheld or deducted.
(b) None of the Funding Note were no such deduction Issuers or withholding required; provided that no such Guarantors shall, however, pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes, duty, levy, assessment to the extent such Taxes are imposed or other governmental charge imposed which would not have been imposed but for levied by a Holder Relevant Taxing Jurisdiction by reason of the Holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with such Relevant Taxing Jurisdiction (other than the United Statesmere receipt, includingownership, without limitation, being holding or having been a citizen or resident thereofdisposition of the Notes, or having been presentby reason of the receipt of any payments in respect of any Notes or any Guarantee, having been incorporated in, having engaged in a trade or business the exercise or having (enforcement of rights under any Notes or having had) a permanent establishment or principal office therein, any Guarantee);
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any Taxes to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which extent such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is Taxes are imposed or withheld solely by reason of the failure of the Holder or beneficial owner or a Holder of the Funding Note Notes, following the Issuers’ written request addressed to the Holder or beneficial owner, to comply with any certification, identification identification, information or information other reporting requirements concerning (to the nationality, residence, identity extent such holder or connection with the United States of the beneficial owner or a Holder of the Funding Noteis legally eligible to do so), if compliance is whether required by statute, by treaty, regulation of the United States Treasury Department, judicial or administrative interpretationpractice of a Relevant Taxing Jurisdiction, other law or by an applicable income tax treaty to which the United States is a party as a condition precondition to exemption from from, or reduction in the rate of deduction or withholding of, such taxTaxes imposed by the Relevant Taxing Jurisdiction (including, dutywithout limitation, levy, assessment a certification that the Holder or other governmental chargebeneficial owner is not resident in the Relevant Taxing Jurisdiction);
(diii) any estate, inheritance, gift, estatesales, transfer, personal property, sales, transfer property or similar tax, duty, levy, assessment, or similar governmental chargeTaxes;
(eiv) any tax, duty, levy, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding from payments in made under or with respect of to the Funding NoteNotes or any Guarantee;
(fv) any tax, duty, levy, assessment Tax imposed on or other governmental charge imposed with respect to any payment by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) any of the Code for United States Federal income tax purposes provided Issuers or Guarantors 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 such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but on such payment had such beneficial owner been the holder of such Note;
(vi) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union or the United Kingdom;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for an election by payment (where presentation is required) more than 30 days after the relevant payment is first made available 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);
(viii) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Funding NoteInternal Revenue Code of 1986 as of the August 2019 Issue Date (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 or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 1471(b)(1) of the effect Internal Revenue Code of which is to make payment 1986 as of the August 2019 Issue Date (or any amended or successor version described above), and including (for the avoidance of doubt) any intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionsforegoing; or
(hix) any combination of items the foregoing.
(ac) The Issuers and the Guarantors, if the applicable withholding agents, shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or any Guarantee is due and payable, if the Issuers or any Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or any Guarantee is due and payable, in which case it will be promptly thereafter), the Issuers shall deliver to the Trustee, with a copy to the Paying Agent, an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including, without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (bi) the execution, issue, delivery or registration of the Notes or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, the Notes or any Guarantee. Upon written request, any of the Issuers or a Guarantor will furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02, in such form as provided in the normal course by the taxing authority imposing such Taxes. If, notwithstanding the efforts of such Issuer or Guarantor to obtain such receipts, the same are not obtainable, such Issuer or Guarantor will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee such information as may be reasonably available to such Issuer and the Guarantors (and not otherwise in the possession of the Trustee) to enable determination of the amount of any withholding Taxes attributable to any particular Holder(s).
(e) Whenever this Indenture or the Notes refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to a Guarantee), (c)such reference includes the payment of Additional Amounts, (d), (e), if applicable.
(f) This Section 4.12 will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction (gother than the United States, any state thereof or the District of Columbia) abovein which any successor Person to any of the Issuers or Guarantors is organized, resident or doing business for tax purposes or any jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on the Notes (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to tax.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Notes shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on payments on the Funding Note by or on behalf of any governmental authority jurisdiction in which any Issuer is organized or is a resident for tax purposes or from or through which any of the United States having foregoing makes any payment on the power Notes or by or within any department or political subdivision thereof (each, a “Relevant Taxing Jurisdiction”), unless such Issuer is required to taxwithhold or deduct Taxes by law or by the interpretation or administration of law. If an Issuer is required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, so such Issuer shall pay additional amounts in cash (“Additional Amounts”) as may be necessary to ensure that the net amount received by the each Holder of the Funding Note, after giving effect to such withholding or deduction, whether deduction (including withholding or deduction attributable to Additional Amounts payable hereunder) shall not currently payable, will equal be less than the amount that the Holder would have received if such Taxes had not been received under withheld or deducted.
(b) Notwithstanding the Funding Note were no such deduction foregoing, none of the Issuers shall pay Additional Amounts to a Holder or withholding required; provided that no beneficial owner of any Note:
(i) to the extent the Taxes giving rise to such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder the Holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with the United StatesRelevant Taxing Jurisdiction (other than a connection arising by reason of the acquisition, ownership, holding or Disposition of the Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes or this Indenture);
(ii) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the failure of the Holder or beneficial owner of Notes, following any Issuer’s written request addressed to the Holder, to the extent such Holder or beneficial owner is legally entitled to do so, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, being a certification that the Holder or having been a citizen beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(iii) in respect of any Tax imposed or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) withheld pursuant to Sections 1471 through 1474 of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder this Indenture (or any amended or successor version of such sections that is substantively comparable), current or future Treasury Regulations issued thereunder or any official interpretation thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Funding NoteCode as of the date of this Indenture (or any amended or successor version described above), and any intergovernmental agreement (or related governmental regulations, rules or official administrative practices) implementing the foregoing;
(biv) with respect to any taxestate, dutyinheritance, levygift, assessment sales, transfer or personal property tax or any similar Taxes;
(v) if such Holder is a fiduciary or partnership or Person other governmental charge which than the sole beneficial owner of such payment and the Taxes giving rise to such Additional Amounts would not have been imposed on such payment had such Holder been the beneficiary, partner or sole beneficial owner, as the case may be, of such Note (but only if there is no material cost or expense associated with transferring such Note 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);
(vi) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the presentation by the Holder of any Funding Note (Note, where presentation is required) , for payment on a date more than 30 days after the date on which such payment becomes became due and payable or the date on which payment thereof is duly provided for, for whichever occurs later;; and
(vii) with respect to any combination of the items listed above.
(c) any tax, duty, levy, assessment The Issuers shall (i) make such withholding or other governmental charge which is imposed deduction required by applicable law and (ii) remit the full amount deducted or withheld solely by reason to the relevant authority in accordance with applicable law. The Issuers shall make reasonable efforts to obtain certified copies of tax receipts evidencing the failure payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes. The Issuers shall provide to the beneficial owner Trustee, within a reasonable time after the date the payment of any Taxes so deducted or withheld are due pursuant to applicable law, either a Holder certified copy of the Funding Note to comply with certificationtax receipts evidencing such payment, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Noteor, if compliance is required such tax receipts are not reasonably available to the Issuers, such other documentation that provides reasonable evidence of such payment by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;Issuers.
(d) At least 30 calendar days prior to each date on which any inheritancepayment under or with respect to the Notes is due and payable, giftif the Issuers shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes is due and payable, estatein which case it will be promptly thereafter), personal propertythe Issuers shall deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and shall set forth such other information necessary to enable the Trustee to pay such Additional Amounts to the Holders on the payment date. The Issuers shall promptly publish a notice in accordance with Section 13.02 stating that such Additional Amounts will be payable and describing the obligations to pay such amounts. The Issuers, salesjointly and severally, transfer shall indemnify and hold harmless the Holders, and, upon written request of any Holder, reimburse such Holder for the amount of (i) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by such Holder in connection with payments made under or with respect to the Notes held by such Holder; and (ii) any Taxes levied or imposed by a Relevant Taxing Jurisdiction with respect to any reimbursement under the foregoing clause (i) or this clause (ii), so that the net amount received by such Holder after such reimbursement shall not be less than the net amount such H▇▇▇▇▇ would have received if the Taxes giving rise to the reimbursement described in clauses (i) and/or (ii) had not been imposed; provided, however, that the indemnification obligation provided for in this paragraph shall not extend to Taxes imposed for which the eligible Holder would not have been eligible to receive payment of Additional Amounts hereunder or to the extent such H▇▇▇▇▇ received Additional Amounts with respect to such payments. In addition, the Issuers shall pay (i) any present or future stamp, issue, registration, court, documentation, excise or other similar taxtaxes, dutycharges and duties, levyincluding interest and penalties with respect thereto, assessmentimposed by any Relevant Taxing Jurisdiction in respect of the execution, issue, registration or delivery of the Notes or any other document or instrument referred to thereunder and (ii) any such taxes, charges or duties imposed by any jurisdiction as a result of, or similar governmental charge;in connection with, the enforcement of the Notes and/or any other such document or instrument.
(e) The obligations described under this Section 4.12 shall survive any taxtermination, duty, levy, assessment defeasance or other governmental charge that discharge of this Indenture and shall apply mutatis mutandis to any successor Person to an Issuer and to any jurisdiction in which any such successor is payable organized or is otherwise than resident for tax purposes or any jurisdiction from or through which payment is made by withholding from payments in respect of the Funding Note;such successor or its respective agents.
(f) Whenever this Indenture or the Notes refer to, in any taxcontext, dutythe payment of principal, levypremium, assessment if any, interest or any other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) amount payable under or with respect to any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, such reference includes the effect payment of which is to make payment in respect of the Funding Note subject to United States Federal income tax Additional Amounts or withholding tax provisions; or
(h) any combination of items (a)indemnification payments as described hereunder, (b), (c), (d), (e), (f) or (g) aboveif applicable.
