Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or with respect to the Notes or any guarantee of the Notes will be made without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of: (1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or (2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of: (1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof; (2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes); (3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes; (4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes; (5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent; (6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or (7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 2 contracts
Sources: Indenture (Broadcom Inc.), Indenture (Broadcom Inc.)
Additional Amounts. After All payments of, or in respect of, principal of and interest on the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or with respect to the Notes or any guarantee of the Notes will Securities shall be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation charges of administration of law. If any deduction or withholding for, or on account of, any Taxes kind whatsoever imposed or levied by or on behalf of:
(1) any jurisdiction (other than of the United States Kingdom or any political subdivision or governmental any Taxing authority thereof or therein having power to tax) from or through which payment on ("U.K. Withholding Taxes"), unless such U.K. Withholding Taxes are required by the Notes United Kingdom or any guarantee such subdivision or authority to be withheld or deducted. In the event of (i) a Change in Tax Law or (ii) a failure by the Company to list or maintain a listing of the Notes is made by or Securities on behalf a "recognized stock exchange" (within the meaning of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than Section 841 of the United States Kingdom Income and Corporation Taxes Act 1988) (a "Listing Failure"), the effect of which, in each case, is to require the withholding or deduction by the Company or the Guarantors pursuant to the Securities or the Guarantees, respectively, of any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor amount for U.K. Withholding Taxes that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered would not have been required to be a resident for tax purposeswithheld or deducted absent such event, the Company or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2)Guarantors, a “Relevant Taxing Jurisdiction”)as the case may be, will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order on the Securities that the net amounts received in respect of such payments by the Holder result (after such withholding or deduction (including any such deduction or withholding from of such U.K. Withholding Taxes, including any deduction or withholding of such U.K. Withholding Taxes with respect to such Additional Amounts), will not be less than ) in the payment to each Holder of a Security the amounts that would have been received payable in respect of such payments on the Notes or the guarantees of the Notes in the absence of Security had no such withholding or deduction; provideddeduction been required, however, except that no such Additional Amounts will shall be so payable for or on account of:
(1a) any Taxes tax, duty, assessment or other governmental charge that would not have been so imposed or levied but for (1) the existence of any present or former connection between a Holder or the relevant Holder beneficial owner of a Security (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of a power over, the relevant such Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company partnership or corporation) and the Relevant Taxing Jurisdiction United Kingdom or any political subdivision or taxing authority thereof or therein (including other than mere ownership of, or receipt of payment under, such Security) including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident resident, domiciliary or national of, or carrying on being or having been present or engaged in a trade or business therein or maintaining having or having had a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes United Kingdom or any guarantee political subdivision or any Taxing authority thereof or therein, (2) the presentation of a Security or a Guarantee for payment in the Notes United Kingdom or any political subdivision or any Taxing authority thereof or therein, unless such Security or Guarantee could not have been presented elsewhere, or (3) the enforcement presentation of a Security or receipt of any a Guarantee for payment on a date more than 30 days after the date on which such payment in respect thereof;
(2) any Taxes of such Security became due and payable or provided for, whichever occurs later, except to the extent that would not have been so imposed or levied if the Holder of the Note such Security or such Guarantee would have been entitled to such Additional Amounts if it had complied with a reasonable request in writing of the nonpresented such Security or such Guarantee for payment within such 30-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);day period.
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4b) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxestax, duty, assessment or governmental charge;
(5c) any Taxes tax, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of a Security to comply, or the delay in connection complying, with a Note presented for payment request in writing of the Company or a Guarantor (where presentation which request shall be furnished to the Trustee)
(1) to provide information concerning the nationality, residence, place of establishment or identity of the Holder or such beneficial owner or (2) to make any declaration or other similar claim or satisfy any information or reporting requirement which, in the case of (1) or (2), is required for payment) or imposed by a statute, treaty, regulation or on behalf administrative practice of the taxing jurisdiction as a Holder precondition to exemption from or beneficial owner who would have been able to avoid reduction of all or part of such Tax by presenting the relevant Note totax, duty, assessment or otherwise accepting payment from, another Paying Agentother governmental charge;
(6d) any Taxes payable under Sections 1471 through 1474 tax, duty, assessment or other governmental charge resulting from a Listing Failure with respect to any Security issued in the form of a certificated Security pursuant to the Code as terms of this Indenture;
(e) any tax, duty, assessment or other governmental charge which is imposed on a payment to any holder and is required to be made pursuant to any European Union Directive 2003/48 on the date taxation of savings income proposed to come into effect from July 1, 2005, at the Offering Memorandum (earliest, or any amended law complying with, or successor version that is substantively comparable and not materially more onerous introduced in order to comply with)conform to, any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements)Directive; or
(7f) any combination of the items (a), (b), (c), (d) and (e) above. Such ; nor shall Additional Amounts will also not be payable (x) if the paid with respect to any payment could have been made without such deduction or withholding if the beneficiary of the payment had presented principal of, or any interest on, any Security or Guarantee to any Holder who is a fiduciary or partnership other than the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice sole beneficial owner of such payment is given to the Holders)Security or Guarantee, except to the extent that such payment would be required by the Holder laws of the United Kingdom (or any political subdivision or relevant Taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or member of such partnership or a beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner who would not have been entitled to payment of such Additional Amounts by reason had it been the Holder of the Security. At least 30 days prior to each date on which any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make payment under or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld with respect to the relevant taxing authority of Securities is due and payable, if the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted Company or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor a Guarantor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor Company or the Guarantor will deliver to the Trustee an Officer’s 's Certificate stating the fact that such Additional Amounts will be payable and the amount amounts so payable and will set forth such other information necessary to enable the Paying Agent Trustee to pay such Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever Whenever in this Indenture, the Notes or any guarantee of the Notes Indenture there is mention ofmentioned, in any context:
(1) , the payment of principal;
(2) redemption prices , Redemption Price, interest or purchase prices in connection with a redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on under or with respect to any Security or the net proceeds received on the sale or exchange of the Notes or any guarantee of the Notes; Security, such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under provided for in this Section 2.13 Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, thereof pursuant to this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinIndenture.
Appears in 2 contracts
Sources: Indenture (Amvescap PLC/London/), Indenture (Amvescap PLC/London/)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments made by the Company, a non-U.S. Payor Successor Company or a Guarantor (a “Payor”) on or with respect to the Notes or any guarantee of the Notes Note Guarantees will be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) Taxes unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) (i) the United States of America, (ii) any jurisdiction (other than State of the United States or the District of Columbia, (iii) the Grand Duchy of Luxembourg, (iv) the United Kingdom or (v) with respect to each of the jurisdictions in (i)-(iv), any political subdivision or governmental authority Governmental Authority thereof or therein having power to tax;
(2) any jurisdiction from or through which payment on the Notes any such Note or any guarantee of the Notes Note Guarantee is made by the Company, Successor Company, Guarantor or on behalf of a non-U.S. Payortheir agents, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax; or
(23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. the Payor that actually makes a payment on the Notes is incorporated or its guarantee of the Notes is organized organized, engaged in business for tax purposes or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax (each of clauses (1), (2) and (23), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes any Note or any guarantee of the NotesNote Guarantee, including payments of principal, redemption price, interest or premium, if any, or interest, the non-U.S. Payor will shall pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that which would have been received in respect of such payments on the Notes any such Note or the guarantees of the Notes Note Guarantee in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, over the relevant Holder, if such the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including including, but not limited to, being a citizen or resident or national or domiciliary of, or carrying on the existence of a business, a permanent establishment, a dependent agent, a place of business or maintaining a permanent establishment in, place of management present or being physically deemed present in, in the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes Note or any guarantee enforcement of the Notes rights hereunder or under a Note Guarantee or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that are imposed or withheld on behalf of a Holder who would not have been so imposed able to avoid such withholding or levied if the Holder of the Note had complied deduction by complying with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any applicable certification, documentation, identification, information or other reporting requirement for exemption fromconcerning the nationality, residence, identity or reduction in connection with the rate of, withholding to which it is entitled (provided that Relevant Taxing Jurisdiction if such declaration of nonresidence or other claim, filing or requirement compliance is required by the applicable law, treaty, statute or regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to relief or exemption from, applicable withholding tax or reduction in the rate of deduction or withholding of, any such Taxes)duty;
(3) any Taxes that are payable otherwise than by deduction or withholding from a payment on or with respect to the Notes or any guarantee of the NotesNote Guarantee;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying AgentAgent in the United Kingdom or any member state of the European Union;
(6) any Taxes payable under imposed on or with respect to a payment to a Holder that is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment or Note, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note;
(7) any Taxes imposed pursuant to or in connection with Sections 1471 through 1474 of the Code Code, the United States Treasury Regulations thereunder or any similar law or regulations adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing;
(8) any Taxes required to be withheld by any Paying Agent from any payment of principal of, or interest on, any Note if such payment can be made without such withholding by any other Paying Agent outside the United States;
(9) any Taxes imposed by reason of such Holder’s past or present status, for U.S. federal income tax purposes, as a passive foreign investment company (including a qualified election fund), a controlled foreign corporation, a personal holding company, a private foundation or other tax exempt organization or as a corporation which accumulates earnings to avoid United States federal income tax;
(10) any Taxes imposed on interest received by a Holder or beneficial owner of a Note that is a 10% shareholder (as defined in Section 871(h)(3)(B) of the date Code and the regulations that may be promulgated thereunder) of the Offering Memorandum (Company, being a bank whose receipt of interest on a Note is described in Section 881(c)(3)(A) of the Code and regulations that may be promulgated thereunder or any amended or successor version being a controlled foreign corporation that is substantively comparable and not materially more onerous related to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreementsCompany as described in Section 881(c)(3)(C); or
(711) any combination of the above. .
(b) Such Additional Amounts will also not be payable (x) if to the extent the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is requiredrequired for payment) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders)Holder, except for Additional Amounts with respect to the extent Taxes that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting imposed had the Holder presented the Note for payment on any date during within such 30-30 day period or (y) where, had the beneficial owner of the Note been the Holder, except for Additional Amounts with respect to Taxes that would have been imposed had the Holder of presented the NoteNote for payment within such 30-day period, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (711) inclusive above. , but only if there is no material cost or legal restriction associated with transferring the Note to such beneficial owner.
(c) The non-U.S. Payors will Payor shall (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will shall 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes Taxes, in such form as provided in the ordinary course by the Relevant Taxing Jurisdiction and will as is reasonably available to the Payor, and shall provide such certified copies to the Trustee Trustee. Such copies shall be made available to the Holders upon request and shall be made available during normal business hours at the Holdersoffices of the Paying Agent. If, notwithstanding The Payor shall attach to each certified copy a certificate stating (x) that the efforts 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 non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. withholding Taxes paid per £1,000 principal amount of Notes.
(d) If any non-U.S. Payor will becomes aware that it shall be obligated to pay Additional Amounts under or with respect to any payment made on the Notesany Note or Note Guarantee, at least 30 days prior to the date of such payment, the non-U.S. Payor will shall deliver to the Trustee and the Paying Agent 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 (unless such obligation to pay Additional Amounts arises arises, or the Payor becomes aware of such obligation, less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall may deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date but in any event no less than 2 (two) Business Days prior to the payment date). The Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate without further inquiry, as conclusive proof that such payments are necessary. .
(e) Wherever in this Indenture, Indenture or the Notes or any guarantee of the Notes Note Guarantees there is mention ofare mentioned, in any context:
(1) the payment of principal;
(2) purchase or redemption prices or purchase prices in connection with a purchase or redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; , such reference shall be deemed to include payment of Additional Amounts as described under pursuant to this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(f) The non-U.S. Payors will Payor shall pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture Indenture, the Intercreditor Agreement, the other Security Documents or any other document or instrument in relation thereto (other than a transfer or exchange of the Notes). ) excluding any such Taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction.
(g) The foregoing obligations of this Section 2.13 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor the Company or any Guarantor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 2 contracts
Sources: Indenture (Encore Capital Group Inc), Indenture (Encore Capital Group Inc)
Additional Amounts. After If the occurrence Note Certificate(s) provide for the payment of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or with respect to the Notes or any guarantee of the Notes will be made without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if anyAdditional Amounts, the non-U.S. Payor will Trust agrees to pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if to the Holder of any such Note Additional Amounts as provided in the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction Certificate(s). Whenever in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes Indenture there is mention ofmentioned, in any context:
(1) , the payment of principal;
(2) redemption prices the principal of, or purchase prices interest or premium on, or in connection with a redemption respect of, any Note or purchase the net proceeds received on the sale or exchange of Notes;
(3) interest; or
(4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; Note, such reference shall be deemed to include reference to the payment of Additional Amounts as described under this Section 2.13 provided by the terms established by the Indenture or pursuant to the Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to such terms, and express reference to the payment of Additional Amounts in any provision of the Indenture shall not be construed as excluding Additional Amounts in those provisions hereof where such express reference is not made. The non-U.S. Payors If the Note Certificate(s) provide for the payment of Additional Amounts, the Note Certificate will pay provide that the Trust will pay, or cause to be paid, Additional Amounts to a Holder of Notes to compensate for any withholding or deduction for or on account of any present or future stamptaxes, court duties, levies, assessments or documentary Taxes, governmental charges of whatever nature imposed or any other excise, property levied on payments on the Notes by or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement on behalf of any Notesgovernmental authority in the United States having the power to tax, this Indenture or any other document or instrument in relation thereto (other than a transfer so that the net amount received by the Holder of the Notes). The foregoing obligations , after giving effect to such withholding or deduction, whether or not currently payable, will survive equal the amount that would have been received under the Notes were no such deduction or withholding required; provided that no such Additional Amounts shall be required for or on account of:
(a) any terminationtax, defeasance duty, levy, assessment or discharge other governmental charge imposed which would not have been imposed but for a Holder or beneficial owner of this Indenture and will apply mutatis mutandis one or more of the Notes, (i) having any present or former connection with the United States, including, without limitation, being or having been a citizen or resident thereof, or having been present, having been incorporated in, having engaged in a trade or business or having (or having had) a permanent establishment or principal office therein, (ii) being a controlled foreign corporation within the meaning of Section 957(a) of the Code related (within the meaning of Section 864(d)(4) of the Code) to any jurisdiction in which any successor to the Funding Agreement Provider, (iii) being a non-U.S. Payor is organized or otherwise considered to be a resident bank for United States Federal income tax purposes whose receipt of interest on the Notes is described in Section 881(c)(3)(A) of the Code, (iv) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Funding Agreement Provider entitled to vote within the meaning of Section 871(h)(3) of the Code and Treasury Regulations promulgated thereunder or (v) being subject to backup withholding as of the date of the purchase by the Holder of the Notes;
(b) any political subdivision tax, duty, levy, assessment or taxing authority other governmental charge which would not have been imposed but for the presentation of any 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 agency thereof the date on which payment is duly provided for, whichever occurs later;
(c) any tax, duty, levy, assessment or thereinother governmental charge which is imposed or withheld solely by reason of the failure of the beneficial owner or a Holder of Notes to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the beneficial owner or a Holder of Notes, if compliance is required by statute, by regulation of the United States Treasury Department, judicial or administrative interpretation, other law or by an applicable income tax treaty to which the United States is a party as a condition to exemption from such tax, duty, levy, assessment or other governmental charge;
(d) any inheritance, gift, estate, personal property, sales, transfer or similar tax, duty, levy, assessment, or similar governmental charge;
(e) any tax, duty, levy, assessment or other governmental charge that is payable otherwise than by withholding from payments in respect of the Notes;
(f) any tax, duty, levy, assessment or other governmental charge imposed by reason of payments on the Notes being treated as contingent interest described in Section 871(h)(4) of the Code for United States Federal income tax purposes provided that such treatment was described in the Pricing Supplement;
(g) any tax, duty, levy, assessment or other governmental charge that would not have been imposed but for an election by the Holder of the Notes, the effect of which is to make payment in respect of the Notes subject to United States Federal income tax or withholding tax provisions; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g) above.
Appears in 2 contracts
Sources: Standard Indenture Terms (Allstate Life Global Funding), Standard Indenture Terms (Allstate Life Global Funding)
Additional Amounts. After Unless otherwise provided in the occurrence Board Resolution or supplemental indenture pursuant to Section 3.1 establishing the terms of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successorparticular series of Securities, a “non-U.S. Payor”), the Company will make all payments made by a non-U.S. Payor on of principal and premium, if any, interest and any other amounts on, or with in respect to of, the Notes or Securities of any guarantee of the Notes will be made series without withholding or deduction at source for, or on account of, any present or future taxtaxes, dutyfees, levyduties, impost, assessment assessments or other similar governmental charge (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation charges of administration of law. If any deduction or withholding for, or on account of, any Taxes whatever nature imposed or levied by or on behalf of:
(1) of any jurisdiction (other than the United States Relevant Jurisdiction or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes of any Relevant Jurisdiction or any guarantee authority in or of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein Relevant Jurisdiction having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision , unless such taxes, fees, duties, assessments or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered charges are required to be withheld or deducted. If a resident for tax purposeswithholding or deduction at source is required, the Company shall, unless otherwise provided in the Board Resolution or any political subdivision or governmental authority thereof or therein having supplemental indenture pursuant to Section 3.1 establishing the power terms of a particular series of Securities, subject to tax (each of clauses (1) certain limitations and (2)exceptions set forth below, a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect pay to the Notes or Holder of any guarantee of the Notes, including payments such Security such Additional Amounts as may be necessary so that every net payment of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with interest or any other amount made to such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder Holder, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts)deduction, will shall not be less than the amounts that would have been received amount provided for in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deductionSecurity and this Indenture to be then due and payable; provided, however, that no the Company shall not be required to make payment of such Additional Amounts will be payable Amounts:
(a) for or on account of:
(1) any Taxes that would not have been so imposed behalf of such ▇▇▇▇▇▇ who is liable to such taxes or levied but for the existence duties in respect of any present or former Securities of such series by reason of having some connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and with the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, other than the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or mere holding of Securities of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereofseries;
(2b) any Taxes that would not have been so imposed or levied in connection with presentation in the Relevant Jurisdiction where presentation is required;
(c) if the Holder or the beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably relevant Securities failed to comply with that request) a request by the Company or other authorized person addressed to the Holder or the beneficial owner, as the case may be, to provide information concerning the nationality, residence or identity of the Holder or the beneficial owner or to make a any declaration of nonresidence or any other similar claim or filing or to satisfy any certification, identification, information or reporting requirement for exemption fromother requirement, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction a taxing jurisdiction as a precondition to exemption from, from all or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee part of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a tax and which such Holder or beneficial owner who would have been is legally able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agentsatisfy;
(6d) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within , more than 30 days after the relevant payment was due and first made available for payment to the Holder Relevant Date (provided that notice of such payment is given to the Holders), as defined below) except to the extent that the Holder or beneficial owner or other such Person would have been entitled to such Additional Amounts Amounts, on presenting the Note same for payment on such thirtieth day; or
(e) with respect to any date during such 30-day period combination of items Section 4.4(a), (b), (c) or (y) whered); nor shall Additional Amounts be paid with respect to any payment of the principal of, had or premium, if any, interest or any other amounts on, any such Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such Security if such payment would be required by the Note been the Holder laws of the Note, Relevant Jurisdiction (or any political subdivision or relevant taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or partner or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to payment of such Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted had it been the full amount deducted or withheld to the relevant taxing authority Holder of the Security. For the purposes hereof the “Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts evidencing Date” means the date on which the payment of principal of (or premium, if any, on) or interest, if any, on any Taxes so deducted series of Securities first becomes due or (if any amount of the money payable is improperly withheld from each relevant taxing authority or refused) the date on which payment in full of each Relevant Taxing Jurisdiction imposing the amount outstanding is made or (if earlier) the date on which notice is duly given to such Taxes and will provide such certified copies to Holder that upon presentation of the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor Security in global or definitive form payment will be obligated to pay Additional Amounts under or with respect to any made provided that payment is in fact made on the Notes, at least 30 days prior to the date of upon such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinpresentation.
Appears in 2 contracts
Sources: Indenture (National Grid PLC), Indenture (National Grid PLC)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor the Company on or with respect to the Notes or any guarantee of the Notes will ------------------ be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “"Taxes”") imposed or levied by or on behalf of Germany or any jurisdiction in which the Company or any Successor Company is organized or is otherwise resident for tax purposes or any political subdivision thereof or any authority having power to tax therein or any jurisdiction from or through which payment is made (each a "Relevant Taxing Jurisdiction"), unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will shall at any time be required from on any payments made by the Company with respect to the Notes or any guarantee of the Notes, including payments of Accreted Value, principal, redemption price, interest or premium, if any, the non-U.S. Payor Company will pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts)deduction, will not be less than equal the respective amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, except that no such Additional Amounts will be payable for or on account ofwith respect to:
(1a) any payments on a Note held by or on behalf of a Holder or beneficial owner who is liable for such Taxes that would not have been so imposed in respect of such Note by reason of the Holder or levied but for the existence of any present or former beneficial owner having some connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and with the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than by the acquisition, ownership or mere holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof;
(2b) any Taxes that would not have been so are imposed or levied if withheld as a result of a change in law after the Issue Date where such withholding or imposition is by reason of the failure of the Holder or beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) any request by the Company to provide information concerning the nationality, residence or identity of such Holder or beneficial owner or to make a any declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or reporting requirement for exemption fromrequirement, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from all or reduction in the rate part of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5c) except in the case of the winding up of the Company, any Taxes imposed in connection with a Note presented for payment (where presentation is required for paymentrequired) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting in the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements)Relevant Taxing Jurisdiction; or
(7d) any combination of Note presented for payment (where presentation is required) more than 30 days after the aboverelevant payment is first made available for payment to the Holder. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner he would not have been entitled to payment of Additional Amounts by reason of any of clauses (1a) to (7d) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 2 contracts
Sources: Indenture (Cybernet Internet Services International Inc), Indenture (Cybernet Internet Services International Inc)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor the Company on or with respect to the Notes (whether or any guarantee not in the form of the Notes Definitive Notes) will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “"Taxes”") unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of (1) any jurisdiction (other than Luxembourg, the United States States, Ireland or any political subdivision or governmental authority of any thereof or therein having power to tax, (2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payormade, or any political subdivision or governmental authority thereof or therein having the power to tax; or
tax or (23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. the Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1), (2) and (23), a “"Relevant Taxing Jurisdiction”"), will unless the withholding or deduction of Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption priceRedemption Price, interest interest, premium or premiumLiquidated Damages, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; providedPROVIDED, howeverHOWEVER, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any payments to a Holder or beneficial owner who is liable for such Taxes that would not have been so imposed in respect of such Note by reason of the Holder's or levied but for the existence of beneficial owner's having any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and with the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than by the acquisition, ownership or mere holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof;
(2) any Taxes that would not have been so are imposed or levied if withheld where such withholding or imposition is by reason of the failure of the Holder or beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) any reasonable and timely request by the Payor to provide information concerning the nationality, residence or identity of such Holder or beneficial owner or to make a any declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrelating to such matters, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation regulation, protocol, or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from all or reduction part of such Taxes;
(3) except in the rate case of deduction or withholding ofthe winding up of the Payor, any such TaxesNote presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor's actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);
(34) 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 during such 30 day period);
(5) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, interest or Liquidated Damages, if any, on or with respect to the Notes or any guarantee of the Notes;
(46) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(57) a Tax imposed on a payment to an individual and required to be made pursuant to any Taxes European Union Directive (a "Directive") on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(8) a Tax imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, to another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 paying agent in a member state of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the aboveEuropean Union. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) 8) inclusive above. The non-U.S. Payors Upon request, the Company will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted provide the full amount deducted or withheld Trustee with documentation satisfactory to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and documentation will provide such certified copies be made available to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinupon request.
Appears in 2 contracts
Sources: Euro Indenture (MDCP Acquisitions I), Dollar Indenture (MDCP Acquisitions I)
Additional Amounts. After (a) All payments and deliveries made by, or on behalf of, the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor Company or any successor in interest to an Obligor of the Guarantors (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on ) under or with respect to the Notes Notes, including, but not limited to, payments of principal (including, if applicable, the Fundamental Change Repurchase Price and the Redemption Price, and for the avoidance of doubt, inclusive of capitalized PIK Interest), payments of interest (including capitalizing PIK Interest) and deliveries of Common Stock or any guarantee other Reference Property and/or payments of the Notes will cash, in each case, upon conversion, shall be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or governmental charges of whatever nature imposed or levied by a taxing authority within any jurisdiction (other than the United States of America or any state or other similar governmental charge political subdivision thereof) in which the Payor is, for tax purposes, organized or resident or doing business or through which payment is made or deemed made (collectivelyor, in each case, any political subdivision or taxing authority thereof or therein) (each, as applicable, a “TaxesRelevant Taxing Jurisdiction”) ), unless such withholding or deduction is required by law or by regulation or governmental policy having the interpretation of administration force of law. If In the event that any such withholding or deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if anyso required, the non-U.S. Payor will shall pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order to ensure that the net amounts amount received in respect of such payments by the Holder beneficial owner after such withholding or deduction (including any such deduction and after deducting or withholding from such any taxes on the Additional Amounts), will not be less than ) shall equal the amounts that would have been received in respect of by such payments on the Notes or the guarantees of the Notes in the absence of beneficial owner had no such withholding or deductiondeduction been required; provided, however, provided that no such Additional Amounts will shall be payable payable:
(i) for or on account of:
(1A) any Taxes tax, duty, assessment or other governmental charge that would not have been so imposed or levied but for for:
(1) the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor beneficial owner of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) Note and the Relevant Taxing Jurisdiction (including Jurisdiction, other than merely holding such Note or the receipt of payments thereunder, including, without limitation, such Holder or beneficial owner being or having been a citizen national, domiciliary or resident of such Relevant Taxing Jurisdiction or national of, treated as a resident thereof or carrying on being or having been physically present or engaged in a trade or business therein or maintaining having or having had a permanent establishment intherein;
(2) the presentation of such Note by the Holder (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of (including the Fundamental Change Repurchase Price and the Redemption Price, if applicable, and for the avoidance of doubt, inclusive of capitalized PIK Interest) and interest (including capitalizing PIK Interest) on, such Note or being physically present in, the Relevant Taxing Jurisdiction) but excludingdelivery of Common Stock and other Reference Property and/or payments of cash, in each case, any connection arising solely from the acquisition, ownership or holding upon conversion of such Notes Note became due and payable pursuant to the terms thereof or any guarantee was made or duly provided for; or
(3) the failure of the Notes Holder or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably beneficial owner to comply with that request) a timely request from the Payor to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make a any declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrelating to such matters, or reduction in if and to the rate of, withholding to which it is entitled (provided extent that due and timely compliance with such declaration of nonresidence or other claim, filing or requirement request is required by the applicable lawstatute, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction in order to reduce or eliminate any withholding or deduction as a precondition to exemption from, which Additional Amounts would have otherwise been payable to such Holder or reduction in the rate of deduction or withholding of, any such Taxes)beneficial owner;
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4B) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(5C) any Taxes imposed in connection tax, duty, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments under or with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able respect to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying AgentNotes;
(6D) any Taxes payable under Sections tax, assessment, withholding or deduction required by sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as of the date of the Offering Memorandum amended (or any amended or successor version that is substantively comparable and not materially more onerous to comply with“FATCA”), any current or future regulations Treasury Regulations or official interpretations thereofrulings promulgated thereunder, any agreements entered into pursuant theretolaw, and any intergovernmental agreements implementing the foregoing (including any legislation regulation or other official guidance relating 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 intergovernmental agreements); oragreement, or any agreement with the U.S. Internal Revenue Service under FATCA;
(7E) any combination of the above. Such Additional Amounts will also not tax, duty, assessment or other governmental charge required to be payable (x) withheld or deducted by any Paying Agent from any payment, if the such payment could have been made without such withholding or deduction by at least one other Paying Agent; or
(F) any combination of taxes referred to in the preceding clauses (A), (B), (C), (D) and (E), or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price and the Redemption Price, if applicable, and for the avoidance of doubt, inclusive of capitalized PIK Interest) and interest (including capitalizing PIK Interest) on, such Note or withholding the delivery of Common Stock or other Reference Property and/or payments of cash, in each case, upon conversion of such Note to a Holder, if the beneficiary Holder is a fiduciary, partnership or person other than the sole beneficial owner of the that payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that a beneficiary or settlor with respect to the Holder fiduciary, a partner or member of that partnership or a beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner who would not have been entitled to payment of such Additional Amounts by reason of any of clauses had that beneficiary, settlor, partner, member or beneficial owner been the Holder thereof.