Appears in 1 contract
Sources: Indenture (Difl Us Ii LLC)
Additional Amounts. If At least 30 days prior to each date on which payment of principal, premium, if any, or interest or other amounts on the Funding Note Notes is to be made (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”) with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide for the Trustee with documentation evidencing the payment of such Additional Amounts, Global Funding agrees to pay . Copies of such documentation shall be made available to the Holder Holders upon request. The Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.12. The Issuer and each Guarantor (as applicable) will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer and each Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copy to the Trustee. If the Issuer or the Guarantors conduct business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, are required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply to such Holders as if references in such provision to “Taxes” included taxes imposed by way of deduction or withholding by any such Additional Taxing Jurisdiction (or any political subdivision thereof or taxing authority therein). The Issuer will pay any present stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in 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 Funding 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 Additional Amounts Guarantee or any other document or instrument referred to therein. If at any time the Issuer changes its place of organization to outside of the United States or there is a new issuer organized outside of the United -40- States, the Issuer or new issuer, as provided 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 Funding 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 CertificateGuarantee or any other document or instrument referred to therein under any law, rule or regulation in effect at the time of such change or thereafter. The foregoing obligations of this Section 4.12 and Paragraph 2 of the Notes will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Issuer or the Guarantors. Whenever in this Indenture or in the Funding Notes or any Note Indenture Guarantee there is mentioned, in any context, the payment of the principal ofprincipal, purchase price, premium or interest, if any, or interest any other amount payable under or premium on, or in with respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding to any Note, such reference mention shall be deemed to include reference to mention of the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
Appears in 1 contract
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder of Securities or that the Funding Note Additional Amounts as provided in Guarantors make under or with respect to the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guaranties shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on payments on the Funding Note by or on behalf of (1) any governmental authority in political subdivision or Governmental Authority thereof or therein having power to tax, (2) any jurisdiction from or through which payment on the United States Securities or the relevant Guaranty is made on behalf of the Issuers or any Guarantor, or any political subdivision or Governmental Authority thereof or therein having the power to tax, or (3) any other jurisdiction in which the Issuers or any Guarantor is organized or resident, or any political or Governmental Authority thereof or therein having the power to tax (each of clauses (1), (2) and (3), a “Relevant Taxing Jurisdiction”), unless the Issuers or such Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If the Issuers or a Guarantor is required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Securities, the Issuers or the Guarantor, as the case may be, shall, subject to the exceptions set forth in Section 2.16(b), pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by each Holder of the Securities after such withholding or deduction (including withholding or deduction attributable to Additional Amounts payable hereunder) shall not be less than the amount the Holder would have received if such Taxes had not been withheld or deducted.
(b) Neither the Issuers nor any Guarantor will, however, be required to pay Additional Amounts to a Holder or beneficial owner of a Security:
(1) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the Holder’s or beneficial owner’s present or former connection with the Relevant Taxing Jurisdiction (other than the acquisition, ownership, holding or disposition of a Security or by reason of the receipt of payments thereunder or under any Guaranty or the exercise or enforcement of rights under any Securities or this Indenture or under any Guaranty);
(2) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the failure of the Holder or beneficial owner of Securities, following the Issuers’ written request addressed to the Holder, to the extent such Holder or beneficial owner is legally entitled to do so, to comply with any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Taxing Jurisdiction);
(3) with respect to any estate, inheritance, gift, sales, transfer or personal property tax or any similar Taxes (other than stamp, issue, registration, court, documentation, excise or other similar Taxes referred to in Section 2.16(f));
(4) if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment and the Taxes giving rise to such Additional Amounts would not have been imposed on such payment had such 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);
(5) with respect to any Taxes that are payable otherwise than by deduction or withholding from payments on, or in respect of, the applicable Security or Guaranty;
(6) with respect to any Taxes imposed on amounts payable to such Holder or beneficial owner at the time such Holder becomes a party to this Indenture, except to the extent that such Holder’s transferor or assignor (if any) was entitled, at the time of assignment, to receive Additional Amounts with respect to such Taxes pursuant to Section 2.16(a); and
(7) with respect to any combination of the items listed above.
(c) The Issuers and the Guarantors will (1) make such withholding or deduction required by applicable law and (2) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Issuers and the Guarantors will provide to the Trustee either a certified copy of tax receipts evidencing such payment or, if such tax receipts are not reasonably available to the Issuers or such Guarantor, such other documentation that provides reasonable evidence of such payment by the Issuers or such Guarantor.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Issuers or the Guarantors shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Securities is due and payable, in which case it shall be promptly thereafter), the Issuers shall deliver to the Trustee an Officers’ Certificate stating that such Additional Amounts shall be payable and the amounts so payable and shall set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date. The Issuers and the Guarantors shall promptly publish a notice in accordance with Section 11.2 stating that such Additional Amounts will be payable and describing the obligation to pay such amounts.
(e) The Issuers and the Guarantors, jointly and severally, shall indemnify and hold harmless the Trustee and the Holders of Securities, and, upon written request of the Trustee or any Holder of Securities, reimburse the Trustee or such Holder for the amount of (1) any Taxes levied or imposed by a Relevant Taxing Jurisdiction and payable by the Trustee or such Holder in connection with payments made under or with respect to the Securities held by such Holder or any Guaranties; and (2) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (1) or this clause (2), so that the net amount received by the Trustee or such Holder after such reimbursement shall not be less than the net amount the Trustee or such Holder would have received if the Taxes giving rise to the reimbursement described in clauses (1) and/or (2) had not been imposed; provided, however, that the indemnification obligation provided for in this Section 2.16(e) shall not extend to Taxes imposed for which the eligible Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which Securities would not have been imposed but for a eligible to receive payment of Additional Amounts hereunder or to the extent such Holder or beneficial owner received Additional Amounts with respect to such payments.
(f) The Issuers and the Guarantors shall pay and jointly and severally shall indemnify and hold harmless the Trustee and the Holders of Securities, and upon written request of the Funding NoteTrustee or any Holder of Securities, (i) having reimburse the Trustee or such Holder for the amount of any present or former connection with the United Statesfuture stamp, includingissue, without limitationregistration, being or having been a citizen or resident thereofcourt, or having been presentdocumentation, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment excise or other governmental charge which would not have been similar taxes, charges and duties, including interest and penalties with respect thereto, imposed but for the presentation of by any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments Relevant Taxing Jurisdiction in respect of the Funding Note;
(f) execution, issue, registration or delivery of the Securities or any taxGuaranties or any other document or instrument referred to thereunder and any such taxes, duty, levy, assessment charges or other governmental charge duties imposed by reason of payments on any jurisdiction as a result of, or in connection with, the Funding Note being treated as contingent interest described in Section 871(h)(4) enforcement of the Code Securities or any Guaranty and/or any other such document or instrument. The provisions of this Section 2.16 shall survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Issuers or any Guarantor and to any jurisdiction in which such successor is organized or is otherwise resident for United States Federal income tax purposes provided that or any jurisdiction from or through which payment is made by such treatment was described successor or its respective agents. Whenever this Indenture refers to, in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Notecontext, the effect payment of which is principal, premium, if any, interest or any other amount payable under or with respect to make any Security, such reference includes the payment in respect of the Funding Note subject to United States Federal income tax Additional Amounts or withholding tax provisions; or
(h) any combination of items (a)indemnification payments as described hereunder, (b), (c), (d), (e), (f) or (g) aboveif applicable.
Appears in 1 contract
Sources: Indenture (FRNK Technology Group)
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuer makes under or with respect to the Holder of Notes or that the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, Guarantors make under or interest or premium on, or in with respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment Guarantees will be made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments on the Funding Note by or on behalf of any jurisdiction in which the Issuer or any Guarantor is incorporated, organized, resident or doing business for tax purposes or any jurisdiction from or through which any payment on the Notes is made (including the jurisdiction of any Paying Agent) or by or within any political subdivision or governmental authority of or in any of the United States foregoing having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless the Issuer or such Guarantor, as the case may be, is required to withhold or deduct Taxes by law. If any amounts for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction are required to be withheld or deducted from any payment made under or with respect to the Notes or any Guarantee, the Issuer or the Guarantor, as the case may be, will pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether deduction (including any withholding or deduction in respect of any Additional Amounts) will not currently payable, will equal be less than the amount that would have been received under if such Taxes had not been withheld or deducted.
(b) Notwithstanding the Funding Note were no such deduction or withholding required; provided that no such foregoing, neither the Issuer nor any Guarantor will, however, be required to pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes, duty, levy, assessment to the extent such Taxes are imposed or other governmental charge imposed which would not have been imposed but for levied by a Holder Relevant Taxing Jurisdiction by reason of the holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with the United Statessuch Relevant Taxing Jurisdiction, including, without limitation, being the holder or having been a citizen or resident thereofbeneficial owner being, or having been presentbeen, a citizen, national, or resident, being, or having been incorporated inbeen, having engaged in a trade or business business, or having (or having had) had a permanent establishment in a Relevant Taxing Jurisdiction (but not including, in each case, any connection arising from the mere receipt, ownership, holding or principal office thereindisposition of Notes, or by reason of the receipt of any payments in respect of any Note or any Guarantee, or the exercise or enforcement of rights under any Notes or any Guarantee);
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any Taxes to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which extent such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is Taxes are imposed or withheld solely by reason of the failure of the holder or beneficial owner of Notes, following the Issuer’s or Guarantor’s written request addressed the relevant holder or beneficial owner made at a Holder of time that would enable the Funding Note holder or beneficial owner acting reasonably to comply with such request, to comply with any certification, identification identification, information or information other reporting requirements concerning (to the nationality, residence, identity extent such holder or connection with the United States of the beneficial owner or a Holder of the Funding Noteis legally eligible to do so), if compliance is whether required by statute, by treaty, regulation of the United States Treasury Department, judicial or administrative interpretationpractice of a Relevant Taxing Jurisdiction, other law or by an applicable income tax treaty to which the United States is a party as a condition precondition to exemption from such taxfrom, dutyor reduction in the rate of deduction or withholding of, levyTaxes imposed by the Relevant Taxing Jurisdiction (including, assessment without limitation, a certification that the holder or other governmental chargebeneficial owner is not resident in the Relevant Taxing Jurisdiction);
(diii) any estate, inheritance, gift, estatesales, transfer, personal property, sales, transfer property or similar tax, duty, levy, assessment, or similar governmental chargeTaxes;
(eiv) any tax, duty, levy, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding from payments in made under or with respect of to the Funding NoteNotes or any Guarantee;
(fv) any taxTax imposed on or with respect to any payment by the Issuer or Guarantor to the holder if such holder is a fiduciary, dutypartnership, levy, assessment limited liability company or person other governmental charge imposed by reason than the sole beneficial owner of payments on such payment to the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided extent that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but for an election by on such payment had such holder been the Holder sole beneficial owner of such Note;
(vi) any Taxes, to the extent such Taxes were imposed as a result of the Funding Note, presentation of a Note for payment (where presentation is required in order to receive payment) more than 30 calendar days after the effect relevant payment is first made available 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 which is to make payment such 30 calendar days’ period);
(vii) any Taxes withheld or deducted on or in respect of any Note pursuant to Sections 1471 through 1474 of the Funding Note subject U.S. Internal Revenue Code of 1986, as amended (commonly referred to as “FATCA”), any treaty, law, regulation or other official guidance enacted by any jurisdiction implementing FATCA, any agreement between either of the Issuer, any Guarantor or any other person and the United States Federal income tax or withholding tax provisions; ora Relevant Taxing Jurisdiction implementing FATCA, or any law of any jurisdiction implementing an intergovernmental agreement entered into between the Relevant Taxing Jurisdiction and the United States with respect to FATCA;
(hviii) any combination of items (ai) through (vii) above.