(1b) to (7) inclusive above. The non-U.S. Payors will In the event that (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the a Relevant Taxing Jurisdiction determines that amounts should have been withheld or deducted in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts evidencing the payment respect of any Taxes so deducted payments or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts deliveries under or with respect to the Notes in excess of any payment made on amounts that were actually withheld or deducted by the Payor, and (ii) the Payor would have been required to pay Additional Amounts if such amounts had been withheld or deducted, then the Payor shall indemnify each beneficial owner of the Notes, at least 30 days prior on an after-tax basis, for any and all losses incurred as a result of its failure to make such withholdings and deductions and to pay Additional Amounts; provided that (i) only direct losses (and no consequential losses or damages) shall be recoverable pursuant to this Section 4.09(b), (ii) no indemnification shall be required pursuant to this Section 4.09(b) unless and until such beneficial owner has exhausted all reasonable remedies available to it to reduce or eliminate the amount of such losses, and (iii) as a condition of such indemnification such beneficial owner shall reasonably assist the Payor in any attempt the Payor may make to seek to secure a reduction or refund of any such amounts, which reduction or refund shall be for the account of the Payor to the date extent of any indemnification previously provided to such paymentbeneficial owner.
(c) If the Payor is required to make any deduction or withholding from any payments with respect to the Notes, the non-U.S. Payor will deliver to the Trustee an Officer’s Certificate stating official tax receipts evidencing 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 (unless such obligation to pay Additional Amounts arises less than 45 days prior remittance to the relevant payment datetax authorities of the amounts so withheld or deducted or other evidence reasonably satisfactory to the Trustee.
(d) Any reference in this Indenture or the Notes in any context to the delivery of Common Stock or other Reference Property and/or payments of cash, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indentureeach case, the Notes upon conversion of any Note or any guarantee of the Notes there is mention of, in any context:
(1) the payment of principal;
principal of (2including the Fundamental Change Repurchase Price and the Redemption Price, if applicable) redemption prices and interest on, any Note 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 Notes or any guarantee of the Notes; such reference Note, shall be deemed to include payment of Additional Amounts 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 pursuant to this Section 4.09.
(e) The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, obligations under this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will Section 4.09 shall survive any termination, defeasance or discharge of this Indenture the Indenture, any transfer by a holder or beneficial owner of its Notes, and will apply apply, mutatis mutandis mutandis, to any jurisdiction in which any successor to a non-U.S. the Payor is is, for tax purposes, organized or otherwise considered to be a resident for tax purposes or doing business or through which payment is made or deemed made (or, in each case, any political subdivision or taxing authority or agency thereof or therein).
Appears in 2 contracts
Sources: Indenture (Karyopharm Therapeutics Inc.), Indenture (Karyopharm Therapeutics Inc.)
Additional Amounts. After (a) The Company will duly and punctually pay the occurrence principal of a Non-U.S. Domicile Transaction (and premium, if any) and interest on the Notes in accordance with respect to any Obligor or any successor in interest to an Obligor the terms of the Notes and the Indenture.
(each such Obligor or successor, a “non-U.S. Payor”), all b) All payments made by a non-U.S. Payor the Company on or with respect to the Notes or any guarantee of the Notes will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge (collectively, “Taxes”) charges of whatever nature unless such withholding or deduction is then required by law or by the interpretation of administration of law. If The Company hereby further agrees, subject to the limitations and exceptions set forth below, that if any deduction or withholding forfor any present or future taxes, duties, assessments or on account of, any Taxes imposed or levied by or on behalf of:
other governmental charges of (1) any the jurisdiction (other than the United States or any political subdivision or governmental taxing authority thereof or therein having power to taxtherein) in which the Company is organized or otherwise considered, resident for tax purposes or (2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposesmade, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1) and (2), a “Relevant Taxing Jurisdiction”), will shall at any time be required from any payments made with respect to the Notes by such jurisdiction (or any guarantee such political subdivision or taxing authority) in respect of any amounts to be paid by the Company under the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor Company will pay (together with such payments) to each holder of a Note as additional interest, such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts paid to such holder of such Note, after such deduction or withholding, shall be equal to the amount such holder would have received in respect of such payments by the Holder after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes payment in the absence of such withholding or deduction; provided, however, that no such the Company shall not be required to make any payment of Additional Amounts will be payable for or on account of:
(1i) any Taxes that Any tax, assessment or other governmental charge which would not have been so imposed or levied but for (a) the existence of any present or former connection between the relevant Holder such holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of a power over, the relevant Holdersuch holder, if such Holder holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, in the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than by the acquisition, mere ownership or holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof;
thereof or (2b) any Taxes 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 (except to the extent that the holder would not have been so imposed or levied if the Holder of entitled to Additional Amounts had the Note had complied with a reasonable request in writing of the non-U.S. Payor (been presented during such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes30 day period);
(3ii) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any Any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(5iii) Any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of (or in respect of) principal of, premium, if any, or any interest on, Notes;
(iv) Any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the holder or the beneficial owner of the Note with a request of the Company addressed to the holder (a) to provide information, documents or other evidence concerning the nationality, residence or identity of the holder or such beneficial owner or (b) to make and deliver any declaration or other similar claim (other than a claim for refund of a tax, assessment or other governmental charge withheld by the Company) or satisfy any information or reporting requirements, which, in the case of (a) or (b), is required or imposed by a statue, 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;
(v) any Taxes withholding or deduction imposed in connection with on a Note presented for payment to an individual and required to be made pursuant to the European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council Meeting of 26-27 November 2000 on the taxation of savings income, or any law implementing or complying with, or introduced to conform to, these Directives;
(vi) any tax, assessment or other governmental charge that could have been avoided by the presentation (where presentation is required for paymentrequired) by or on behalf of a Holder holder of the relevant Note to another Paying Agent in a member state of the European Union; or
(vii) any combination of items (i), (ii), (iii), (iv), (v) and (vi) above; nor shall Additional Amounts be paid with respect to any payment of the principal of, or any premium or interest on, any Note to any holder who is a fiduciary or partnership or limited liability company or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the Relevant Taxing Jurisdiction to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership, limited liability company or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of such Additional Amounts by reason had it been the holder of such Note.
(c) At least ten days prior to each date on which any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make payment under or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld with respect to the relevant taxing authority of Notes is due and payable (unless such obligation to pay Additional Amounts arises shortly before or after the Relevant Taxing Jurisdiction tenth day prior to such date, in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts evidencing which case it shall be promptly thereafter), if the payment of any Taxes so deducted or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor Company will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor Company will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable and payable, the amount amounts so payable and will set forth such other information necessary to enable the Paying Agent Trustee to pay such Additional Amounts to Holders holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver . Each such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled relied upon until receipt of a further Officers’ Certificate addressing such matters.
(d) If the Company conducts business in any jurisdiction (an “Additional Taxing Jurisdiction”) other than a Relevant Taxing Jurisdiction and, as a result, is required by the law of such Additional Taxing Jurisdiction to rely solely deduct or withhold any amount on account of taxes imposed by such Officer’s Certificate Additional Taxing Jurisdiction from payments under the Notes, as conclusive proof that the case may be, which would not have been required to be so deducted or withheld but for such payments are necessary. Wherever conduct of business in this Indenturesuch Additional Taxing Jurisdiction, the Notes 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 guarantee of the Notes there is mention of, in any context:political subdivision thereof or taxing authority therein).
(1e) 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors Company will pay any present or future stamp, court or documentary Taxestaxes, or any other excise, excise or property taxes (other than net wealth taxes or similar Taxes taxes imposed on the holder irrespective of such holder’s investment in the Notes and based on the total net value of the holder’s property), charge or similar levies that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, enforcement or registration or enforcement of any Notes, this Indenture the Notes or any other document or instrument in relation thereto (other than a transfer of the Notes). , and the Company will agree to indemnify the holders for any such Taxes paid by such holders.
(f) The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor Company is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein. Upon request, the Company will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies of such documentation will be made available to the holders of the Notes upon request.
Appears in 2 contracts
Sources: Indenture (Stena Ab), Indenture (Stena Ab)
Additional Amounts. After Unless otherwise specified in any Officer's Certificate of the occurrence Company setting forth the terms of Securities of a Non-U.S. Domicile Transaction series in accordance with respect to Section 301, if any Obligor deduction or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or with respect to the Notes or any guarantee of the Notes will be made without withholding or deduction for, or on account of, for any present or future taxtaxes, duty, levy, impost, assessment assessments or other similar governmental charge (collectivelycharges of The Netherlands, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding forThe Hellenic Republic or, or on account ofif applicable, any Taxes imposed or levied by or on behalf of:
other jurisdiction, (1) any jurisdiction (other than the United States or including any political subdivision or governmental taxing authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to taxtherein) in which a non-U.S. Payor that actually makes a payment on either the Notes Company or its guarantee of the Notes Guarantor is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will incorporated shall at any time be required from by such jurisdictions (or any payments made with such political subdivision or taxing authority thereof or therein) in respect of any amounts to be paid by the Company or the Guarantor relating to principal of or interest on a Security of any series or the Guarantees thereon, the Company or the Guarantor, as the case may be, will pay as additional interest to the Notes or any guarantee Holder of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) Security such additional amounts (the “Additional Amounts”) amounts, as may be necessary in order that the net amounts received in respect paid to such Holder pursuant to the terms of such payments by the Holder Security or the Guarantees, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts)withholding, will shall be not be less than the such additional amounts that as such Holder would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deductionotherwise be entitled to receive; provided, however, that no such Additional Amounts will additional amounts shall be payable only to Holders (a) that are not resident in The Netherlands for purposes of its tax, (b) that are not resident in The Hellenic Republic for purposes of its tax and do not have a Greek Tax Registration Number (AFM), and (c) if applicable, that are not resident for tax purposes and are not registered with the tax authorities in any other applicable jurisdiction (or any such political subdivision or taxing authority thereof or therein) in which the Company or the Guarantor or any successor thereto may be incorporated; and provided, further, that neither the Company nor the Guarantor shall be required to make any payment of additional amounts for or on account of:
(1) any Taxes that tax, assessment or other governmental charge which would not have been so imposed or levied but for the existence of any present or former connection between the relevant such Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of a power over, the relevant such Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company partnership or corporation) and the Relevant Taxing Jurisdiction applicable jurisdiction, or any political subdivision or territory or possession thereof or therein or area subject to its jurisdiction, including, without limitation, such Holder (including or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or national of, treated as a resident thereof or carrying on a there having been present or engaged in trade or business therein or maintaining having or having had a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;therein,
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excisetransfer, transferstamp, personal property or similar Taxes;tax, assessment or other governmental charge,
(3) any tax, assessment or other governmental charge which is payable other than by withholding from payments of (or in respect of) principal of, premium, if any or any interest on, the Securities,
(4) any tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of principal, premium, if any, or any interest on, any Security, if such payment can be made without such withholding by any other Paying Agent,
(5) any Taxes tax, assessment or other governmental charge which would not have been imposed in connection with or withheld if such Holder had made a Note presented timely and accurate declaration of non-residence or other similar claim for payment (where exemption or present any applicable form or certificate, upon the making or presentation is required for payment) by or on behalf of a which that Holder or beneficial owner who would either have been able to avoid such Tax by presenting tax, assessment or charge or to obtain a refund of such tax, assessment or charge, including certification or documentation to the relevant Note toeffect that such Holder or beneficial owner is not a resident and lacks other connections with the applicable jurisdiction, as the case may be, or otherwise accepting payment from, another Paying Agent;had made any other declaration or satisfied any other information requirements required to avoid such tax assessment or other governmental charge,
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with)tax, any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation assessment or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also governmental charge which would not be payable (x) if the payment could have been made without such deduction or withholding if imposed but for the beneficiary presentation of the payment had presented the Note for payment a Security (where presentation is required) within for payment on a date more than 30 days after the relevant date on which such payment was became due and first made available for payable or the date on which payment thereof was duly provided for, whichever occurred later,
(7) any payment under or with respect to a Security to any Holder that is a fiduciary or partnership or any person other than the Holder (provided that notice sole beneficial owner of such payment is given to the Holders)or Security, except to the extent that the Holder a beneficiary or beneficial owner settlor with respect to such fiduciary, a member of such partnership or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner payment or Security would not have been entitled to payment the additional amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of Additional Amounts such Security,
(8) any withholding tax required to be deducted by reason the Company or the Guarantor from any amounts to be paid by Company or the Guarantor under the Securities or the Guarantees, as the case may be, pursuant to the European Union Directive on the taxation of savings implementing the conclusions of the European Council of Economic and Finance Ministers ("ECOFIN") meeting on June 3, 2003, or any law implementing or complying with, or introduced in order to conform to, such Directive, or
(9) any combination of clauses the items (1) to ), (2), (3), (4), (5), (6), (7) inclusive and (8) above. The non-U.S. Payors will (i) make or cause If applicable to be made the relevant series of Securities, the foregoing provisions shall apply mutatis mutandis to any required withholding or deduction and (ii) remit for or cause to be remitted the full amount deducted or withheld to the relevant taxing authority on account of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamptaxes, court assessments or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement governmental charges of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer whatever nature of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to a non-U.S. Payor the Company or the Guarantor is organized or otherwise considered to be a resident for tax purposes organized, or any political subdivision or taxing authority or agency thereof or therein; provided, further, however, that such payment of additional amounts may be subject to such further exceptions as may be established in the terms of such Securities or Guarantees. If the terms of the Securities of a series provide for the payment of additional amounts, at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Officer's Certificate, the Company will furnish the Trustee and the Company's principal Paying Agent or Paying Agents, if other than the Trustee, with an Officer's Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal and any premium or interest on the Securities of that series shall be made to Holders of Securities of that series without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of that series. If any such withholding shall be required, then such Officer's Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders, specify by country any additional amounts payable and the Issuer or the Guarantor, as the case may be, will pay to the Trustee or such Paying Agent or Paying Agents the additional amounts required by this Section. Each of the Company and the Guarantor covenant to indemnify each of the Trustee and any Paying Agent for, and to hold each of them harmless against, any loss, liability or expense reasonably and properly on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officer's Certificate furnished pursuant to this Section, except to the extent that any such loss, liability or expense is due to its own negligence or bad faith.
Appears in 2 contracts
Sources: Indenture (Coca-Cola Hellenic Bottling Co Sa), Indenture (Coca-Cola Hellenic Bottling Co Sa)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), a) The Company will make all payments made by a non-U.S. Payor of cash or deliveries of Ordinary Shares, Reference Property or otherwise (whether upon conversion, repurchase, redemption, maturity or otherwise) on or with respect to the Notes or any guarantee account of the Notes will be made Securities without withholding or deduction for, or deducting on account of, of any present or future tax, duty, levy, impost, assessment or other similar governmental charge in the nature of a tax (collectivelyincluding, without limitation, penalties, interest and other additions thereto) (a “TaxesTax”) imposed or levied by or on behalf of the government of any jurisdiction in which the Company, or any entity that assumes the Company’s rights and obligations under the Securities (a “Surviving Person”) is or is deemed to be organized, resident or doing business for tax purposes (or any political subdivision or taxing authority thereof or therein) (each, a “Relevant Jurisdiction”), unless such withholding or deduction is required by law law, rule, regulation or by governmental policy having the interpretation of administration force of law. If any such withholding or deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if anyrequired, the non-U.S. Payor will Company or the Surviving Person, as the case may be, shall make such withholding or deduction and pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order so that the net amounts amount of cash, Ordinary Shares or Reference Property, as applicable, received in respect by each Holder of such payments by Securities after the Holder after such withholding or deduction (including any such deduction or withholding from such with respect to Additional Amounts), ) will not be less than the amounts that amount of cash, Ordinary Shares or Reference Property, as applicable, the Holder would have received if the Relevant Jurisdiction Taxes had not been received in respect of such payments on withheld or deducted. Notwithstanding the Notes or the guarantees of the Notes in the absence of such withholding or deduction; providedforegoing, however, that no such Additional Amounts will be payable payable:
(i) for or on account of:of any Taxes imposed by reason of the failure of the relevant Holder or beneficial owner of Securities to comply with a timely request from the Company or any successor to provide certification, information, documents or other evidence concerning such ▇▇▇▇▇▇’s nationality, residence, identity or connection with the Relevant Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that such Holder is legally eligible to comply with such request and such certification, information, documents or other evidence is required by statute, treaty, regulation or administrative practice of the Relevant Jurisdiction in order to reduce or eliminate any withholding or deduction;
(1ii) for or on account of any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder or beneficial owner of Securities (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of a power over, the relevant Holdersuch holder or beneficial owner, if such Holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company partnership or corporation) and the Relevant Taxing Jurisdiction taxing jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes Security or the enforcement of any rights in respect of such Security or the receipt of any payment in respect thereof;
(2iii) any Taxes that would not have been so imposed for or levied if the Holder on account of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, transfer, excise, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(5iv) for or on account of any Taxes imposed in connection payable other than by deduction or withholding from payments under, or with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note respect to, or otherwise accepting payment from, another Paying Agentthe Securities;
(6v) on account of a presentation of such Security (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, and interest on, such Security, or the delivery of Ordinary Shares or other Reference Property upon conversion of such Security, became due and payable pursuant to the terms thereof or was duly provided for;
(vi) for or on account of any Relevant Jurisdiction Taxes payable under Sections required by sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as of the date of the Offering Memorandum amended (or any amended or successor version that is substantively comparable and not materially more onerous to comply with“FATCA”), any current or future regulations U.S. Treasury Regulations or official interpretations thereofrulings promulgated thereunder, any agreements entered into pursuant theretolaw, and any intergovernmental agreements implementing the foregoing (including any legislation regulation or other official guidance relating 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 intergovernmental agreements)agreement, or any agreement with the U.S. Internal Revenue Service under FATCA;
(vii) for or on account of any Taxes after any Redemption Date with respect to which a Holder has made an election under Section 14.03; or
(7viii) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and through (iivii) above, (the “Excluded Taxes”).
(b) The Company will remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor will deliver to the Trustee an Officer’s Certificate stating the fact that Additional Amounts will be payable and paid in the amount so payable and such other information necessary to enable same manner as the Paying Agent to pay Additional Amounts to Holders payments or deliveries being made on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to applicable Interest Payment Date, on the relevant payment dateMaturity Date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date)on a Conversion Date, on a Redemption Date or on any Fundamental Change Repurchase Date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever Whenever in this Indenture, the Notes or any guarantee of the Notes Indenture there is mention ofmentioned, in any context:
(1) , the payment of principal;
(2) redemption prices principal amount and interest or purchase prices in connection with a redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on under, or with respect to to, any Security, including the payment of cash and/or the Notes delivery of Ordinary Shares or any guarantee of the Notes; Reference Property, such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under provided for in this Section 2.13 4.07 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors will pay .
(c) Neither the Trustee nor any present Securities Agent shall have any duties or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise obligations with respect to the determination of Additional Amounts.
(d) Anything in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer to the contrary notwithstanding, the covenants and provisions of the Notes). The foregoing obligations will this Section 4.07 shall survive any termination, defeasance termination or discharge of this Indenture Indenture, and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes the repayment of all or any political subdivision or taxing authority or agency thereof or thereinof the Securities, and shall remain in full force and effect.
Appears in 2 contracts
Sources: Indenture (Avago Technologies LTD), Indenture (Avago Technologies LTD)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments made by a non-U.S. Payor or on behalf of either Issuer under or with respect to the Notes or any guarantee of the Notes will be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectivelyincluding penalties, “interest and other liabilities related thereto) (hereinafter "Taxes”") unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than of the United States government of the Republic of ▇▇▇▇▇▇▇▇ Islands or any political subdivision or governmental any authority or agency therein or thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes either Issuer (including any successor entity) is organized or is otherwise considered to be a resident for tax purposes, or any political subdivision jurisdiction from or governmental authority thereof or therein having through which payment is made (including, without limitation, the power to tax jurisdiction of each Paying Agent) (each of clauses (1) and (2), a “Relevant Taxing "Specified Tax Jurisdiction”"), will at any time be required to be made from any payments made under or with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor such Issuer will pay (together with such payments) such additional amounts (or the “"Additional Amounts”") as may be necessary in order so that the net amounts amount received in respect of such payments by the a Holder (including Additional Amounts) after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that amount such Holder would have received if such Taxes had not been received in respect of such payments on the Notes withheld or the guarantees of the Notes in the absence of such withholding or deductiondeducted; provided, however, that no such the foregoing obligation to pay Additional Amounts will be payable for or on account ofdoes not apply to:
(1) any Taxes that would not have been so imposed or levied but for the existence Holder or beneficial owner of the Notes having any present or former connection between with the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Specified Tax Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, other than the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the mere acquisition, ownership or holding of such Notes or any guarantee of the Notes or the ownership, holding, enforcement or receipt of any payment in respect thereofof the Notes);
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge;
(3) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes;
(4) any Taxes imposed as a result of the failure of the Holder or beneficial owner of the Notes, to the extent it is legally entitled to do so, to complete, execute and deliver to the Partnership any form or document to the extent applicable to such Holder or beneficial owner that may be required by law or by reason of administration of such law and which is reasonably requested in writing to be delivered to the Partnership in order to enable the Issuers to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a lesser amount, which form or document will be delivered within 60 days of a written request therefor by the Partnership;
(5) any Taxes that would not have been so imposed in connection with but for the beneficiary of the payment having presented a Note presented for payment (where in cases in which presentation is required for paymentrequired) by more than 30 days after the date on which such payment or such Note became due and payable or the date on behalf of a which payment thereof is duly provided for, whichever is later (except to the extent that the Holder or beneficial owner who would have been able entitled to avoid Additional Amounts had the Note been presented on the last day of such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent30-day period);
(6) any Taxes payable under Sections 1471 through 1474 of imposed on or with respect to any payment by the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment Issuers to the Holder (provided that notice if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment is given to the Holders)payment, except to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the Holder or beneficial owner or other of such Person payment would not have been entitled to Additional Amounts on presenting the Note for payment on any date during had such 30-day period beneficiary, settlor, member or (y) where, had the beneficial owner of the Note been the actual Holder of the such Note;
(7) any Taxes that are required to be deducted or withheld on a payment pursuant to European Council Directive 2003/48/EC or any law implementing, or introduced in order to conform to, such beneficial owner would not have been entitled to payment directive; or
(8) any combination of Additional Amounts by reason of any of clauses items (1) to through (7) inclusive above. The non-U.S. Payors will .
(ib) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor either Issuer becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to any payment made on the Notes, the Partnership will deliver to the Trustee and Paying Agent at least 30 days prior to the date of such paymentthat payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the non-U.S. Payor Partnership will deliver notify the Trustee and Paying Agent promptly thereafter but in no event later than two Business Days prior to the Trustee date of payment) an Officer’s 's Certificate stating the fact that Additional Amounts will be payable and the amount so payable and such payable. The Officer's Certificate must also set forth any other information necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall and Paying Agent will be entitled to rely solely on such Officer’s 's Certificate as conclusive proof that such payments are necessary. Wherever The Partnership will provide the Trustee and Paying Agent with documentation evidencing the payment of Additional Amounts.
(c) Each Issuer will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant governmental authority on a timely basis in this Indentureaccordance with applicable law. As soon as practicable, the Notes or any guarantee Partnership will provide the Trustee and Paying Agent with an official receipt or, if official receipts are not obtainable, other documentation evidencing the payment of the Notes Taxes so withheld or deducted. Upon request, copies of those receipts or other documentation, as the case may be, will be made available by the Trustee and Paying Agent to the Holders of the Notes.
(d) Whenever in the Indenture there is mention ofreferenced, in any context:
(1) , the payment of amounts based upon the principal amount of the Notes or of principal;
(2) redemption prices , interest or purchase prices in connection with a redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on under, or with respect to any of the Notes or any guarantee of to, the Notes; , such reference shall will be deemed to include payment of Additional Amounts as described under this Section 2.13 heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) Each Issuer will indemnify a Holder, within 10 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder to a governmental authority of a Specified Tax Jurisdiction, on or with respect to any payment by on or account of any obligation of such Issuer to withhold or deduct an amount on account of Taxes for which such Issuer would have been obliged to pay Additional Amounts hereunder and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant governmental authority. The non-U.S. Payors A certificate as to the amount of such payment or liability delivered to the Partnership by a Holder will be conclusive absent manifest error.
(f) Each Issuer will pay any present or future stamp, court, issue, registration, value added, court or documentary Taxes, taxes or any other exciseexcise or property taxes, property charges or similar Taxes levies that arise in any Relevant Taxing Specified Tax Jurisdiction from the execution, delivery, issuance, initial resale, enforcement or registration or enforcement of any the Notes, this the Indenture or any other document or instrument in relation thereto (other than a transfer thereof, or the receipt of any payments with respect to the Notes, other than, for the avoidance of doubt, any Transfer Taxes (each such tax, a "Note Issuance Tax"). The foregoing obligations , and such Issuer will survive indemnify the Holders for any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinsuch Note Issuance Taxes paid by such Holders.
Appears in 2 contracts
Sources: Supplemental Indenture (Dynagas LNG Partners LP), Supplemental Indenture (Dynagas Finance Inc.)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by or on behalf of a non-U.S. Payor on Foreign Guarantor under or with respect to the Notes or any guarantee of the Notes its Guarantee will be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) Taxes unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes any Foreign Guarantor is then incorporated, organized, engaged in business or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax or any jurisdiction from or through which payment is made, excluding the United States and any political subdivision thereof (each of clauses (1) and (2)each, a “Relevant Taxing Tax Jurisdiction”), will at any time be required to be made from any payments made by or on behalf of any Foreign Guarantor with respect to the Notes or any guarantee of the NotesGuarantee, including including, without limitation, payments of principal, redemption price, purchase price, interest or premium, if any, the non-U.S. Payor Foreign Guarantor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder (including Additional Amounts) after such withholding or withholding, deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the respective amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1a) any Taxes that would not have been so imposed or levied but for the existence Holder or beneficial owner of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including Notes being a citizen or citizen, resident or national of, incorporated in or carrying on a business or maintaining a permanent establishment inin the relevant Tax Jurisdiction in which such Taxes are imposed, or being physically having any other present in, or former connection with the Relevant Taxing Jurisdiction) but excluding, relevant Tax Jurisdiction in each case, any connection arising solely from which such Taxes are imposed other than by the acquisition, ownership mere acquisition or holding of such Notes or any guarantee of the Notes note or the enforcement or receipt of any payment under or in respect thereofof any note or any Guarantee;
(2b) any Taxes that would not have been so imposed or levied if withheld as a result of the failure of the Holder or beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably Notes to comply with any reasonable written request, made to that request) Holder in writing at least 30 days before any such withholding or deduction would be payable, by any Foreign Guarantors to provide timely or accurate information concerning the nationality, residence or identity of such Holder or to make a any valid or timely declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrequirements (to the extent such Holder or beneficial owner is legally eligible to do so), or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation or official administrative practice of the Relevant Taxing relevant Tax Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3c) any Taxes that are payable otherwise than by withholding from imposed or withheld as a payment on or with respect to the Notes or any guarantee result of the Notes;
(4) presentation of any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented note for payment (where presentation is required for payment) by or on behalf Notes are in the form of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable definitive Notes and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within more than 30 days after the relevant payment was due and is first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts had the note been presented on presenting the Note for last day of such 30 day period);
(d) any estate, inheritance, gift, sale, transfer, use, personal property tax or similar tax or assessment;
(e) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes or any Guarantee;
(f) any Tax that was imposed with respect to any payment on a Note to any date during Holder who is a fiduciary partnership, limited liability company or any person other than the sole beneficial owner of such 30-day period payment, to the extent that a beneficiary or (y) wheresettlor with respect to such fiduciary, had a member of such a partnership or limited liability company or the beneficial owner of the Note been the Holder of the Note, such beneficial owner payment would not have been entitled to payment of the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note;
(g) 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), 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
(h) any combination of items (a) through (g) above. In addition to the foregoing, any Foreign Guarantor will pay and indemnify the Holder for any present or future stamp, issue, registration, transfer, court or documentary taxes, or any other excise or property taxes, charges or similar levies or Taxes levied by reason any jurisdiction on the execution, delivery, registration or enforcement of any of clauses the Notes, any Guarantee (1) to (7) inclusive above. The non-U.S. Payors will (i) make other than on or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority in connection with a transfer of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts Notes other than the initial sale by the Initial Purchaser) or any other document or instrument referred to obtain certified copies of tax receipts evidencing therein, or the payment receipt of any Taxes so deducted or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders payments with other reasonable evidencerespect thereto. If any non-U.S. Payor Foreign Guarantor becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any payment made Guarantee, the relevant Foreign Guarantor will deliver to the trustee on the Notes, a date at least 30 days prior to the date of such paymentpayment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the non-U.S. Payor will deliver to relevant Foreign Guarantor shall notify the Trustee trustee promptly thereafter) an Officer’s Certificate officers’ certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and such payable. The officers’ certificate must also set forth any other information reasonably necessary to enable the Paying Agent paying agent to pay Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee trustee shall be entitled to rely solely on such Officer’s Certificate officers’ certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, The relevant Foreign Guarantor will provide the Notes or any guarantee of trustee with documentation reasonably satisfactory to the Notes there is mention of, in any context:
(1) trustee evidencing the payment of principal;
(2) redemption prices Additional Amounts. The relevant Foreign Guarantor will make all withholdings and deductions required by law and will remit the full amount deducted or purchase prices withheld to the relevant Tax authority in connection accordance with a redemption applicable law. The relevant Foreign Guarantor will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or purchase withheld. The relevant Foreign 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 Foreign Guarantor or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments by such entity. Whenever the Indenture or this “Description of Notes;
(3) interest; or
(4) ” mentions the payment of amounts based on the principal amount, interest of any other amount payable on under, or with respect to to, any of the Notes or any guarantee of the Notes; notes, such reference mention shall be deemed to include the payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations above obligation will survive any termination, defeasance or discharge of this Indenture the Indenture, any transfer by a Holder of its Notes, and will apply apply, mutatis mutandis mutandis, to any jurisdiction in which any successor Person to a non-U.S. Payor any Foreign Guarantor is organized then incorporated, organized, engaged in business or otherwise considered to be a resident for tax purposes or any jurisdiction from or through which such person makes any payment on the Notes (or any Guarantee) and any political subdivision or taxing authority or agency thereof or thereintherein having the power to tax.