(c) The Issuer or the relevant Guarantors, as the case may be, will (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant taxing authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or any Guarantee is due and payable, if the Issuer or a Guarantor become aware that it will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to the Notes or any Guarantee is due and payable, in which case it will be promptly thereafter), the Issuer or the relevant Guarantor (b), as the case may be) will deliver to the Trustee (c), copied to the Paying Agent) an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Paying Agent to pay such Additional Amounts to holders on the payment date. The Trustee and Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuer or the relevant Guarantor (d), as the case may be) will promptly publish a notice in accordance with this Indenture stating that such Additional Amounts will be payable and describing the obligation to pay such amounts.
(e) In addition, the Issuer or the Guarantors (as the case may be) will pay any present or future stamp, issue, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including without limitation, interest and penalties with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of the execution, issue, delivery, registration or enforcement of the Notes or any Guarantee or any other document or instrument referred to thereunder (other than on or in connection with a transfer of the Notes other than the initial resale by the Initial Purchasers) or the receipt of any payments with respect thereto (limited, solely in the case of taxes attributable to the receipt of any payments with respect thereto, to any such taxes not excluded under clauses (i) through (iii) of Section 4.10(b) or (v) through (vii) of Section 4.10(b) or any combination thereof), .
(f) Upon written request, the Issuer or a Guarantor (as the case may be) will furnish to the Trustee or a holder within a reasonable time certified copies of tax receipts evidencing the payment by the Issuer or such Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with this Indenture, in such form as provided in the normal course by the taxing authority imposing such Taxes and as is reasonably available to the Issuer or such Guarantor. If, notwithstanding the efforts of the Issuer or Guarantor to obtain such receipts, the same are not obtainable, the Issuer or such Guarantor will provide the Trustee or such holder with other evidence reasonably satisfactory to the Trustee or holder of such payments by the Issuer or Guarantor.
(g) aboveWhenever this Indenture or the Notes refer to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Note (including payments thereof made pursuant to a Guarantee), such reference includes the payment of Additional Amounts, if applicable.
(h) The preceding provisions will survive any termination, defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor person to the Issuer or any Guarantor is incorporated, organized, resident or doing business for tax purposes or any jurisdiction from or through which any payment is made on the Notes (or any Guarantee) and any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Danaos Corp)
Additional Amounts. If At least 30 days prior to each date on which payment of principal, premium, if any, or interest or other amounts on the Funding Note Notes is to be made (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or a Guarantor will be obligated to pay Additional Amounts pursuant to Paragraph 2 of the Notes (the “Additional Amounts”) with respect to any such payment, the Issuer will promptly furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable, and will set forth such other information necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Issuer or a Guarantor (as applicable) will pay to the Trustee or the Paying Agent such Additional Amounts and, if paid to a Paying Agent other than the Trustee, shall promptly provide for the Trustee with documentation evidencing the payment of such Additional Amounts, Global Funding agrees to pay . Copies of such documentation shall be made available to the Holder Holders upon request. The Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any loss, liability or expense incurred without negligence or willful misconduct on their part (in each case as adjudicated by a court of competent jurisdiction in a final, non-appealable judgment) arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished to them pursuant to this Section 4.12. The Issuer and each Guarantor (as applicable) will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law. The Issuer and each Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copy to the Trustee. If the Issuer or the Guarantors conduct business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, are required by the law of such Additional Taxing Jurisdiction to deduct or withhold any amount on account of taxes imposed by such Additional Taxing Jurisdiction from payments under the Notes which would not have been required to be so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, the Additional Amounts provision described above shall be considered to apply to such Holders as if references in such provision to “Taxes” included taxes imposed by way of deduction or withholding by any such Additional Taxing Jurisdiction (or any political subdivision thereof or taxing authority therein). The Issuer will pay any stamp, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any penalties, interest or other liabilities related thereto) which arise in any Relevant Taxing Jurisdiction from the execution, delivery and registration of Notes upon original issuance and initial resale of the Funding 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 Additional Amounts Guarantee or any other document or instrument referred to therein. If at any time the Issuer changes its place of organization to outside of the United States or there is a new issuer organized outside of the United States, the Issuer or new issuer, as provided 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 Funding 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 CertificateGuarantee 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. Whenever The foregoing obligations of this Section 4.12 and Paragraph 2 of the Notes will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Issuer or the Guarantors. Wherever in this Indenture or the Funding Notes or any Note Indenture Guarantee there is are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under this Indenture or the principal ofNotes, or (3) interest or premium on, (4) any other amount payable on or in with respect of, the Funding Note or the net proceeds received on the sale or exchange to any of the Funding NoteNotes or any Note Guarantee, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture as described in this Section 4.12 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any withholding or deduction for or on account of any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority in the United States having the power to tax, so that the net amount received by the Holder of the Funding Note, after giving effect to such withholding or deduction, whether or not currently payable, will equal the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of the Funding Note, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
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Additional Amounts. All payments made under or with respect to the Notes under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, 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 organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes,” unless the Issuer or any Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency provided, however, that in determining what withholding is required by law for U.S. federal income and withholding tax purposes, the Issuer and any Guarantor shall be entitled to treat any payments on or in respect of the Notes or any Note Guarantee as if the Notes or any Note Guarantee were issued by a U.S. person as defined in section 7701(a)(30) of the Code. If the Funding Issuer or any Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Certificate provide Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount — “Additional Amounts” — as may be necessary so that the net amount (including Additional Amounts) received by each Holder after such withholding or deduction (including any withholding or deduction on such Additional Amounts) will not be less than the amount such A-4 Holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any Holder or beneficial owner to the extent such Taxes are imposed by reason of (i) such Holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, otherwise than by the acquisition, ownership, holding or disposition of the Notes, the enforcement of rights under the Notes or under any Note Guarantee or the receipt of payments in respect of the Notes or any Note Guarantee, or (ii) such Holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer or the Guarantors to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the 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 for purposes of this obligation to pay Additional Amounts, Global Funding agrees the Issuer and any Guarantor shall be entitled, for U.S. federal income and withholding tax purposes, to pay 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 shall be payable with respect to (i) any Tax imposed by the United States or any political subdivision or governmental authority thereof or therein on interest by reason of any Holder or beneficial owner holding or owning, 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 by the United States or any political subdivision or governmental authority thereof or therein on interest by reason of any Holder or beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Code with respect to the Holder Issuer or any Guarantor. The Issuer or Guarantor (as applicable) will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the Funding Note Additional Amounts payment by the Issuer or Guarantor (as provided applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Funding Indenture or the Notes or any Note Certificate. Whenever in the Funding Note Indenture Guarantee there is are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the principal ofIndenture or the Notes, or (3) interest or premium on, (4) any other amount payable on or in with respect of, the Funding Note or the net proceeds received on the sale or exchange to any of the Funding NoteNotes or any Note Guarantee, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such termsthereof. The Issuer will pay any present stamp, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will paycourt or documentary taxes, or cause to be paidany other excise, Additional Amounts to a Holder of the Funding Note to compensate for any withholding property or deduction for or on account of any present or future similar taxes, dutiescharges or levies (including any penalties, levies, assessments interest or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority other liabilities related thereto) which arise in the United States having or any political subdivision thereof or therein, from the power to taxexecution, so that the net amount received by the Holder delivery and registration of Notes upon original issuance and initial resale of the Funding Note, after giving effect Notes or any other document or instrument referred to such withholding therein or deduction, whether or not currently payable, will equal in connection with the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner enforcement of the Funding Note, (i) having Notes or any present Note Guarantee or former connection with 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, includingthe Issuer or new issuer, without limitationas applicable, being will pay any stamp, court or having been a citizen or resident thereofdocumentary taxes, or having been presentany other excise, having been incorporated inproperty or similar taxes, having engaged charges or levies (including any penalties, interest or other liabilities A-5 related thereto) which arise in a trade the jurisdiction in which the Issuer or business or having new issuer is organized (or having hadany political subdivision thereof or therein) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within and are payable by the meaning of Section 957(a) Holders of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments Notes in respect of the Funding Note;
(f) Notes or any taxother document or instrument referred to therein under any law, dutyrule or regulation in effect at the time of such change. The foregoing obligations will survive any termination, levy, assessment defeasance or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) discharge of the Code for United States Federal income tax purposes provided that such treatment was described Indenture. References in this section (“Additional Amounts”) to the Pricing Supplement;
(gIssuer or any Guarantor shall apply to any successor(s) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovethereto.
Appears in 1 contract
Additional Amounts. If (a) All payments made by or on behalf of the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuer or any Guarantor (each a “Payor”) under or with respect to the Holder Notes or any Note Guarantee will be made free and clear of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxesTaxes, duties, levies, assessments unless such Payor is required to withhold or governmental charges deduct Taxes by law or by the interpretation or administration thereof. If a Payor is so required to withhold or deduct any amount for or on account of whatever nature Taxes imposed or levied on payments on the Funding Note by or on behalf of any governmental authority jurisdiction in which such Payor is organized, resident or carrying on business for tax purposes or from or through which such Payor makes any payment on the United States having Notes or any Note Guarantee or any department or political subdivision thereof (each, a “Relevant Taxing Jurisdiction”) from any payment made under or with respect to the power Notes or any Note Guarantee, such Payor, subject to taxthe exceptions stated below, so will pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received in respect of such payment by the each Holder of the Funding Note, or Beneficial Holder after giving effect to such withholding or deduction, whether deduction (including withholding or deduction attributable to Additional Amounts payable hereunder but excluding Taxes on net income) will not currently payable, will equal be less than the amount that the Holder or Beneficial Holder, as the case may be, would have received if such Taxes had not been received under the Funding Note were no such deduction required to be so withheld or withholding required; provided that no such deducted.
(b) A Payor will not, however, pay Additional Amounts shall be required for to a Holder or on account ofBeneficial Holder with respect to:
(a1) any tax, duty, levy, assessment or other governmental charge Canadian withholding Taxes imposed which would not have been imposed but for on a payment to a Holder or beneficial owner Beneficial Holder with which the Payor does not deal at arm’s length for the purposes of the Funding Note, Tax Act at the time of making such payment (i) having other than where the non-arm’s length relationship arises as a result of the exercise or enforcement of rights under any present Notes or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having any Note Guarantee);
(or having had2) a permanent establishment debt or principal office therein, (ii) being other obligation to pay an amount to a controlled foreign corporation person with whom the applicable Payor is not dealing at arm’s length within the meaning of Section 957(a) the Tax Act (other than where the non-arm’s length relationship arises as a result of the Code related exercise or enforcement of rights under any Notes or any Note Guarantee);
(3) any Canadian withholding Taxes imposed on a payment or deemed payment to a Holder or Beneficial Holder by reason of such Holder or Beneficial Holder being a “specified shareholder” of the Issuer (within the meaning of Section 864(d)(4subsection 18(5) of the CodeTax Act) at the time of payment or deemed payment, to or by reason of such Holder or Beneficial Holder not dealing at arm’s length for the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more Tax Act with a “specified shareholder” of the total combined voting power Issuer at the time of all classes of stock payment or deemed payment (other than where the Holder or Beneficial Holder is a “specified shareholder,” or does not deal at arm’s length with a “specified shareholder,” as a result of the Funding Agreement Provider entitled to vote within the meaning exercise or enforcement of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder rights under any Notes or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Noteany Note Guarantee);
(b4) any tax, duty, levy, assessment or other governmental charge which Taxes giving rise to such Additional Amounts that would not have been imposed but for the presentation existence of any Funding present or former connection between such Holder (or the Beneficial Holder of, or person ultimately entitled to obtain an interest in, such Notes, including a fiduciary, settler, beneficiary, member, partner, shareholder or other equity interest owner of, or possessor of power over, such Holder or Beneficial Holder, if such Holder or Beneficial Holder is an estate, trust, partnership, limited liability company, corporation or other entity) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, the Relevant Taxing Jurisdiction but not including any connection resulting solely from the acquisition, ownership, or disposition of Notes, the receipt of payments thereunder and/or the exercise or enforcement of rights under any Notes or any Note Guarantee);
(5) Taxes giving rise to such Additional Amounts that would not have been imposed but for the failure of such Holder or Beneficial Holder, to the extent such Holder or Beneficial Holder is legally eligible to do so, to timely satisfy any certification, identification, information, documentation or other reporting requirements concerning such Holder’s or Beneficial Holder’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction or arm’s length relationship with the Payor or otherwise establish the right to the benefit of an exemption from, or reduction in the rate of, withholding or deduction, if such compliance is required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, such Taxes imposed by the Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or Beneficial Holder is not resident in the Relevant Taxing Jurisdiction);
(6) any estate, inheritance, gift, sales, transfer, personal property, excise or any similar Taxes or assessment;
(7) any Taxes that were imposed with respect to any payment on a Note to any Holder who is a fiduciary or partnership or person other than the sole beneficial owner of such payment and to the extent the Taxes giving rise to 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 Note;
(8) Taxes imposed on, or deducted or withheld from, payments in respect of the Notes if such payments could have been made without such imposition, deduction or withholding of such Taxes had such Notes been presented for payment (where presentation is required) for payment on a date more than within 30 days after the date on which such payment becomes payments or such Notes became due and payable or the date on which payment thereof is duly provided for, whichever occurs lateris later (except to the extent such Holder or Beneficial Holder would have been entitled to such Additional Amounts had such Notes been presented on the last day of such 30 day period);
(c9) any tax, duty, levy, assessment or other governmental charge Tax which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes or any Note Guarantee;
(10) any Taxes that are imposed or withheld as a result of the presentation of any Note for payment by or on behalf of a Holder or Beneficial Holder who would have been able to avoid such withholding or deduction by presenting the relevant Note to another paying agent;
(11) any Taxes imposed under FATCA; or
(12) any combination of the foregoing subclauses (1) through (11).
(c) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes or any Note Guarantee is due and payable, if a Payor will be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 35th day prior to the date on which such payment is due and payable, in which case it will be promptly thereafter), the Payor will deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders and/or Beneficial Holders on the payment date.
(d) The Issuer will indemnify and hold harmless the Holders and Beneficial Holders of the Notes for the amount of any Taxes under Regulation 803 of the Tax Act, or any similar or successor provisions (other than Taxes described in subclauses (1) through (12) above (but including, notwithstanding subclause (9), any Taxes payable pursuant to Regulation 803 of the Tax Act) or Taxes arising by reason of a transfer of the Note to a person resident in Canada with whom the transferor does not deal at arm’s length for the purposes of the Tax Act except where such non-arm’s length relationship arises as a result of the exercise or enforcement of rights under any Notes or any Note Guarantee) levied or imposed on and paid by such a Holder or Beneficial Holder as a result of payments made under or with respect to the Notes or any Note Guarantee.
(e) In addition, the Payor will pay any stamp, issue, registration, court, documentation, excise or other similar taxes, charges and duties, including any interest, penalties and any similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction at any time in respect of the Funding Note;execution, issuance, registration, delivery or enforcement of the Notes (other than on or in connection with a transfer of the Notes other than the initial sale by an Initial Purchaser), any Note Guarantee or any other document or instrument referred to thereunder and any such taxes, charges or duties imposed by any Relevant Taxing Jurisdiction on any payments made pursuant to the Notes or any Note Guarantee and/or any other such document or instrument (limited, solely in the case of taxes, charges or duties attributable to any payments with respect thereto, to any such taxes, charges or duties imposed in a Relevant Taxing Jurisdiction that are not excluded under Sections 4.21(b)(5) through (8) and (10) and (11)).
(f) The obligations under this Section 4.21 will survive any taxtermination, duty, levy, assessment defeasance or other governmental charge imposed by reason discharge of payments on the Funding Note being treated as contingent interest described this Indenture and will apply mutatis mutandis to any successor Person to any Payor and to any jurisdiction in Section 871(h)(4) of the Code which such successor is organized or is otherwise resident or doing business for United States Federal income tax purposes provided that or any jurisdiction from or through which payment is made by such treatment was described successor or its respective agents. Whenever this Indenture refers to, in any context, the Pricing Supplement;
(g) payment of principal, premium, if any, interest or any tax, duty, levy, assessment other amount payable under or other governmental charge that would not have been imposed but for an election by the Holder of the Funding with respect to any Note, such reference shall include the effect payment of which is to make payment in respect of the Funding Note subject to United States Federal income tax Additional Amounts or withholding tax provisions; or
(h) any combination of items (a)indemnification payments as described hereunder, (b), (c), (d), (e), (f) or (g) aboveif applicable.
Appears in 1 contract
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuer makes under or with respect to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in Notes or that any context, the payment of the principal of, Subsidiary Guarantor makes under or interest or premium on, or in with respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference to its Guarantee shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on payments on the Funding Note by or on behalf of any governmental authority jurisdiction in which the United States Issuer, the Subsidiary Guarantor or any Surviving Entity is incorporated, organized, engaged in business (where such Tax is imposed by reason of the Issuer, Subsidiary Guarantor, or Surviving Entity being engaged in business) or otherwise resident for tax purposes or from or through which any of the foregoing makes any payment on the Notes or by or within any department or political subdivision thereof having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless the Issuer or such Subsidiary Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If the Issuer or any Subsidiary Guarantor is required to withhold or deduct any amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, the Issuer or such Subsidiary Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder each holder of the Funding Note, Notes (including Additional Amounts) after giving effect to such withholding or deduction, whether or deduction will be not currently payable, will equal less than the amount that the holder would have received if such Taxes had not been received under required to be withheld or deducted.
(b) Neither the Funding Note were no such deduction or withholding required; provided that no such Issuer nor any Subsidiary Guarantor will, however, pay Additional Amounts shall be required for to a holder or beneficial owner of Notes in respect or on account of:
(ai) any taxTaxes that are imposed or levied by a Relevant Taxing Jurisdiction by reason of a present or former connection of a holder (or a fiduciary, dutysettlor, levybeneficiary, assessment member or shareholder of, or possessor of a power over, such holder, if the holder is an estate, a trust, a partnership or a corporation) or a beneficial owner with such Relevant Taxing Jurisdiction (other governmental charge than the mere receipt or holding of Notes or by reason of the receipt of payments thereunder or the exercise or enforcement of rights under any Notes or the Indenture);
(ii) any Taxes that are imposed which would not have been imposed but for a Holder or levied by reason of the failure of the holder or beneficial owner of Notes, following the Funding NoteIssuer’s written request addressed to the holder (and made at a time which would enable the holder or beneficial owner acting reasonably to comply with that request), to comply with any certification, identification, information or other reporting requirements which the holder or such beneficial owner is legally required to satisfy, whether imposed by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction (i) having any present or former connection with the United States, including, without limitation, being a certification that the holder or having been a citizen or beneficial owner is not resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, Relevant Taxing Jurisdiction);
(iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Codeany estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(iv) being an actual any Tax which is payable otherwise than by deduction or constructive owner of 10 percent withholding from payments made under or more of with respect to the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or Notes;
(v) being subject to backup withholding as any Tax that is imposed or levied by reason of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is requiredrequired in order to receive payment) of such Notes for payment on a date more than 30 days after the date on which such payment becomes became due and payable or the date on which payment thereof is duly provided for, whichever occurs is later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of except to the failure of extent that the beneficial owner or a Holder of holder thereof would have been entitled to Additional Amounts had the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from Notes been presented for payment on any date during such tax, duty, levy, assessment or other governmental charge30 day period;
(dvi) any inheritance, gift, estate, personal property, sales, transfer Tax imposed on or similar tax, duty, levy, assessment, with respect to any payment by the Issuer or similar governmental charge;
(e) any tax, duty, levy, assessment Subsidiary Guarantor to the holder if such holder is a fiduciary or partnership or person other governmental charge than the sole beneficial owner of such payment to the extent that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but for an election on such payment had such holder been the sole beneficial owner of such Note;
(vii) any Tax that is imposed on or with respect to a payment made to a holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the Holder relevant Notes to another paying agent in a member state of the Funding Note, the effect of which is to make payment European Union;
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive implementing the Funding Note subject conclusions of the 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 United States Federal income tax or withholding tax provisionsconform to, such Directive; or
(hix) any combination of items (a), (b), (c), (d), (e), (f) or (g) the above.