Appears in 2 contracts
Sources: Indenture (F&G Annuities & Life, Inc.), Indenture (FGL Holdings)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor the Company on or with respect to the Notes (whether or any guarantee not in the form of the Notes Definitive Notes) will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of (1) any jurisdiction (other than Luxembourg, the United States States, Ireland or any political subdivision or governmental authority of any thereof or therein having power to tax, (2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payormade, or any political subdivision or governmental authority thereof or therein having the power to tax; or
tax or (23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. the Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1), (2) and (23), a “Relevant Taxing Jurisdiction”), will unless the withholding or deduction of Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption priceRedemption Price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any payments to a Holder or beneficial owner who is liable for such Taxes that would not have been so imposed in respect of such Note by reason of the Holder’s or levied but for the existence of beneficial owner’s having any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and with the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than by the acquisition, ownership or mere holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof;
(2) any Taxes that would not have been so are imposed or levied if withheld where such withholding or imposition is by reason of the failure of the Holder or beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) any reasonable and timely request by the Payor to provide information concerning the nationality, residence or identity of such Holder or beneficial owner or to make a any declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrelating to such matters, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation regulation, protocol, or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from all or reduction part of such Taxes;
(3) except in the rate case of deduction or withholding ofthe winding up of the Payor, any such TaxesNote presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);
(34) 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 during such 30 day period);
(5) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest on or with respect to the Notes or any guarantee of the Notes;
(46) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(57) a Tax imposed on a payment to an individual and required to be made pursuant to the Directive or any Taxes law implementing or complying with, or introduced in order to conform to, such Directive; or
(8) a Tax imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, to another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 paying agent in a member state of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the aboveEuropean Union. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) 8) inclusive above. The non-U.S. Payors Upon request, the Company will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted provide the full amount deducted or withheld Trustee with documentation satisfactory to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and documentation will provide such certified copies be made available to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinupon request.
Appears in 2 contracts
Sources: Euro Indenture (JSG Acquisitions I), Dollar Indenture (JSG Acquisitions I)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments made by a non-U.S. Payor on the Issuers under or with respect to the Notes or any guarantee of the Notes Guarantors on its Guarantee will be made without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) Taxes unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of any jurisdiction in which the Issuers or any Guarantor (other than the United States including any successor entity), is then incorporated, engaged in business or resident for tax purposes or any political subdivision or governmental authority thereof or therein having power to tax) from or any jurisdiction by or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2)each, a “Relevant Taxing Tax Jurisdiction”), will at any time be required to be made from or Taxes imposed directly on any Holder or beneficial owner of the Notes on any payments made by the Issuers under or with respect to the Notes or any guarantee of the NotesGuarantors with respect to any Guarantee, including payments of principal, redemption price, purchase price, interest or premium, if anythe Issuers or the relevant Guarantor, the non-U.S. Payor as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the each Holder (including Additional Amounts) after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the respective amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding withholding, deduction or deductionimposition; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any Tax imposed by the United States or by any political subdivision or taxing authority thereof or therein;
(2) any Taxes that which would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciarythe beneficial owner of the Notes, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including as being a citizen or resident or national of, incorporated in or carrying on a business or maintaining a permanent establishment inbusiness, or being physically present in, and the Relevant relevant Taxing Jurisdiction) but excluding, Jurisdiction in each case, any connection arising solely from which such Taxes are imposed (other than by the acquisition, ownership or mere holding of such Notes note or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice connection arising as a result of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in holding of the rate of deduction or withholding of, any such Taxes)Notes;
(3) any Taxes that are payable otherwise than by withholding from imposed or withheld as a payment on result of the failure of the Holder or with respect to beneficial owner of the Notes to comply with any written request, made to that Holder or beneficial owner in writing at least 30 days before any such withholding or deduction would be payable, by the Issuers or any guarantee of the NotesGuarantors or any other Person through whom payment may be made to provide timely or accurate information concerning the nationality, residence or identity of such Holder or beneficial owner or to make any valid or timely declaration or similar claim or satisfy any certification information or other reporting requirement, which is required or imposed by a statute, treaty, regulation or administrative practice of the relevant Tax Jurisdiction as a precondition to exemption from all or part of such Taxes;
(4) any Note presented for payment (where a Note is in the form of a definitive Note 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);
(5) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by tax or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agentassessment;
(6) any Taxes payable under Sections 1471 through 1474 withheld, deducted or imposed on a payment to an individual and which are required to be made pursuant to European Council Directive 2003/48/EC or any other directive implementing the conclusions of the Code as ECOFIN Council meeting of 26 and 27 November 2000 on the date taxation of the Offering Memorandum (savings income or any amended law implementing or successor version that is substantively comparable and not materially more onerous complying with or introduced in order to comply with)conform to, any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements)Directive; or
(7) any combination of items (1) through (6) above.
(b) The Issuers and the above. Such Additional Amounts Guarantors will also not be payable pay and indemnify the holder for any present or future stamp, issue, registration, transfer, court or documentary taxes, or any other excise or property taxes, charges or similar levies or Taxes which are levied by any jurisdiction in which the Issuers or any Guarantor (xincluding any successor entity) if is then incorporated, engaged in business or resident for tax purposes or any political subdivision thereof or therein on the payment could have been made without such deduction execution, delivery, registration or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason enforcement of any of clauses (1) the Notes, this Indenture, any Guarantee, or any other document or instrument referred to (7) inclusive above. The non-U.S. Payors will (i) make therein, or cause to be made the receipt of any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld payments with respect to the relevant taxing authority of Notes or the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts evidencing Guarantees.
(c) If either Issuer or any Guarantor, as the payment of any Taxes so deducted or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. Ifcase may be, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor 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 payment made Guarantee, the relevant Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee on the Notes, a date which is at least 30 days prior to the date of such paymentthat payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the non-U.S. Payor will deliver to relevant Issuer or the relevant Guarantor shall notify the Trustee promptly thereafter) an Officer’s Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and such payable. The Officers’ Certificate must also set forth any other information reasonably necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date date. The relevant Issuer or the relevant Guarantor will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts.
(unless such obligation to pay Additional Amounts arises less than 45 days prior d) The relevant Issuer or the relevant Guarantor will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The relevant Issuer or the relevant Guarantor will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment dateof any Taxes so deducted or withheld. The relevant Issuer or the relevant Guarantor will furnish to the Holders, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable within 60 days after the date that is 30 days prior to the payment date). The Trustee shall be entitled of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the relevant Issuer or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to rely solely on obtain receipts, receipts are not obtained, other evidence of payments by such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever entity.
(e) Whenever in this Indenture, the Notes or any guarantee of the Notes Indenture there is mention ofmentioned, in any context:
(1) , the payment of amounts based upon the principal amount of the Notes or of principal;
(2) redemption prices , interest or purchase prices in connection with a redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on under, or with respect to to, any of the Notes or any guarantee of the Notes; , such reference mention shall be deemed to include mention of the payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 2 contracts
Sources: Indenture (MagnaChip Semiconductor LTD (United Kingdom)), Indenture (MagnaChip Semiconductor LTD (United Kingdom))
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all i) All payments made by a non-U.S. Payor or on behalf of the Company on or with respect to the Notes or any guarantee of the Notes will shall be made free and clear of and without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges, in each case, in the nature of a tax (collectivelyincluding penalties, “Taxes”interest and other liabilities related thereto) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf Government of a non-U.S. PayorBermuda, or any political subdivision or governmental taxing authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposestherein, or any political subdivision or governmental authority thereof or therein having jurisdiction through which payment is made (the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will unless such taxes, duties, assessments or other governmental charges are required by law or by the official interpretation or administration thereof to be withheld or deducted. If any deduction or withholding for any present or future taxes, duties, assessments or other governmental charges of the Relevant Taxing Jurisdiction shall at any time be required from by the Relevant Taxing Jurisdiction in respect of any payments made with amounts to be paid by the Company on or in respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor Company will pay (together with such payments) to each Holder of Notes as additional interest such additional amounts (the “Additional Amounts”) as may be necessary in order so that the net amounts received in respect of paid to each such payments by the Holder Holder, after such withholding or deduction (including any such deduction or withholding from (and after deducting taxes on such Additional Amounts), will shall be not be less than the amounts that such Holder would have received if such taxes, duties, assessments or other governmental charges had not been received in respect of such payments on the Notes withheld or the guarantees of the Notes in the absence of such withholding or deductiondeducted; provided, however, that no such the Company shall not be required to make any payment of Additional Amounts will be payable for for, or on account of, any:
(1a) any Taxes that present or future tax, duty, assessment or other governmental charge which would not have been so imposed or levied but for (a) the existence of any a present or former connection between the relevant such Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant such Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company partnership or corporation) and the Relevant Taxing Jurisdiction Jurisdiction, as the case may be, including, without limitation, such Holder (including or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen domiciliary, national or resident thereof or national of, being or carrying on a having been present or engaged in trade or business therein or maintaining having or having had a permanent establishment in, therein or being physically present in, otherwise having or having had some connection with the Relevant Taxing Jurisdiction) but excluding, in each caseas the case may be, any connection arising solely from other than the acquisition, holding or ownership or holding of such Notes or any guarantee of the Notes a Note or the enforcement collection of principal of and interest and premium, if any, on a Note or receipt (b) the presentation of a Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later, except to the extent that the Holder would have been entitled to such Additional Amounts if it had presented such Note for payment on any payment in respect thereofday within such period of 30 days;
(2b) any Taxes estate, inheritance, gift, sales, transfer, personal property or similar tax, duty, assessment or other governmental charge;
(c) present or future tax, duty, assessment or other governmental charge which is payable otherwise than by withholding or deduction from payments on (or in respect of) the Notes;
(d) present or future tax, duty, assessment or other governmental charge that would not have been so is imposed or levied if withheld by reason of the failure by the Holder or the beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that requesta request of the Company (i) to provide information concerning the nationality, residence, or identity of the Holder or such beneficial owner or (ii) to make a any declaration of nonresidence or any other similar claim or filing or to satisfy any certification, identification, information or reporting requirement for exemption fromrequirement, or reduction which in the rate ofcase of (i) or (ii), withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable law, treaty, regulation or official administrative practice law of the Relevant Taxing Jurisdiction as a precondition to exemption fromfrom all or part of such tax, duty, assessment or reduction in the rate of deduction or withholding of, any such Taxes)other governmental charge;
(3e) present or future tax, duty, assessment or other governmental charge required to be withheld or deducted by any Taxes that are payable otherwise than by withholding paying agent from a any payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for if such payment can be made without such withholding or deduction by presenting the Note to (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to), or otherwise accepting payment from, another Paying Agent;any other paying agent; or
(6f) combination of the items above.
(ii) Notwithstanding the foregoing, all payments shall be made net of any Taxes payable under deduction or withholding imposed or collected pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as of amended (the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with“Code”), any current or future regulations or official interpretations thereof, any agreements agreement entered into pursuant theretoto Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code (or any law implementing such an intergovernmental agreement) (any such withholding, a “FATCA Withholding Tax”), and no Additional Amounts will be payable as a result of any such FATCA Withholding Tax. No Additional Amounts be paid with respect to any payment of principal of, and any intergovernmental agreements implementing the foregoing (including premium or interest on, any legislation Note to any Holder who is a fiduciary, a partnership, a limited liability company or other official guidance relating to than the sole beneficial owner of such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice extent such payment would be required by the laws of the Relevant Taxing Jurisdiction to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary, a member of such payment is given to the Holders)partnership, except to the extent that the Holder an interest holder in a limited liability company or a beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner who would not have been entitled to payment of such Additional Amounts by reason had it been the Holder of such Note.
(iii) Wherever in the Indenture there is mentioned, in any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts evidencing context, the payment of principal of, and any Taxes so deducted premium or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. Ifinterest, notwithstanding the efforts of such non-U.S. Payor to obtain such receiptsif any on, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with or any other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts amount payable under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor mention 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts as described under this Section 2.13 provided for in the Indenture to the extent that, that in such context, Additional Amounts are, were or would could be payable in respect thereof. The non-U.S. Payors will pay In the event of the occurrence of any present transaction or future stampevent resulting in a successor to the Company, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any all references to the Relevant Taxing Jurisdiction from in this Supplemental Indenture shall be deemed to be references to the execution, delivery, issuance, initial resale, registration jurisdiction of organization or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer tax residence of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinentity.