Appears in 1 contract
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder of Notes or that the Funding Note Additional Amounts as provided in Guarantors make under or with respect to the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guarantees shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments on the Funding Note by or on behalf of any jurisdiction (other than the United States, any state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, resident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the Paying Agent) makes any payment on this Note or by or within any department, political subdivision or governmental authority of or in any of the United States foregoing having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless such Issuer or Guarantor or other applicable withholding agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If either Issuer, a Guarantor or other applicable withholding agent is required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to this Note or any Guarantee, such Issuer or Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder each beneficial owner of the Funding NoteNotes, after giving effect to such withholding or deduction, whether deduction (including any withholding or deduction in respect of any Additional Amounts) will not currently payable, will equal be less than the amount that the beneficial owner would have received if such Taxes had not been received under withheld or deducted.
(b) None of the Funding Note were no such deduction Issuers or withholding required; provided that no such Guarantors will, however, pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes, duty, levy, assessment to the extent such Taxes are imposed or other governmental charge imposed which would not have been imposed but for levied by a Holder Relevant Taxing Jurisdiction by reason of the Holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with such Relevant Taxing Jurisdiction (other than the United Statesmere receipt, includingownership, without limitation, being holding or having been a citizen or resident thereofdisposition of this Note, or having been presentby reason of the receipt of any payments in respect of any Notes or any Guarantee, having been incorporated in, having engaged in a trade or business the exercise or having (enforcement of rights under any Notes or having had) a permanent establishment or principal office therein, any Guarantee);
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any Taxes to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which extent such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is Taxes are imposed or withheld solely by reason of the failure of the Holder or beneficial owner of this Note, following the Issuers’ written request addressed to the Holder or a Holder of the Funding Note beneficial owner, to comply with any certification, identification identification, information or information other reporting requirements concerning (to the nationality, residence, identity extent such holder or connection with the United States of the beneficial owner or a Holder of the Funding Noteis legally eligible to do so), if compliance is whether required by statute, by treaty, regulation of the United States Treasury Department, judicial or administrative interpretationpractice of a Relevant Taxing Jurisdiction, other law or by an applicable income tax treaty to which the United States is a party as a condition precondition to exemption from from, or reduction in the rate of deduction or withholding of, such taxTaxes imposed by the Relevant Taxing Jurisdiction (including, dutywithout limitation, levy, assessment a certification that the Holder or other governmental chargebeneficial owner is not resident in the Relevant Taxing Jurisdiction);
(diii) any estate, inheritance, gift, estatesales, transfer, personal property, sales, transfer property or similar tax, duty, levy, assessment, or similar governmental chargeTaxes;
(eiv) any tax, duty, levy, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding from payments in made under or with respect of the Funding Noteto this Note or any Guarantee;
(fv) any tax, duty, levy, assessment Tax imposed on or other governmental charge imposed with respect to any payment by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) any of the Code for United States Federal income tax purposes provided Issuers or Guarantors 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 such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but on such payment had such beneficial owner been the holder of such Note;
(vi) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union or the United Kingdom;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for an election by payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had this Note been presented on the last day of such 30-day period);
(viii) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Funding NoteInternal Revenue Code of 1986 as of the August 2019 Issue Date (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 or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 1471(b)(1) of the effect Internal Revenue Code of which is to make payment 1986 as of the August 2019 Issue Date (or any amended or successor version described above), and including (for the avoidance of doubt) any intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionsforegoing; or
(hix) any combination of items the foregoing.
(ac) The Issuers and the Guarantors, if the applicable withholding agents, shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to this Note or any Guarantee is due and payable, if the Issuers or any Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to this Note or any Guarantee is due and payable, in which case it will be promptly thereafter), the Issuers shall deliver to the Trustee, with a copy to the Paying Agent, an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 of the Indenture stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (bi) the execution, issue, delivery or registration of this Note or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, this Note or any Guarantee. Upon written request, any of the Issuers or a Guarantor will furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or such Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02 of the Indenture, in such form as provided in the normal course by the taxing authority imposing such Taxes. If, notwithstanding the efforts of such Issuer or Guarantor to obtain such receipts, the same are not obtainable, such Issuer or such Guarantor will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee such information as may be reasonably available to such Issuers and the Guarantors (and not otherwise in the possession of the Trustee) to enable the determination of the amount of any withholding taxes attributable to any particular Holder(s).
(e) Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to this or any other Note (including payments thereof made pursuant to a Guarantee), (c)such reference includes the payment of Additional Amounts, (d), (e), if applicable.
(f) This paragraph 2 will survive any termination, defeasance or discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction (gother than the United States, any state thereof or the District of Columbia) abovein which any successor Person to any of the Issuers or Guarantors is organized, resident or doing business for tax purposes or any jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on this or any other Note (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to tax.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. If the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay to the Holder of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of(a) All payments and deliveries made by, or interest or premium on, or in respect on behalf of, the Funding Note Company or any successor to the net proceeds received on Company under or with respect to this Indenture and the sale or exchange Notes, including, but not limited to, payments of principal (including, if applicable, the Repurchase Price, Tax Redemption Price and the Fundamental Change Repurchase Price), payments of interest and deliveries of ADSs (together with payment of cash in lieu of any fractional ADS) upon conversion of the Funding NoteNotes, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any made without withholding or deduction for for, or on account of of, any present or future taxes, duties, levies, assessments or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of within any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or resident or doing business (a “Taxing Jurisdiction”) or through which payment is made or deemed made (or any political subdivision or taxing authority thereof or therein) (together with each Taxing Jurisdiction, each, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental authority in the United States policy having the power force of law. The Trustee shall be entitled to taxmake any withholding or deduction pursuant to an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations or agreements thereunder or official interpretations thereof. The Company will provide the Trustee with sufficient information so as to enable the Trustee to determine whether or not it is obliged to make such a withholding or deduction. In the event that any such withholding or deduction is so required, so the Company or any successor to the Company shall pay to each beneficial owner such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder of the Funding Note, beneficial owner after giving effect to such withholding or deduction, whether or not currently payable, will deduction (and after deducting any taxes on the Additional Amounts) shall equal the amount amounts that would have been received under the Funding Note were by such beneficial owner had no such withholding or deduction or withholding been required; provided that that no such Additional Amounts shall be required payable:
(i) for or on account of:
(aA) any tax, duty, levy, assessment or other governmental charge imposed which that would not have been imposed but for a for:
(1) the existence of any present or former connection between the Holder or beneficial owner of such Note and the Funding NoteRelevant Taxing Jurisdiction, (i) having any present other than merely holding such Note or former connection with the United Statesreceipt of payments thereunder, including, without limitation, such Holder or beneficial owner being or having been a citizen national, domiciliary or resident thereof, of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been present, having been incorporated in, having physically present or engaged in a trade or business therein or having (or having had) had a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b2) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding such Note (where in cases in which presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or later of the date on which the payment is of the principal of (including the Repurchase Price, Tax Redemption Price and Fundamental Change Repurchase Price, if applicable) and interest on, such Note or the delivery of ADSs (together with payment of cash in lieu of any fractional ADS) upon conversion of such Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever occurs later;; or
(c3) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the Holder or beneficial owner or a Holder of the Funding Note to comply with a 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, identification information, documents or information reporting requirements other evidence concerning the such H▇▇▇▇▇’s or beneficial owner’s nationality, residence, identity or connection with the United States of the beneficial owner Relevant Taxing Jurisdiction, or a Holder of the Funding Noteto 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, by regulation or administrative practice of the United States Treasury Department, judicial Relevant Taxing Jurisdiction in order to reduce or administrative interpretation, other law eliminate any withholding or by an applicable income tax treaty deduction as to which the United States is a party as a condition Additional Amounts would have otherwise been payable to exemption from such Holder or beneficial owner;
(B) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(eC) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in under or with respect of to the Funding NoteNotes;
(fD) any tax, dutyassessment, levywithholding or deduction required by FATCA, assessment any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(E) any combination of taxes, duties, assessments or other governmental charge imposed by reason of payments on charges referred to in the Funding Note being treated as contingent interest described in Section 871(h)(4preceding clauses (A), (B), (C) or (D); or
(ii) with respect to any payment of the Code for United States Federal income tax purposes provided principal of (including the Repurchase Price, Tax Redemption Price and Fundamental Change Repurchase Price, if applicable) and interest on such Note or the delivery of ADSs (together with payment of cash in lieu of any fractional ADS) upon conversion of such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such treatment was described payment would be required to be included in the Pricing Supplement;
(g) any taxincome under the laws of the Relevant Taxing Jurisdiction, dutyfor tax purposes, levyof a beneficiary or settlor with respect to the fiduciary, assessment a partner or other governmental charge member of that partnership or a beneficial owner who would not have been imposed but for an election by entitled to such Additional Amounts had that beneficiary, settlor, partner, member or beneficial owner been the Holder thereof.
(b) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payment of cash in lieu of any fractional ADS) upon conversion of the Funding Notes or the payment of principal of (including the Repurchase Price and Fundamental Change Repurchase Price, if applicable) and interest on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the effect of which is context requires otherwise, that may be payable with respect to make payment that amount under the obligations referred to in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; orthis Section 4.07.
(hc) any combination The foregoing obligations shall survive termination or discharge of items (a), (b), (c), (d), (e), (f) or (g) abovethis Indenture.
Appears in 1 contract
Sources: Indenture (YY Inc.)
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder of Notes or that the Funding Note Additional Amounts as provided in Guarantors make under or with respect to the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guarantees shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments on the Funding Note by or on behalf of any jurisdiction (other than the United States, any state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, resident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the Paying Agent) makes any payment on this Note or by or within any department, political subdivision or governmental authority of or in any of the United States foregoing having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless such Issuer or Guarantor or other applicable withholding agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If an Issuer, Guarantor or other applicable withholding agent is required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to this Note or any Guarantee, such Issuer or Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder each beneficial owner of the Funding NoteNotes, after giving effect to such withholding or deduction, whether deduction (including any withholding or deduction in respect of any Additional Amounts) will not currently payable, will equal be less than the amount that the beneficial owner would have received if such Taxes had not been received under withheld or deducted.
(b) None of the Funding Note were no such deduction Issuers or withholding required; provided that no such Guarantors will, however, pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes, duty, levy, assessment to the extent such Taxes are imposed or other governmental charge imposed which would not have been imposed but for levied by a Holder Relevant Taxing Jurisdiction by reason of the Holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with such Relevant Taxing Jurisdiction (other than the United Statesmere receipt, includingownership, without limitation, being holding or having been a citizen or resident thereofdisposition of this Note, or having been presentby reason of the receipt of any payments in respect of any Notes or any Guarantee, having been incorporated in, having engaged in a trade or business the exercise or having (enforcement of rights under any Notes or having had) a permanent establishment or principal office therein, any Guarantee);
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any Taxes to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which extent such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is Taxes are imposed or withheld solely by reason of the failure of the Holder or beneficial owner of this Note, following the Issuers’ written request addressed to the Holder or a Holder of the Funding Note beneficial owner, to comply with any certification, identification identification, information or information other reporting requirements concerning (to the nationality, residence, identity extent such holder or connection with the United States of the beneficial owner or a Holder of the Funding Noteis legally eligible to do so), if compliance is whether required by statute, by treaty, regulation of the United States Treasury Department, judicial or administrative interpretationpractice of a Relevant Taxing Jurisdiction, other law or by an applicable income tax treaty to which the United States is a party as a condition precondition to exemption from from, or reduction in the rate of deduction or withholding of, such taxTaxes imposed by the Relevant Taxing Jurisdiction (including, dutywithout limitation, levy, assessment a certification that the Holder or other governmental chargebeneficial owner is not resident in the Relevant Taxing Jurisdiction);
(diii) any estate, inheritance, gift, estatesales, transfer, personal property, sales, transfer property or similar tax, duty, levy, assessment, or similar governmental chargeTaxes;
(eiv) any tax, duty, levy, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding from payments in made under or with respect of the Funding Noteto this Note or any Guarantee;
(fv) any tax, duty, levy, assessment Tax imposed on or other governmental charge imposed with respect to any payment by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) any of the Code for United States Federal income tax purposes provided Issuers or Guarantors 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 such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but on such payment had such beneficial owner been the holder of such Note;
(vi) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for an election by payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had this Note been presented on the last day of such 30-day period);
(viii) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the Funding NoteECOFIN Council meetings of November 26 and 27, 2000 on the effect taxation of which savings income or any law implementing or complying with, or introduced in order to conform to, any such Directive;
(ix) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986 as of the Issue Date (or any amended or successor version that is substantively comparable and not materially more onerous to make payment comply with), any current or future regulations promulgated thereunder or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 1471(b)(1) of the Internal Revenue Code of 1986 as of the Issue Date (or any amended or successor version described above), and including (for the avoidance of doubt) any intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionsforegoing; or
(hx) any combination of items the foregoing.
(ac) The Issuers and the Guarantors, if the applicable withholding agent, shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to this Note or any Guarantee is due and payable, if the Issuers or any Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to this Note or any Guarantee is due and payable, in which case it will be promptly thereafter), the Issuers shall deliver to the Trustee, with a copy to the Paying Agent, an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 of the Indenture stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (bi) the execution, issue, delivery or registration of this Note or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, this Note or any Guarantee. Upon written request, any of the Issuers or a Guarantor will furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or such Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02 of the Indenture, in such form as provided in the normal course by the taxing authority imposing such Taxes. If, notwithstanding the efforts of such Issuer or Guarantor to obtain such receipts, the same are not obtainable, such Issuer or such Guarantor will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee such information as may be reasonably available to such Issuers and the Guarantors (and not otherwise in the possession of the Trustee) to enable the determination of the amount of any withholding taxes attributable to any particular Holder(s).
(e) Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to this or any other Note (including payments thereof made pursuant to a Guarantee), (c)such reference includes the payment of Additional Amounts, (d), (e), if applicable.
(f) This paragraph 2 will survive any termination, defeasance or discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction (gother than the United States, any state thereof or the District of Columbia) abovein which any successor Person to any of the Issuers or Guarantors is organized, resident or doing business for tax purposes or any jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on this or any other Note (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to tax.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. All payments made under or with respect to the Notes under the Indenture or pursuant to any Note Guarantee must be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) imposed or levied by or on behalf of (1) the United States, Germany, Luxembourg, the United Kingdom or any political subdivision or governmental authority thereof or therein having the power to tax, (2) any jurisdiction from or through which payment on the Notes or any Note Guarantee is made, 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 organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each a “Relevant Taxing Jurisdiction”), collectively, “Taxes,” unless the Issuer or any Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency provided, however, that in determining what withholding is required by law for U.S. federal income and withholding tax purposes, the Issuer and any Guarantor shall be entitled to treat any payments on or in respect of the Notes or any Note Guarantee as if the Notes or any Note Guarantee were issued by a U.S. person as defined in section 7701(a)(30) of the Code. If the Funding Issuer or any Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to the Notes or any Note Certificate provide Guarantee, the Issuer or such Guarantor, as the case may be, will be required to pay such amount — “Additional Amounts” — as may be necessary so that the net amount (including Additional Amounts) received by each Holder after such withholding or deduction (including B-4 any withholding or deduction on such Additional Amounts) will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, however, that no Additional Amounts will be payable with respect to payments made to any Holder or beneficial owner to the extent such Taxes are imposed by reason of (i) such Holder or beneficial owner being considered to be or to have been connected with a Relevant Taxing Jurisdiction, otherwise than by the acquisition, ownership, holding or disposition of the Notes, the enforcement of rights under the Notes or under any Note Guarantee or the receipt of payments in respect of the Notes or any Note Guarantee, or (ii) such Holder or beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Issuer or the Guarantors to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the 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 for purposes of this obligation to pay Additional Amounts, Global Funding agrees the Issuer and any Guarantor shall be entitled, for U.S. federal income and withholding tax purposes, to pay 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 shall be payable with respect to (i) any Tax imposed by the United States or any political subdivision or governmental authority thereof or therein on interest by reason of any Holder or beneficial owner holding or owning, 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 by the United States or any political subdivision or governmental authority thereof or therein on interest by reason of any Holder or beneficial owner being a controlled foreign corporation that is a related person within the meaning of Section 864(d)(4) of the Code with respect to the Holder Issuer or any Guarantor. The Issuer or Guarantor (as applicable) will also make such withholding or deduction and remit the full amount deducted or withheld to the relevant authority as and when required in accordance with applicable law. The Issuer or Guarantor (as applicable) will use all reasonable efforts to obtain certified copies of tax receipts evidencing the Funding Note Additional Amounts payment by the Issuer or Guarantor (as provided applicable) of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee. Wherever in the Funding Indenture or the Notes or any Note Certificate. Whenever in the Funding Note Indenture Guarantee there is are mentioned, in any context, (1) the payment of principal, (2) purchase prices in connection with a purchase of Notes under the principal ofIndenture or the Notes, or (3) interest or premium on, (4) any other amount payable on or in with respect of, the Funding Note or the net proceeds received on the sale or exchange to any of the Funding NoteNotes or any Note Guarantee, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture as described under this heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such termsthereof. The Issuer will pay any present stamp, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will paycourt or documentary taxes, or cause to be paidany other excise, Additional Amounts to a Holder of the Funding Note to compensate for any withholding property or deduction for or on account of any present or future similar taxes, dutiescharges or levies (including any penalties, levies, assessments interest or governmental charges of whatever nature imposed or levied on payments on the Funding Note by or on behalf of any governmental authority other liabilities related thereto) which arise in the United States having or any political subdivision thereof or therein, from the power to taxexecution, so that the net amount received by the Holder delivery and registration of Notes upon original issuance and initial resale of the Funding NoteNotes or any other document or instrument referred to therein, after giving effect to such withholding or deduction, whether or not currently payable, will equal in connection with the amount that would have been received under the Funding Note were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner enforcement of the Funding Note, (i) having Notes or any present Note Guarantee or former connection with 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, includingthe Issuer or new issuer, without limitationas applicable, being will pay any stamp, court or having been a citizen or resident thereofdocumentary taxes, or having been presentany other excise, having been incorporated inB-5 property or similar taxes, having engaged charges or levies (including any penalties, interest or other liabilities related thereto) which arise in a trade the jurisdiction in which the Issuer or business or having new issuer is organized (or having hadany political subdivision thereof or therein) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within and are payable by the meaning of Section 957(a) Holders of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments Notes in respect of the Funding Note;
(f) Notes or any taxother document or instrument referred to therein under any law, dutyrule or regulation in effect at the time of such change. The foregoing obligations will survive any termination, levy, assessment defeasance or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) discharge of the Code for United States Federal income tax purposes provided that such treatment was described Indenture. References in this section (“Additional Amounts”) to the Pricing Supplement;
(gIssuer or any Guarantor shall apply to any successor(s) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovethereto.
Appears in 1 contract
Additional Amounts. If (a) All payments that the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees to pay Issuers make under or with respect to the Holder of Notes or that the Funding Note Additional Amounts as provided in Guarantors make under or with respect to the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference Guarantees shall be deemed to include reference to the payment made free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges charge (including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “Taxes”) imposed or levied on such payments on the Funding Note by or on behalf of any jurisdiction (other than the United States, any state thereof or the District of Columbia) in which any Issuer or Guarantor is organized, resident or doing business for tax purposes or from or through which any of the foregoing (or its agents, including the Paying Agent) makes any payment on this Note or by or within any department, political subdivision or governmental authority of or in any of the United States foregoing having the power to taxtax (each, so a “Relevant Taxing Jurisdiction”), unless such Issuer or Guarantor or other applicable withholding agent, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If either Issuer, a Guarantor or other applicable withholding agent is required to withhold or deduct any amount for or on account of Taxes imposed or levied on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to this Note or any Guarantee, such Issuer or Guarantor, as the case may be, shall pay additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the Holder each beneficial owner of the Funding NoteNotes, after giving effect to such withholding or deduction, whether deduction (including any withholding or deduction in respect of any Additional Amounts) will not currently payable, will equal be less than the amount that the beneficial owner would have received if such Taxes had not been received under withheld or deducted.