Appears in 1 contract
Sources: First Supplemental Indenture (Bank of N.T. Butterfield & Son LTD)
Additional Amounts. After (a) All payments and deliveries made by, or on behalf of, the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor Company or any successor in interest to an Obligor of the Guarantors (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on ) under or with respect to the Notes Notes, including, but not limited to, payments of principal (including, if applicable, the Fundamental Change Repurchase Price and the Redemption Price), payments of interest and deliveries of Common Stock or any guarantee other Reference Property and/or payments of the Notes will cash, in each case, upon conversion, shall be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or governmental charges of whatever nature imposed or levied by a taxing authority within any jurisdiction (other than the United States of America or any state or other similar governmental charge political subdivision thereof) in which the Payor is, for tax purposes, organized or resident or doing business or through which payment is made or deemed made (collectivelyor, in each case, any political subdivision or taxing authority thereof or therein) (each, as applicable, a “TaxesRelevant Taxing Jurisdiction”) ), unless such withholding or deduction is required by law or by regulation or governmental policy having the interpretation of administration force of law. If In the event that any such withholding or deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if anyso required, the non-U.S. Payor will shall pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order to ensure that the net amounts amount received in respect of such payments by the Holder beneficial owner after such withholding or deduction (including any such deduction and after deducting or withholding from such any taxes on the Additional Amounts), will not be less than ) shall equal the amounts that would have been received in respect of by such payments on the Notes or the guarantees of the Notes in the absence of beneficial owner had no such withholding or deductiondeduction been required; provided, however, provided that no such Additional Amounts will shall be payable payable:
(i) for or on account of:
(1A) any Taxes tax, duty, assessment or other governmental charge that would not have been so imposed or levied but for for:
(1) the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor beneficial owner of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) Note and the Relevant Taxing Jurisdiction (including Jurisdiction, other than merely holding such Note or the receipt of payments thereunder, including, without limitation, such Holder or beneficial owner being or having been a citizen national, domiciliary or resident of such Relevant Taxing Jurisdiction or national of, treated as a resident thereof or carrying on being or having been physically present or engaged in a trade or business therein or maintaining having or having had a permanent establishment intherein;
(2) the presentation of such Note by the Holder (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of (including the Fundamental Change Repurchase Price and the Redemption Price, if applicable) and interest on, such Note or being physically present in, the Relevant Taxing Jurisdiction) but excludingdelivery of Common Stock and other Reference Property and/or payments of cash, in each case, any connection arising solely from the acquisition, ownership or holding upon conversion of such Notes Note became due and payable pursuant to the terms thereof or any guarantee was made or duly provided for; or
(3) the failure of the Notes Holder or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably beneficial owner to comply with that request) a timely request from the Payor to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make a any declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrelating to such matters, or reduction in if and to the rate of, withholding to which it is entitled (provided extent that due and timely compliance with such declaration of nonresidence or other claim, filing or requirement request is required by the applicable lawstatute, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction in order to reduce or eliminate any withholding or deduction as a precondition to exemption from, which Additional Amounts would have otherwise been payable to such Holder or reduction in the rate of deduction or withholding of, any such Taxes)beneficial owner;
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4B) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(5C) any Taxes imposed in connection tax, duty, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments under or with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able respect to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying AgentNotes;
(6D) any Taxes payable under Sections tax, assessment, withholding or deduction required by sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as of the date of the Offering Memorandum amended (or any amended or successor version that is substantively comparable and not materially more onerous to comply with“FATCA”), any current or future regulations Treasury Regulations or official interpretations thereofrulings promulgated thereunder, any agreements entered into pursuant theretolaw, and any intergovernmental agreements implementing the foregoing (including any legislation regulation or other official guidance relating 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 intergovernmental agreements); oragreement, or any agreement with the U.S. Internal Revenue Service under FATCA;
(7E) any combination of the above. Such Additional Amounts will also not tax, duty, assessment or other governmental charge required to be payable (x) withheld or deducted by any Paying Agent from any payment, if the such payment could have been made without such withholding or deduction by at least one other Paying Agent; or
(F) any combination of taxes referred to in the preceding clauses (A), (B), (C), (D) and (E), or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price and the Redemption Price, if applicable) and interest on, such Note or withholding the delivery of Common Stock or other Reference Property and/or payments of cash, in each case, upon conversion of such Note to a Holder, if the beneficiary Holder is a fiduciary, partnership or person other than the sole beneficial owner of the that payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that a beneficiary or settlor with respect to the Holder fiduciary, a partner or member of that partnership or a beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner who would not have been entitled to payment of such Additional Amounts by reason of any of clauses had that beneficiary, settlor, partner, member or beneficial owner been the Holder thereof.
(1b) to (7) inclusive above. The non-U.S. Payors will In the event that (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the a Relevant Taxing Jurisdiction determines that amounts should have been withheld or deducted in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts evidencing the payment respect of any Taxes so deducted payments or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts deliveries under or with respect to the Notes in excess of any payment made on amounts that were actually withheld or deducted by the Payor, and (ii) the Payor would have been required to pay Additional Amounts if such amounts had been withheld or deducted, then the Payor shall indemnify each beneficial owner of the Notes, at least 30 days prior on an after-tax basis, for any and all losses incurred as a result of its failure to make such withholdings and deductions and to pay Additional Amounts; provided that (i) only direct losses (and no consequential losses or damages) shall be recoverable pursuant to this Section 4.09(b), (ii) no indemnification shall be required pursuant to this Section 4.09(b) unless and until such beneficial owner has exhausted all reasonable remedies available to it to reduce or eliminate the amount of such losses, and (iii) as a condition of such indemnification such beneficial owner shall reasonably assist the Payor in any attempt the Payor may make to seek to secure a reduction or refund of any such amounts, which reduction or refund shall be for the account of the Payor to the date extent of any indemnification previously provided to such paymentbeneficial owner.
(c) If the Payor is required to make any deduction or withholding from any payments with respect to the Notes, the non-U.S. Payor will deliver to the Trustee an Officer’s Certificate stating official tax receipts evidencing 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 (unless such obligation to pay Additional Amounts arises less than 45 days prior remittance to the relevant payment datetax authorities of the amounts so withheld or deducted or other evidence reasonably satisfactory to the Trustee.
(d) Any reference in this Indenture or the Notes in any context to the delivery of Common Stock or other Reference Property and/or payments of cash, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indentureeach case, the Notes upon conversion of any Note or any guarantee of the Notes there is mention of, in any context:
(1) the payment of principal;
principal of (2including the Fundamental Change Repurchase Price and the Redemption Price, if applicable) redemption prices and interest on, any Note 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 Notes or any guarantee of the Notes; such reference Note, shall be deemed to include payment of Additional Amounts 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 pursuant to this Section 4.09.
(e) The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, obligations under this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will Section 4.09 shall survive any termination, defeasance or discharge of this Indenture the Indenture, any transfer by a holder or beneficial owner of its Notes, and will apply apply, mutatis mutandis mutandis, to any jurisdiction in which any successor to a non-U.S. the Payor is is, for tax purposes, organized or otherwise considered to be a resident for tax purposes or doing business or through which payment is made or deemed made (or, in each case, any political subdivision or taxing authority or agency thereof or therein).
Appears in 1 contract
Additional Amounts. After (a) All payments of principal of, premium, if any, and interest on the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments Notes made by a non-U.S. Payor on the Issuer or with respect the Guarantor pursuant to the Notes or any guarantee of the Notes will Guarantee, respectively, shall be made free and clear of and without withholding or deduction for, for or on account of, of any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectivelyincluding penalties, “Taxes”interest and other liabilities related thereto) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of Canada or of any jurisdiction (other than the United States province, territory or any political subdivision or governmental authority thereof or by any authority or agency therein or thereof having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) collectively, "Taxes" and (2each, a "Taxing Jurisdiction"), a “Relevant Taxing Jurisdiction”)unless the Issuer or the Guarantor, will at 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 the Guarantor is required to withhold or deduct any time be required amount for or on account of Taxes from any payments payment made under or with respect to the Notes or any guarantee of the NotesGuarantee, including payments of principal, redemption price, interest or premium, if anyrespectively, the non-U.S. Payor will pay (together with such payments) Issuer or the Guarantor, as the case may be, shall pay, or cause to be paid, such additional amounts (the “"Additional Amounts”") as may be necessary in order so that the net amounts amount received by each Holder (in respect of such payments by the Holder beneficial owner thereof) (including Additional Amounts) after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that amount such Holder would have received if such Taxes had not been received in respect of such payments on the Notes withheld or the guarantees of the Notes in the absence of such withholding or deductiondeducted; provided, however, that no such Additional Amounts will shall be payable for with respect to a payment made to a Holder or beneficial owner thereof or to a third party on account ofbehalf of a Holder or beneficial owner thereof (an "Excluded Holder") with respect to:
(1i) any Taxes that would Tax imposed on, or deducted or withheld from, payments in respect of the Notes to a Holder or beneficial owner (y) by reason of its being a Person with whom the Issuer, a partner of the Issuer or the Guarantor does not have been so imposed deal at arm's length for the purposes of the income tax laws of the Taxing Jurisdiction at the time of making such payment or levied but for (z) by reason of the existence of any present or former connection between the relevant such Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, partnermember, member shareholder or shareholder other equity owner of, or possessor of power over, the relevant Holdersuch Holder or beneficial owner, if such Holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company company, corporation or corporationother entity) and the Relevant Taxing Jurisdiction (including being a citizen including, without limitation, any Tax imposed on, or resident deducted or national withheld from, such Holder's or beneficial owner's net income) other than the mere holding, or receiving payments under, or enforcing any rights in respect of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4ii) any estate, inheritance, gift, sales, excise, transfer, stamp, excise or personal property Tax or any similar TaxesTax;
(5iii) any Taxes Tax imposed on, or deducted or withheld from, payments in connection with a Note presented for payment (where presentation is required for payment) by or on behalf respect of the Notes to a Holder or beneficial owner who would have been able as a result of the failure of such Holder or beneficial owner of Notes (y) to avoid duly and timely comply with any certification, identification, information, documentation, or similar reporting requirements concerning the nationality, residence, entitlement to treaty benefits, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner or (z) to duly and timely make a declaration, claim or filing for exemption from or reduction in the rate of such Tax, if such compliance or the making of such declaration, claim or filing is required by statute, treaty, regulation or administrative pronouncement or practice, as a precondition to exemption from or reduction in the rate of such Tax by presenting and if the relevant Note toIssuer or the Guarantor has provided such Holder or beneficial owner or its nominee with at least 30 days written notice of any opportunity to so comply or make such declaration, claim or otherwise accepting payment from, another Paying Agentfiling;
(6iv) any Taxes payable under Sections 1471 through 1474 Tax imposed on, or deducted or withheld from, payments in respect of the Code as of the date of the Offering Memorandum (Notes to a Holder or any amended beneficial owner which is a fiduciary or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing partnership (including any legislation entity or other official guidance relating arrangement treated as a partnership by the relevant Taxing Jurisdiction) or not the sole beneficial owner of such payments to the extent that any beneficiary or settler with respect to such intergovernmental agreements); orfiduciary, any partner or member of such partnership or any beneficial owner of such payments would not have been entitled to such Additional Amounts with respect to such payments had such beneficiary, settler, partner, member or beneficial owner received directly its beneficial or distributive share of such payments;
(7v) any combination Tax imposed on, or deducted or withheld from, payments in respect of the above. Such Additional Amounts will also not be payable (x) Notes to a Holder or beneficial owner if the payment such payments could have been made without such imposition, deduction or withholding if the beneficiary of the payment such Tax had such Notes been presented the Note for payment (where presentation is required) within 30 days after the relevant payment was date on which such payments or such Notes became due and first made available for payable or the date on which payment to the Holder thereof is duly provided for, whichever is later (provided that notice of such payment is given to the Holders), except to the extent that the such Holder or beneficial owner or other such Person would have been entitled to such Additional Amounts had such Notes been presented on presenting the Note for payment on any date during last day of such 30-day period or period); or
(yvi) where, had the beneficial owner any combination of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will items (i) through (v).
(b) The Issuer or the Guarantor, as the case may be, shall also (a) make or cause to be made any required such withholding or deduction and (iib) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. .
(c) The non-U.S. Payor will use reasonable efforts Issuer or the Guarantor, as the case may be, shall furnish the Holders, within 30 days after the date the payment of any Taxes is due pursuant to obtain applicable law, certified copies of tax receipts evidencing such payment by the Issuer or the Guarantor or, if certified copies of tax receipts are not reasonably available to the Issuer or the Guarantor, such other documentation evidencing such payment by the Issuer or the Guarantor that is reasonably satisfactory to the Trustee. The Issuer and the Guarantor shall, jointly and severally, indemnify each Holder (other than an Excluded Holder) for the amount of (x) any Taxes so deducted levied or withheld from each relevant taxing authority imposed and paid by such Holder as a result of each Relevant Taxing Jurisdiction imposing payments made under or with respect to the Notes or the Guarantee, (y) any cost or expense arising therefrom or with respect thereto, and (z) any Taxes so levied or imposed with respect to any reimbursement under the foregoing clauses (x) and (y) but excluding any such Taxes on such Holder's net income so that the net amount received by such Holder after such reimbursement will not be less than the net amount the Holder would have received if Taxes (excluding any such Taxes on such Holder's net income) on such reimbursement had not been imposed ((x), (y) and will provide such certified copies (z) collectively, a "Reimbursement Payment").
(d) At least 30 days prior to each date on which any payment under or with respect to the Trustee Notes is due and payable, if the Holders. If, notwithstanding Issuer or the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor Guarantor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor Issuer or the Guarantor, as applicable, will deliver to the Trustee an Officer’s Officers' Certificate stating the fact that such Additional Amounts will be payable and the amount amounts so payable and will set forth such other information necessary to enable the Paying Agent Trustee to pay such Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever Whenever in this Indenture, the Notes or any guarantee of the Notes Indenture there is mention ofmentioned, in any context:
(1) , the payment of principal;
(2) redemption prices , premium, if any, interest or purchase prices in connection with a redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on under or with respect to any of the Notes or any guarantee of the Notes; Note, such reference mention shall be deemed to include mention of the payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Norbord Inc.)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor or on behalf of the Company or any Guarantor under or with respect to the Notes Securities or any guarantee of the Notes Guarantee will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxtaxes, dutyduties, levylevies, impostimposts, assessment assessments or other similar governmental charge charges of whatever nature (including any penalties, interest and other liabilities related thereto) imposed, assessed or levied by or on behalf of any Taxing Authority (collectively, “"Taxes”) "), unless such withholding the Company or deduction any Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation of or administration of lawthereof. If the Company or any deduction Guarantor is so required to withhold or withholding for, deduct any amount for or on account of, of any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments payment made under or with respect to the Notes Securities or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if anyGuarantee, the non-U.S. Payor Company or such Guarantor, as the case may be, will pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order so that the net amounts amount (including Additional Amounts) received in respect by each Holder and beneficial owner of such payments by the Holder Securities after such withholding or deduction (including any such withholding or deduction or withholding from such in respect of Additional Amounts), ) will not be less than the amounts that amount such Holder or beneficial owner would have received if such Taxes had not been received in respect of such payments on the Notes withheld or the guarantees of the Notes in the absence of such withholding or deductiondeducted; provided, however, PROVIDED that no such Additional Amounts will be payable for or on account of:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes a payment made to a Holder or any guarantee beneficial owner of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property Securities or similar Taxes;
(5) any Taxes imposed in connection with to a Note presented for payment (where presentation is required for payment) by or third party on - 128 - behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable Securities if and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto following exceptions apply (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture if and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.such extent, an "Excluded Holder"):
Appears in 1 contract
Sources: Exhibit (Brooks Pharmacy, Inc.)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor the Company on or with respect to the Notes (whether or any guarantee not in the form of the Notes Definitive Notes) will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “"Taxes”") imposed or levied by or on behalf of the ▇▇▇▇▇▇ ▇▇▇▇▇▇, The Kingdom of Sweden or any jurisdiction in which the Company or any Successor Company (as defined in the Indenture) is organized or is otherwise resident for tax purposes or any political subdivision thereof or any authority having power to tax therein or any jurisdiction from or through which payment is made (each a "Relevant Taxing Jurisdiction"), unless such the withholding or deduction of Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will Jurisdiction shall at any time be required from on any payments made by the Company with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption priceRedemption Price, Liquidated Damages, interest or premium, if any, the non-U.S. Payor Company will pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts)deduction, will not be less than equal the respective amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, except that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present Holder or former beneficial owner having some connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and with the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than by the acquisition, ownership or mere holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof;
(2) any Taxes that would not have been so are imposed or levied if withheld by reason of the failure of the Holder or beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) a request of the Company addressed to the Holder to provide information concerning the nationality, residence or identity of such Holder or beneficial owner or to make a any declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or reporting requirement for exemption fromrequirement, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation regulation, protocol, or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from all or reduction in the rate part of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to except in the Notes or any guarantee case of the Notes;
(4) winding up of the Company, any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Company's actions presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes not been so presented);
(4) 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);
(5) any Note where withholding taxes or any other deductions are imposed on a payment to an individual and are required to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such directive; or
(6) any Note presented for payment) payment by or on behalf of a Holder or beneficial owner holder of the Notes who would have been able to avoid such Tax withholding taxes or any other deductions by presenting the relevant Note to, or otherwise accepting payment from, to another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 Agent in a member state of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the aboveEuropean Union. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (74) inclusive inclusive, above. The non-U.S. Payors Upon request, the Company will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted provide the full amount deducted or withheld Trustee with documentation satisfactory to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and documentation will provide such certified copies be made available to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinupon request.
Appears in 1 contract
Sources: Indenture (Preem Holdings Ab Publ)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor the Company on or with respect to the Notes (whether or any guarantee not in the form of the Notes Definitive Notes) will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “"Taxes”") imposed or levied by or on behalf of the United States, The Kingdom of Sweden or any jurisdiction in which the Company or any Successor Company (as defined in the Indenture) is organized or is otherwise resident for tax purposes or any political subdivision thereof or any authority having power to tax therein or any jurisdiction from or through which payment is made (each a "Relevant Taxing Jurisdiction"), unless such the withholding or deduction of Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will Jurisdiction shall at any time be required from on any payments made by the Company with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption priceRedemption Price, interest or premium, if any, the non-U.S. Payor Company will pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts)deduction, will not be less than equal the respective amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, except that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present Holder or former beneficial owner having some connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and with the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than by the acquisition, ownership or mere holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof;
(2) any Taxes that would not have been so are imposed or levied if withheld by reason of the failure of the Holder or beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) a request of the Company addressed to the Holder to provide information concerning the nationality, residence or identity of such Holder or beneficial owner or to make a any declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or reporting requirement for exemption fromrequirement, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation regulation, protocol, or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from all or reduction in the rate part of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to except in the Notes or any guarantee case of the Notes;
(4) winding up of the Company, any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Company's actions presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes not been so presented);
(4) 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); or
(5) any Note where withholding taxes or any other deductions are imposed on a payment to an individual and are required to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such directive; or
(6) any Note presented for payment) payment by or on behalf of a Holder or beneficial owner holder of the Notes who would have been able to avoid such Tax withholding taxes or any other deductions by presenting the relevant Note to, or otherwise accepting payment from, to another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 Agent in a member state of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the aboveEuropean Union. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (74) inclusive inclusive, above. The non-U.S. Payors Upon request, the Company will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted provide the full amount deducted or withheld Trustee with documentation satisfactory to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and documentation will provide such certified copies be made available to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinupon request.
Appears in 1 contract
Sources: Indenture (Preem Holdings Ab Publ)
Additional Amounts. After At least 10 days prior to the occurrence first ------------------ date on which payment of a Non-U.S. Domicile Transaction with respect principal, premium, if any, or interest on the Notes is to be made, and at least 10 days prior to any Obligor or subsequent such date if there has been any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or change with respect to the Notes matters set forth in the Officers' Certificate described in this Section 4.20, the Company will furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers' Certificate instructing the Trustee and the Paying Agent whether such payment of principal, premium, if any, or any guarantee of interest on the Notes will (whether or not in the form of Definitive Notes) shall be made to the Holders without withholding or deduction for, for or on account of, of any present or future tax, duty, levy, impost, assessment or other similar governmental charge charges of whatever nature (collectivelycollectively "Taxes") imposed or levied by or on ----- behalf of The Federal Republic of Germany or any jurisdiction in which the Company or any Successor Company is organized or is otherwise resident for tax purposes or any political subdivision thereof or any authority having power to tax therein or any jurisdiction from or through which payment is made (each a "Relevant Taxing Jurisdiction"), “Taxes”) unless such the withholding or deduction of such ---------------------------- Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will shall at any time be required from on any payments made by the Company with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, then such Officers' Certificate shall specify the amount, if any, required to be withheld on such payments to such Holders and the non-U.S. Payor Company will pay (together with such payments) such to the Trustee or the Paying Agent the additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees pursuant to paragraph 3 of the Notes in (the absence of such withholding or deduction; provided, however, that no such "Additional Amounts will be payable for or on account of:
(1Amounts") any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holderand, if such Holder is an estatepaid to a Paying Agent other than ------------------ the Trustee, nominee, trust, partnership, limited liability company or corporation) and shall provide the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied Trustee with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect documentation satisfactory to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority such Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies documentation shall be made available to the Holders upon request. The Company shall indemnify the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes their part arising out of or any guarantee of the Notes there is mention of, in any context:
(1) the payment of principal;
(2) redemption prices or purchase prices in connection with a redemption actions taken or purchase of Notes;
(3) interest; or
(4) any other amount payable on or with respect to omitted by any of the Notes or them in reliance on any guarantee of the Notes; such reference shall be deemed Officers' Certificate furnished to include payment of Additional Amounts as described under them pursuant to this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein4.20.
Appears in 1 contract
Sources: Indenture (Cybernet Internet Services International Inc)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor the Company on or with respect to the Notes (whether or any guarantee not in the form of the Notes Definitive Notes) will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “"Taxes”") unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of (1) any jurisdiction (other than Luxembourg, the United States States, Ireland or any political subdivision or governmental authority of any thereof or therein having power to tax, (2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payormade, or any political subdivision or governmental authority thereof or therein having the power to tax; or
tax or (23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. the Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1), (2) and (23), a “"Relevant Taxing Jurisdiction”"), will unless the withholding or deduction of Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption priceRedemption Price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; providedPROVIDED, howeverHOWEVER, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any payments to a Holder or beneficial owner who is liable for such Taxes that would not have been so imposed in respect of such Note by reason of the Holder's or levied but for the existence of beneficial owner's having any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and with the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than by the acquisition, ownership or mere holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof;
(2) any Taxes that would not have been so are imposed or levied if withheld where such withholding or imposition is by reason of the failure of the Holder or beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) any reasonable and timely request by the Payor to provide information concerning the nationality, residence or identity of such Holder or beneficial owner or to make a any declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrelating to such matters, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation regulation, protocol, or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from all or reduction part of such Taxes;
(3) except in the rate case of deduction or withholding ofthe winding up of the Payor, any such TaxesNote presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor's actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);
(34) 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 during such 30 day period);
(5) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on or with respect to the Notes or any guarantee of the Notes;
(46) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(57) a Tax imposed on a payment to an individual and required to be made pursuant to any Taxes European Union Directive (a "Directive") on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(8) a Tax imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, to another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 paying agent in a member state of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the aboveEuropean Union. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) 8) inclusive above. The non-U.S. Payors Upon request, the Company will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted provide the full amount deducted or withheld Trustee with documentation satisfactory to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and documentation will provide such certified copies be made available to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinupon request.
Appears in 1 contract
Additional Amounts. After At least 10 days prior to the occurrence first date on which payment of a Non-U.S. Domicile Transaction with respect principal, premium, if any, or interest on the Notes is to be made, and at least 10 days prior to any Obligor or subsequent such date if there has been any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or change with respect to the Notes matters set forth in the Officers' Certificate described in this Section 4.20, the Company will furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers' Certificate instructing the Trustee and the Paying Agent whether such payment of principal, premium, if any, or any guarantee of interest on the Notes will (whether or not in the form of Definitive Notes) shall be made to the Holders without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge charges of whatever nature (collectivelycollectively "Taxes") imposed or levied by or on behalf of The Netherlands or any jurisdiction in which the Company or any Surviving Entity is organized or is otherwise resident for tax purposes or any political subdivision thereof or any authority having power to tax therein or any jurisdiction from or through which payment is made (each a "Relevant Taxing Jurisdiction"), “Taxes”) unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of or administration of lawthereof. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will shall at any time be required from on any payments made by the Company with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, then such Officers' Certificate shall specify the amount, if any, required to be withheld on such payments to such Holders and the non-U.S. Payor Company will pay (together with such payments) such to the Trustee or the Paying Agent the additional amounts pursuant to paragraph 3 of the Initial Notes and paragraph 2 of the Exchange Notes, as applicable (the “"Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation") and upon request shall provide the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied Trustee with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect documentation satisfactory to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority such Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies documentation shall be made available to the Holders upon request. The Company shall indemnify the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 for, and hold them harmless against, any loss, liability or expense Incurred without negligence or bad faith on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes their part arising out of or any guarantee of the Notes there is mention of, in any context:
(1) the payment of principal;
(2) redemption prices or purchase prices in connection with a redemption actions taken or purchase of Notes;
(3) interest; or
(4) any other amount payable on or with respect to omitted by any of the Notes or them in reliance on any guarantee of the Notes; such reference shall be deemed Officers' Certificate furnished to include payment of Additional Amounts as described under them pursuant to this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein4.20.
Appears in 1 contract
Additional Amounts. After (a) All payments made in cash by, or on behalf of, the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor Company or any successor in interest to an Obligor (each such Obligor or successorSuccessor Company, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on under or with respect to the Notes Notes, of principal (including, if applicable, the Optional Redemption Price, the Tax Redemption Price and the Fundamental Change Repurchase Price) and interest (including any Additional Interest), but excluding payments in cash in lieu of delivery of ADSs as set forth in Section 14.13 and deliveries of ADSs (or the Ordinary Shares represented thereby) or other Reference Property or any guarantee other consideration due upon conversion (together with payments of cash for any fractional ADS) (such non-excluded payments, the Notes will “Relevant Payments”), 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 similar governmental charge (including penalties and interest related thereto) (collectively, “Taxes”) unless such the withholding or deduction of such Taxes is then required by law or regulation or by government policy having the interpretation of administration force of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of (1) any jurisdiction in which the Company (other than the United States or any Successor Company) is organized, resident or doing business for Tax purposes or any department or political subdivision or governmental authority thereof or therein having power to taxor (2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, the Company (or any Successor Company) or the Paying Agent or any department or political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States each jurisdiction, department or any political subdivision or governmental authority thereof or therein having described in the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of foregoing clauses (1) and (2), a “Relevant Taxing Tax Jurisdiction”), ) will at any time be required to be made from any payments such Relevant Payments made under or with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will Company shall pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments Relevant Payments by the each Holder after such withholding or deduction (including any such deduction or withholding from such in respect of Additional Amounts), ) will not be less than equal the respective amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes Relevant Payments in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will shall be payable for or on account ofwith respect to:
(1i) any Taxes that Tax, to the extent such Tax would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder or the beneficial owner of the Notes (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant HolderHolder or beneficial owner, if such the relevant Holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company or corporation) and the applicable Relevant Taxing Tax Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, other than any connection arising solely from the acquisition, ownership ownership, holding or holding of such Notes or any guarantee disposition of the Notes or Notes, the enforcement or of rights under the Notes and/or the receipt of any payment payments or deliveries in respect thereofof the Notes);
(2ii) any Taxes that Tax, to the extent such Tax would not have been so imposed or levied if but for the failure of the Holder of or the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably beneficial owner to comply with that request) a timely request from the Company or any Successor Company, addressed to the Holder, to provide certification, information, documents or other evidence concerning such ▇▇▇▇▇▇’s or beneficial owner’s nationality, residence, identity or connection with the relevant jurisdiction, or to make a any declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrelating to such matters, or reduction in if and to the rate of, withholding to which it is entitled (provided extent that due and timely compliance with such declaration of nonresidence or other claim, filing or requirement request is required by the applicable law, treatystatute, regulation or official administrative practice of the a Relevant Taxing Tax Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any Taxes imposed by the Relevant Tax Jurisdiction, but in each case, only to the extent the Holder or the beneficial owner of the Notes is legally eligible to provide such Taxes)certification or documentation;
(3iii) any Taxes that are payable otherwise than by withholding from a payment on or with respect Tax, to the Notes or any guarantee extent such Tax is imposed as a result of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within more than 30 days after the relevant payment was due and is first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the such Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting had the Note for been presented on the last day of such 30 day period);
(iv) any estate, inheritance, gift, sale, transfer, excise, wealth, personal property or similar Tax;
(v) any Taxes payable otherwise than by deduction or withholding from the Relevant Payments (or Additional Amounts payable in respect thereof); or
(vi) any combination of the above items.