(b) None of the Funding Note were no such deduction Issuers or withholding required; provided that no such Guarantors will, however, pay Additional Amounts shall be required for in respect or on account of:
(ai) any taxTaxes, duty, levy, assessment to the extent such Taxes are imposed or other governmental charge imposed which would not have been imposed but for levied by a Holder Relevant Taxing Jurisdiction by reason of the Holder’s or beneficial owner of the Funding Note, (i) having any owner’s present or former connection with such Relevant Taxing Jurisdiction (other than the United Statesmere receipt, includingownership, without limitation, being holding or having been a citizen or resident thereofdisposition of this Note, or having been presentby reason of the receipt of any payments in respect of any Notes or any Guarantee, having been incorporated in, having engaged in a trade or business the exercise or having (enforcement of rights under any Notes or having had) a permanent establishment or principal office therein, any Guarantee);
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, any Taxes to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment or other governmental charge which would not have been imposed but for the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after the date on which extent such payment becomes due and payable or the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or other governmental charge which is Taxes are imposed or withheld solely by reason of the failure of the Holder or beneficial owner of this Note, following the Issuers’ written request addressed to the Holder or a Holder of the Funding Note beneficial owner, to comply with any certification, identification identification, information or information other reporting requirements concerning (to the nationality, residence, identity extent such holder or connection with the United States of the beneficial owner or a Holder of the Funding Noteis legally eligible to do so), if compliance is whether required by statute, by treaty, regulation of the United States Treasury Department, judicial or administrative interpretationpractice of a Relevant Taxing Jurisdiction, other law or by an applicable income tax treaty to which the United States is a party as a condition precondition to exemption from from, or reduction in the rate of deduction or withholding of, such taxTaxes imposed by the Relevant Taxing Jurisdiction (including, dutywithout limitation, levy, assessment a certification that the Holder or other governmental chargebeneficial owner is not resident in the Relevant Taxing Jurisdiction);
(diii) any estate, inheritance, gift, estatesales, transfer, personal property, sales, transfer property or similar tax, duty, levy, assessment, or similar governmental chargeTaxes;
(eiv) any tax, duty, levy, assessment or other governmental charge that Tax which is payable otherwise than by deduction or withholding from payments in made under or with respect of the Funding Noteto this Note or any Guarantee;
(fv) any tax, duty, levy, assessment Tax imposed on or other governmental charge imposed with respect to any payment by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) any of the Code for United States Federal income tax purposes provided Issuers or Guarantors 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 such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that Taxes would not have been imposed but on such payment had such beneficial owner been the holder of such Note;
(vi) any Tax that is imposed on or with respect to a payment made to a Holder or beneficial owner who would have been able to avoid such withholding or deduction by presenting the relevant Notes to another paying agent in a member state of the European Union or the United Kingdom;
(vii) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for an election by payment (where presentation is required) more than 30 days after the relevant payment is first made available to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had this Note been presented on the last day of such 30-day period);
(viii) any U.S. federal withholding Taxes or equivalent thereof imposed pursuant to Sections 1471 through 1474 of the Funding NoteInternal Revenue Code of 1986 as of the Issue Date (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 or other official administrative interpretations thereof and any agreements entered into pursuant to current Section 1471(b)(1) of the effect Internal Revenue Code of which is to make payment 1986 as of the Issue Date (or any amended or successor version described above), and including (for the avoidance of doubt) any intergovernmental agreements (and any law, regulation, rule or practice implementing any such intergovernmental agreement) in respect of the Funding Note subject to United States Federal income tax or withholding tax provisionsforegoing; or
(hix) any combination of items the foregoing.
(ac) The Issuers and the Guarantors, if the applicable withholding agents, shall (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
(d) At least 30 calendar days prior to each date on which any payment under or with respect to this Note or any Guarantee is due and payable, if the Issuers or any Guarantor shall be obligated to pay Additional Amounts with respect to such payment (unless such obligation to pay Additional Amounts arises after the 30th day prior to the date on which payment under or with respect to this Note or any Guarantee is due and payable, in which case it will be promptly thereafter), the Issuers shall deliver to the Trustee, with a copy to the Paying Agent, an Officer’s Certificate stating that such Additional Amounts will be payable and the amounts so payable and setting forth such other information as is necessary to enable the Paying Agent to pay such Additional Amounts to the Holders on the payment date. The Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Issuers shall promptly publish a notice in accordance with Section 12.02 of the Indenture stating that such Additional Amounts will be payable and describing the obligation to pay such amounts. In addition, the Issuers or any Guarantor, as the case may be, shall pay any present or future stamp, issuance, registration, court, documentary, excise or property taxes or other similar taxes, charges and duties, including without limitation, interest, penalties and other similar liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction in respect of (bi) the execution, issue, delivery or registration of this Note or any Guarantee or any other document or instrument referred to thereunder, or (ii) the receipt of any payments under or with respect to, or enforcement of, this Note or any Guarantee. Upon written request, any of the Issuers or a Guarantor will furnish to the Trustee or a Holder within a reasonable time certified copies of tax receipts evidencing any payment by such Issuer or such Guarantor (as the case may be) of any Taxes imposed or levied by a Relevant Taxing Jurisdiction, in accordance with the procedures described in Section 12.02 of the Indenture, in such form as provided in the normal course by the taxing authority imposing such Taxes. If, notwithstanding the efforts of such Issuer or Guarantor to obtain such receipts, the same are not obtainable, such Issuer or such Guarantor will provide the Trustee or such Holder with other evidence reasonably satisfactory to the Trustee or holder of such payments by such Issuer or Guarantor. If requested by the Trustee, the Issuers and (to the extent necessary) any Guarantors will provide to the Trustee such information as may be reasonably available to such Issuers and the Guarantors (and not otherwise in the possession of the Trustee) to enable the determination of the amount of any withholding taxes attributable to any particular Holder(s).
(e) Whenever the Indenture or this Note refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to this or any other Note (including payments thereof made pursuant to a Guarantee), (c)such reference includes the payment of Additional Amounts, (d), (e), if applicable.
(f) This paragraph 2 will survive any termination, defeasance or discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction (gother than the United States, any state thereof or the District of Columbia) abovein which any successor Person to any of the Issuers or Guarantors is organized, resident or doing business for tax purposes or any jurisdiction from or through which any such person (or its agents, including the Paying Agent) makes any payment on this or any other Note (or any Guarantee) and any department, political subdivision or governmental authority of or in any of the foregoing having the power to tax.
Appears in 1 contract
Sources: Indenture (Ardagh Group S.A.)
Additional Amounts. If the Funding Note Certificate provide for the payment of Additional AmountsThe Issuer, Global Funding agrees to pay which shall include any Successor Company (as such term is defined in Section 5.01(a)(i)), shall make all its payments under or with respect to the Holder of the Funding Securities and each Note Additional Amounts Guarantor, which shall include any Successor Guarantor (as provided such term is defined in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentionedSection 5.01(b)(i)), in any context, the payment of the principal of, shall make all payments under or interest or premium on, or in with respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment Note Guarantees free and clear of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (hereinafter "Taxes") imposed or levied on payments on the Funding Note by or on behalf of the government of the Cayman Islands or any governmental political subdivision or any authority in the United States or agency therein or thereof having the power to tax, or within any other jurisdiction in which it is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment is made (each a "Relevant Taxing Jurisdiction"), unless the Issuer or any Note Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If the Issuer or any Note Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Securities or the Note Guarantees, the Issuer or the applicable Note Guarantor shall pay such additional amounts ("Additional Amounts") as may be necessary so that the net amount received by the each Holder of the Funding Note, (including Additional Amounts) after giving effect to such withholding or deduction, whether or deduction shall not currently payable, will equal be less than the amount that such Holder would have received if such Taxes had not been received under withheld or deducted; provided, however, that the Funding Note were no such deduction or withholding required; provided that no such foregoing obligation to pay Additional Amounts shall be required for or on account of:
not apply to (a1) any tax, duty, levy, assessment or other governmental charge imposed which Taxes that would not have been so imposed but for a Holder or beneficial owner the existence of the Funding Note, (i) having any present or former connection with between the United Statesrelevant Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the relevant Holder, if the relevant Holder is an estate, nominee, trust or corporation) and the Relevant Taxing Jurisdiction (other than the mere receipt of such payment or the ownership or holding outside of the Cayman Islands of such Securities but including, without limitation, such relevant Holder (or such fiduciary, settlor, beneficiary, member or shareholder or possessor) being or having been a citizen or resident thereof, thereof or being or having been present, having been incorporated in, having present or engaged in a trade or business therein or having (or having had) had a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Code, to the Funding Agreement Provider, (iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder ); or (v2) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge; (b3) any tax, duty, levy, assessment or other governmental charge which would not have been that is imposed but for or withheld by reason of the presentation of any Funding Note (where presentation is required) for payment on a date more than 30 days after failure by the date on which such payment becomes due and payable Holder or the date on which payment is duly provided forbeneficial owner of the Securities to comply with a request of the Issuer or any Note Guarantor, whichever occurs later;
as the case may be, addressed to the Holder (cx) to provide information, documents or other evidence concerning the nationality, residence or identity of the Holder or such beneficial owner or (y) to make and deliver any declaration or other similar claim (other than a claim for refund of a tax, duty, levy, assessment or other governmental charge which withheld by the Issuer) or satisfy any information or reporting requirements, which, in the case of (x) or (y), is required or imposed by a statute, treaty, regulation or withheld solely by reason administrative practice of the failure of the beneficial owner or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party taxing jurisdiction as a condition precondition to exemption from all or part of such tax, duty, levy, assessment or other governmental charge;
charge or (d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e4) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect payment of principal of, premium, if any, or interest on such Securities; nor shall the Issuer or any Note Guarantor, as applicable, be required to pay Additional Amounts (a) if the payment could have been made without such deduction or withholding if the beneficiary of the Funding Note;
payment had presented the Securities for payment within 30 days after the date on which such payment or such Securities became due and payable or the date on which payment thereof is duly provided for, whichever is later (f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments except to the extent that the holder would have been entitled to Additional Amounts had the Securities been presented on the Funding Note being last day of such 30-day period), (b) if, at the election of the relevant Holder, the payment of principal of (or premium, if any, on) or interest on such Securities could have been made through another paying agent without such deduction or withholding, or (c) with respect to any payment of principal of (or premium, if any, on) or interest on such Securities to any Holder who is a fiduciary, partnership or limited liability company that is treated as contingent interest described in Section 871(h)(4) of the Code a partnership for United States Federal U.S. federal income tax purposes provided or any person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such treatment was described in fiduciary, a member of such partnership or limited liability company that is treated as a partnership for U.S. federal income tax purposes or the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that beneficial owner of such payment would not have been imposed but for an election by entitled to the Holder Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual holder of the Funding Note, the effect of which is to make payment in respect of the Funding Note subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) abovesuch Securities.
Appears in 1 contract
Sources: Indenture (Seagate Technology Malaysia Holding Co Cayman Islands)
Additional Amounts. If the Funding Note Certificate provide for the payment of Additional Amounts, Global Funding agrees (a) The Company and any Subsidiary Guarantor are required to pay make all payments under this Indenture or with respect to the Holder Notes issued hereunder free and clear of the Funding Note Additional Amounts as provided in the Funding Note Certificate. Whenever in the Funding Note Indenture there is mentioned, in any context, the payment of the principal of, or interest or premium on, or in respect of, the Funding Note or the net proceeds received on the sale or exchange of the Funding Note, such reference shall be deemed to include reference to the payment of Additional Amounts provided by the terms established by the Funding Note Indenture or pursuant to the Funding Note Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Funding Note Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. If the Funding Note Certificate provides for the payment of Additional Amounts, the Funding Note Certificate will provide that Global Funding will pay, or cause to be paid, Additional Amounts to a Holder of the Funding Note to compensate for any without withholding or deduction for or on account of any present or future taxestax, dutiesduty, levieslevy, assessments impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed or levied on payments on the Funding Note by or on behalf of the government of the country in which the Company or Subsidiary Guarantor and any governmental successor thereof is organized or incorporated or any political subdivision or any authority in the United States or agency therein or thereof having the power to tax, or any other jurisdiction in which the Company or any Subsidiary Guarantor is otherwise resident for tax purposes or the jurisdiction of any Paying Agent (each, a “Relevant Taxing Jurisdiction”), unless the Company or a Subsidiary Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Company, or any Subsidiary Guarantor, or a Paying Agent is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, the Company or any Subsidiary Guarantor will be required to pay such additional amounts (“Additional Amounts”) with respect to the Notes as may be necessary so that the net amount received by the any Holder of the Funding Note, or beneficial owner (including Additional Amounts) after giving effect to such withholding or deduction, whether or deduction will not currently payable, will equal be less than the amount that such Holder or beneficial owner would have received if such Taxes had not been received under withheld or deducted; provided, however, that the Funding Note were no such deduction or withholding required; provided that no such foregoing obligation to pay Additional Amounts shall be required for or on account ofdoes not apply to:
(ai) any tax, duty, levy, assessment or other governmental charge imposed which Taxes that would not have been so imposed but for a Holder or beneficial owner the existence of the Funding Note, (i) having any present or former connection with between the United Statesrelevant Holder or beneficial owner and the Relevant Taxing Jurisdiction (including a connection between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the relevant holder or beneficial owner, if the relevant holder or beneficial owner is an estate, nominee, trust, partnership or corporation, and the Relevant Taxing Jurisdiction) including, without limitationlimiting the generality of the foregoing, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, partner, member, shareholder, or possessor) of the Notes being or having been a citizen citizen, resident, or resident thereof, national thereof or being or having been present, having been incorporated in, having present or engaged in a trade or business therein or having (or having had) had a permanent establishment or principal office therein, ;
(ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related within the meaning of Section 864(d)(4) of the Codeany estate, to the Funding Agreement Providerinheritance, gift, sales, transfer or personal property tax or similar Taxes;
(iii) being a bank for United States Federal income tax purposes whose receipt of interest on the Funding Note is described any withholding or deduction in Section 881(c)(3)(A) respect of the CodeNotes (a) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC (as amended from time to time) or any law implementing or complying with, (iv) being an actual or constructive owner of 10 percent introduced in order to conform to, such Directive, or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Funding Note;
(b) any tax, duty, levy, assessment presented for payment by or other governmental charge which on behalf of a Holder or beneficial owner who would not have been imposed but for able to avoid such withholding or deduction by presenting the presentation relevant note to any other paying agent, or (c) where the payment could have been made without such deduction or withholding if the beneficiary of any Funding Note (where presentation is required) the payment had presented the notes for payment on a date more than within 30 days after the date on which such payment becomes on the notes became due and payable or the date on which payment thereof is duly provided for, whichever occurs lateris later (except to the extent that the holder or beneficial owner would have been entitled to Additional Amounts had the notes been presented on the last day of such 30-day period);
(civ) any taxTaxes imposed with respect to any payment of principal of (or premium, dutyif any, levyon) or interest on the Notes by the Company or any Subsidiary Guarantor to any Holder or beneficial owner who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment, assessment to the extent that a beneficiary or other governmental charge which is imposed settlor with respect to such fiduciary, a member of such a partnership or withheld solely by reason of the failure of the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or a Holder of the Funding Note to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner been the actual Holder or a Holder beneficial owner of the Funding Note, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental chargeNotes;
(dv) any inheritance, gift, estate, personal property, sales, transfer Taxes that are payable other than by deduction or similar tax, duty, levy, assessment, withholding from payments made under or similar governmental chargewith respect to the Notes;
(evi) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Funding Note;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Funding Note being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge Taxes that would not have been imposed but for an election the failure of the Holder and/or beneficial owner (a) to comply with the Company’s or the paying agent’s request in writing at least 30 days before any withholding for such Taxes to the Holder to provide certification, documentation, information or other evidence concerning the nationality, residence, entitlement to treaty benefits, identity or connection with the Relevant Taxing Jurisdiction of the Holder and/or beneficial owner of such Notes, or (b) to make any valid or timely declaration or similar claim or satisfy any other reporting requirement or to provide any information relating to such matters, whether required or imposed by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of withholding or deduction of, Taxes imposed by the Holder of the Funding Note, the effect of which is Relevant Taxing Jurisdiction;
(vii) any Taxes that are required to make be deducted or withheld from any payment under or in respect of the Funding Note subject Notes as a consequence of the Holder or beneficial owner of Notes or the recipient of the interest payable on the Notes not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with the Company or any Subsidiary Guarantor at the time of making any such payment;
(viii) any Taxes that are required to be deducted or withheld from any payment under or in respect of the Notes as a consequence of the Holder or beneficial owner of the Notes being at any time a ‘‘specified non-resident shareholder’’ (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Company or at any time not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with a “specified shareholder” (within the meaning of subsection 18(5) of the Income Tax Act (Canada)) of the Company or as a consequence of the payment being deemed to be a dividend under the Income Tax Act (Canada);
(ix) any taxes payable under section 1471 through 1474 of the Code (or any successor or amended versions thereof), any regulations or other official guidance thereunder, or any agreement (including any intergovernmental agreement or any law implementing such governmental agreement) entered into in connection therewith (“FATCA”);
(x) any Taxes or penalties arising from the Holder’s or beneficial owner’s failure to comply with the Holder’s or beneficial owner’s obligations imposed under Part XVIII of the Income Tax Act (Canada), the Canada-United States Federal income tax Enhanced Tax Information Exchange Agreement Implementation Act (Canada) or withholding tax provisionsthe similar provisions of legislation of any other jurisdiction that has entered into an agreement with the United States of America to provide for the implementation of FATCA based reporting; or
(hxi) any combination of, or any Taxes arising from a combination of items the factors described in, (ai) to (x) above.
(c) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes is due and payable (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Company will be obligated to pay Additional Amounts with respect to such payment, the Company will deliver to the U.S. Trustee and paying agent for the affected Notes an Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the U.S. Trustee or paying agent, as the case may be, to pay such Additional Amounts to Holders and beneficial owners of such Notes on the payment date. Each such Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters.
(b)d) The Company will also (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Company will provide the U.S. Trustee with official receipts or, if notwithstanding the efforts of the Company official receipts are not obtainable, other documentation reasonably satisfactory to the U.S. Trustee, evidencing the payment of any Tax so deducted or withheld for each Relevant Taxing Jurisdiction imposing such Taxes. The Company will attach to each official receipt or other documentation a certificate stating (x) that the amount of such Tax evidenced by the official receipt or other documentation was paid in connection with payments in respect of the principal amount of such Notes then outstanding and (y) the amount of such Tax paid per $1,000 of principal amount of such Notes.
(e) Whenever reference is made in this Indenture, in any context, to (i) the payment of principal, (c)ii) redemption prices or purchase prices in connection with a redemption or purchase of Notes, (d)iii) interest or (iv) any other amount payable on or with respect to the Notes, (e)such reference will be deemed to include payment of Additional Amounts as described under this heading to the extent that, in such context, Additional Amounts are or would be payable in respect thereof.
(f) The Company will pay any present or future stamp, court, documentary or other similar taxes, charges or levies that arise in any jurisdiction from the execution, delivery or registration of, or enforcement of rights under, this Indenture or any related document.
(g) aboveThe obligations described under this Section 2.13 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to the Company is organized or any political subdivision or taxing authority or agency thereof or therein.
(h) The Company and the Subsidiary Guarantors shall indemnify and hold harmless the Trustees for the amount of any Taxes in respect of which the Company, or any Subsidiary Guarantor, is required to pay Additional Amounts pursuant to Section 2.13(b) that are levied or imposed and paid by the Trustees as a result of payments made under or with respect to the Notes or any Subsidiary Guarantee, including any reimbursements under this clause 2.13(h).
Appears in 1 contract
Sources: Indenture (Open Text Corp)