(b) The Company shall not pay any Additional Amounts with respect of any payment on of cash or delivery of ADSs, Ordinary Shares or other Reference Property to any date during such 30-day period Holder if the Holder is a fiduciary, partnership or (y) where, had Person other than the sole beneficial owner of that payment to the Note been extent that such payment or delivery would under the Holder laws of the Noteapplicable Relevant Tax Jurisdiction, such for Tax purposes, be required to be included in the income of a beneficiary or settlor with respect to the fiduciary, a partner or member of that partnership or a beneficial owner owner, in each case, who would not have been entitled to payment of such Additional Amounts had that beneficiary, settlor, partner, member or beneficial owner been the Holder thereof. Any amounts to be paid on the Notes shall be paid net of any deduction or withholding imposed or required pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), any amended or successor versions of such Code Sections, any current or future official interpretations thereof or regulations promulgated thereunder (“FATCA”), any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, any law, regulation or other official guidance enacted or published in any jurisdiction implementing FATCA or an intergovernmental agreement with respect thereto, or any agreement with the U.S. Internal Revenue Service under FATCA (including any agreement described in Code Section 1471(b)), and the Company shall not be required to pay Additional Amounts on account of any FATCA withholding Tax. In addition to the foregoing, the Company shall also pay and indemnify the Holder of a Note for any present or future stamp, stamp duty, stamp duty reserve tax, issue, registration, transfer, court or documentary taxes, or any other excise or property taxes, charges or similar levies (including penalties and interest related thereto) that are levied by reason any Relevant Tax Jurisdiction on the execution, delivery, issuance, or registration of any of clauses the Notes, the ADSs (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority Ordinary Shares represented thereby upon conversion of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts Notes), this Indenture or any other document or instrument referred to obtain certified copies of tax receipts evidencing therein, or the payment receipt of any Taxes so deducted payments with respect to, or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receiptsenforcement of, the same are not obtainableNotes (other than, such non-U.S. Payor will provide in each case, in connection with a transfer of Notes after the Trustee and initial sale by the Holders with Company of the Notes or the delivery of ADSs in a name other reasonable evidencethan the name of the converting Holder). If any non-U.S. Payor the Company becomes aware that it will be obligated to pay or deliver Additional Amounts with respect to any payment or delivery under or with respect to any payment made on the Notes, the Company will deliver to the Trustee on a date that is at least 30 days prior to the date of such paymentthat payment or delivery (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the non-U.S. Payor Company will deliver to notify the Trustee an Officer’s Certificate promptly thereafter) notice stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and such payable. Such notice must also set forth any other information reasonably necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior date. The Company will provide the Trustee with documentation reasonably satisfactory to the relevant Trustee evidencing the payment dateof Additional Amounts, in which case the non-U.S. Payor shall deliver such including an Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary, upon which the Trustee may conclusively rely.
(c) The Company shall timely make all withholdings and deductions required by law and shall remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. Wherever in this Indenture, The Company shall furnish to the Notes Trustee (or any guarantee to a Holder of the Notes upon 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 Company, as appropriate, or if receipts are not reasonably available, other evidence of payment reasonably satisfactory to the Trustee.
(d) Whenever in this Indenture there is mention ofmentioned, in any context:
(1) the , payment of amounts based upon the principal amount of the Notes or of principal;
(2) redemption prices , interest, the Optional Redemption Price, the Tax Redemption Price, the Fundamental Change Repurchase Price, or purchase prices in connection with a redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on in cash under, or with respect to to, any of the Notes or (other than payments in cash in lieu of delivery of ADSs as set forth in Section 14.13 and payments of cash for any guarantee of the Notes; fractional ADS as set forth in Section 14.02) such reference mention shall be deemed to include the payment of Additional Amounts 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. .
(e) The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, obligations under this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will Section 4.10 shall survive any termination, defeasance termination or discharge of this the Indenture and will apply shall apply, mutatis mutandis mutandis, to any jurisdiction in which any successor Person to a non-U.S. Payor the Company is organized organized, resident or otherwise considered to be a resident doing business for tax Tax purposes or any jurisdiction from or through which such Person or its paying agent makes any payment on the Notes and, in each case, any department or political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Immunocore Holdings PLC)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. the Payor on or with respect to the Notes or any guarantee of the Notes Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of (1) any jurisdiction (other than in which the United States Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes Guarantees is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposesmade, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1) and (2), a “Relevant Taxing Jurisdiction”), will 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 of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or any guarantee of the NotesGuarantees, including including, without limitation, payments of principal, redemption priceRedemption Price, interest or premium, if any, the non-U.S. Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any Taxes that would not have been so imposed or levied but by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or Beneficial Owner who is liable for such Taxes in respect of the existence Notes by reason of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partnermember, member partner or shareholder of, or possessor of power over, over the relevant Holder, if such the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the or Beneficial Owner having any present or former connection with such Relevant Taxing Jurisdiction (including including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the such Relevant Taxing Jurisdiction) but excluding, in each case, any other than a connection arising solely from the acquisition, ownership or holding of such Notes Note or any guarantee enforcement of rights thereunder or the receipt of payments in respect of the Notes or the enforcement or receipt of with respect to any payment in respect thereofGuarantee;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note or Beneficial Owner had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence non-residence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that (x) such declaration of nonresidence non-residence or other claim, claim or filing or requirement for exemption is required by the applicable law, treaty, regulation or official administrative practice law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption fromfrom the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or reduction Beneficial Owner at that time has been notified in writing by the rate Payor or any other person through whom payment may be made that a declaration of deduction non-residence or withholding of, any such Taxesother claim or filing for exemption is required to be made);
(3) except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);
(4) any Note presented for payment (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 during such 30 day period);
(5) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to the Notes or any guarantee of the NotesGuarantee;
(46) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(57) any Taxes a Tax imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner Beneficial Owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting accept payment from, another Paying Agentpaying agent in a member state of the European Union;
(6) 8) any Taxes payable under imposed, deducted or withheld pursuant to Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code Code, in each case, as of the date of the Offering Memorandum Issue Date (or and any amended or successor version that is substantively comparable and not materially more onerous to comply withcomparable), ; any current or future regulations or agreements thereunder, official interpretations thereofthereof or any law implementing an intergovernmental agreement relating thereto; or any treaty, any agreements entered into pursuant theretolaw, and any intergovernmental agreements implementing the foregoing (including any legislation regulation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, enacted in any context:
(1) the payment of principalother jurisdiction, facilitating implementation thereof;
(29) redemption prices or purchase prices in connection with a redemption or purchase of Notesall United States backup withholding taxes;
(3) interest; or
(4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Smurfit WestRock PLC)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments made by the Issuer, a non-U.S. Payor Successor Company or a Guarantor (a “Payor”) on or with respect to the Notes or any guarantee of the Notes Note Guarantees will be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) Taxes unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the Grand Duchy of Luxembourg, the United States Kingdom or any political subdivision or governmental authority Governmental Authority thereof or therein having power to tax;
(2) any jurisdiction from or through which payment on the Notes any such Note or any guarantee of the Notes Note Guarantee is made by the Issuer, Successor Company, Guarantor or on behalf of a non-U.S. Payortheir agents, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax; or
(23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. the Payor that actually makes a payment on the Notes is incorporated or its guarantee of the Notes is organized organized, engaged in business for tax purposes or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax (each of clauses (1), (2) and (23), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes any Note or any guarantee of the NotesNote Guarantee, including payments of principal, redemption price, interest or premium, if any, or interest, the non-U.S. Payor will shall pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that which would have been received in respect of such payments on the Notes any such Note or the guarantees of the Notes Note Guarantee in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, over the relevant Holder, if such the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including including, but not limited to, being a citizen or resident or national or domiciliary of, or carrying on the existence of a business, a permanent establishment, a dependent agent, a place of business or maintaining a permanent establishment in, place of management present or being physically deemed present in, in the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes Note or any guarantee enforcement of the Notes rights hereunder or under a Note Guarantee or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so are imposed or levied if withheld by reason of the failure by the Holder or the beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) a written request of the Payor addressed to the Holder, after reasonable notice, to provide certification, information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of the Holder or such beneficial owners or to make a any declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrelating to such matters, or reduction in the rate of, withholding to which it is entitled (provided each case that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treatyregulation, regulation treaty or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from all or reduction part of such Tax; provided that in each case the rate of deduction Holder or withholding of, any such Taxes)beneficial owner is legally eligible to do so;
(3) any Taxes that are payable otherwise than by deduction or withholding from a payment on or with respect to the Notes or any guarantee of the NotesNote Guarantee;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying AgentAgent in the United Kingdom or any member state of the European Union;
(6) any Taxes payable under imposed on or with respect to a payment to a Holder that is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment or Note, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note;
(7) any Taxes imposed pursuant to or in connection with Sections 1471 through 1474 of the Code as of Code, the date of the Offering Memorandum (United States Treasury Regulations thereunder or any amended similar law or successor version that is substantively comparable regulations adopted pursuant to an intergovernmental agreement between a non‑U.S. jurisdiction and not materially more onerous the United States with respect to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements)foregoing; or
(7) 8) any combination of the above. Such .
(b) Additional Amounts will also not be payable (x) if to the extent the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is requiredrequired for payment) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders)Holder, except for Additional Amounts with respect to the extent Taxes that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting imposed had the Holder presented the Note for payment on any date during within such 30-30 day period or (y) where, had the beneficial owner of the Note been the Holder, except for Additional Amounts with respect to Taxes that would have been imposed had the Holder of presented the NoteNote for payment within such 30-day period, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) 8) inclusive above. , but only if there is no material cost or legal restriction associated with transferring the Note to such beneficial owner.
(c) The non-U.S. Payors will Payor shall (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will shall 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes Taxes, in such form as provided in the ordinary course by the Relevant Taxing Jurisdiction and will as is reasonably available to the Company, and shall provide such certified copies to the Trustee Trustee. Such copies shall be made available to the Holders upon request and shall be made available at the Holdersoffices of the Paying Agent. If, notwithstanding The Payor shall attach to each certified copy a certificate stating (x) that the efforts 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 non-U.S. Payor to obtain such receipts, withholding Taxes paid per £1,000 principal amount of the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. Notes.
(d) If any non-U.S. Payor will becomes aware that it shall be obligated to pay Additional Amounts under or with respect to any payment made on the Notesany Note or Note Guarantee, at least 30 days prior to the date of such payment, the non-U.S. Payor will shall 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 relevant payment date (unless such obligation to pay Additional Amounts arises arises, or the Payor becomes aware of such obligation, less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall may deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate without further inquiry, as conclusive proof that such payments are necessary. .
(e) Wherever in this Indenture, Indenture or the Notes or any guarantee of the Notes Note Guarantees there is mention ofare mentioned, in any context:
(1) the payment of principal;
(2) purchase or redemption prices or purchase prices in connection with a purchase or redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; , such reference shall be deemed to include payment of Additional Amounts as described under pursuant to this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(f) The non-U.S. Payors will Payor shall pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture Indenture, the Proceeds Loan Agreement, the Intercreditor Agreements, the other Security Documents or any other document or instrument in relation thereto (other than a transfer or exchange of the Notes). ) excluding any such Taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction.
(g) The foregoing obligations of this Section 2.13 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor the Issuer or any Guarantor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Encore Capital Group Inc)
Additional Amounts. After The Company will pay the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or with respect to the Notes or any guarantee holder of the Notes will be made without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) unless Securities such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “"Additional Amounts”") or deliver additional Ordinary Shares, as the case may be, as may be necessary in order that the every net amounts received payment of a Payable Amount, together with accrued and unpaid interest, if any, in respect of such payments any Security by the Holder Company, after such withholding or deduction (including any such deduction or withholding from for or on account of any present or future tax, assessment or other governmental charge imposed upon or as a result of such Additional Amounts)payment by the Cayman Islands, Hong Kong or the People's Republic of China or any political subdivision or taxing authority thereof or therein ("Taxes") will not be less than the amounts that would have been received amount provided for in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deductionSecurity to be then due and payable; provided, however, that no such Additional Amounts will be payable for or on account of:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less will not apply with respect to any Security presented for payment by, or on behalf of, a holder who is liable to such taxes or duties in respect of such Security by reason of his having some connection with the Cayman Islands, Hong Kong or the People's Republic of China or any political subdivision or any authority thereof or therein, other than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver mere holding of such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date)Security. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever Whenever in this Indenture, the Notes or any guarantee of the Notes Indenture there is mention ofmentioned, in any context:
(1) , the payment of principal;
(2) redemption prices any Payable Amount, in respect of, or purchase prices in connection with a redemption or purchase of Notes;
(3) interest; or
(4) interest on, any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; Security, such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under provided for in this Section 2.13 to the extent that, in such context, Additional Amounts additional amounts are, were or would be payable in respect thereof. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise thereof pursuant to the provisions of this Section and express mention of the payment of Additional Amounts (if applicable) in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument provisions hereof shall not be construed as excluding Additional Amounts in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor those provisions hereto where such express mention is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinnot made.
Appears in 1 contract
Sources: Indenture (Netease Com Inc)
Additional Amounts. After (a) All payments of principal, premium or interest by the occurrence of a Non-U.S. Domicile Transaction with Bank in respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or with respect to the Notes or any guarantee of the Notes will be made without withholding or deduction for, for or on account of, of any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, including any interest or penalties related thereto) (“Taxes”) unless such withholding imposed, levied, collected, withheld or deduction is required assessed by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States Argentina or any political subdivision other jurisdiction in which the Bank is organized, resident or governmental authority thereof doing business for tax purposes or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made payments by or on behalf of a non-U.S. Payor, the Bank are made or any political subdivision or governmental authority thereof or taxing authority therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2)each, a “Relevant Taxing Jurisdictionrelevant taxing jurisdiction”), will at unless the Bank is compelled by law to deduct or withhold such Taxes. In any time be required from any payments made with respect such event, subject to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if anyexceptions listed below, the non-U.S. Payor Bank will pay (together with such payments) such additional amounts (the “Additional Amounts”) in respect of Taxes as may be necessary in order to ensure that the net amounts received in respect by holders or beneficial owners of such payments by the Holder Notes after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the respective amounts that would have been received receivable in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such . No Additional Amounts will be payable for or on account ofpayable:
(1i) any when such Taxes that would not have been so imposed or levied but for the existence fact that the holder or beneficial owner of any Notes has a present or former former, direct or indirect, connection between with the relevant Holder taxing jurisdiction (or between a fiduciaryincluding, settlorwithout limitation, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, in the Relevant Taxing Jurisdictionrelevant taxing jurisdiction) but excluding, in each case, any connection arising solely from other than the acquisition, ownership or mere holding of such Notes or any guarantee of and the Notes or the enforcement or receipt of any payment payments in respect thereof or enforcement of rights in respect thereof;
(2ii) any when such Taxes that would not have been so imposed or levied if but for the Holder failure of the Note had complied with a reasonable request in writing holder or beneficial owner of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably Notes to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any reasonable certification, identification, information or reporting requirement for exemption fromrequirements regarding the nationality, residence, identity or reduction in connection with the rate ofrelevant taxing jurisdiction of such holder or beneficial owner, withholding to which it is entitled as required by the Bank at least thirty (provided that 30) days before the applicable Interest Payment Date or principal payment date, as applicable, if such declaration of nonresidence or other claim, filing or requirement compliance is required by the applicable law, treaty, regulation laws or official administrative practice regulations of the Relevant Taxing Jurisdiction relevant taxing jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes; provided that any certification, identification, information or other reporting requirement would not be materially more onerous, in form, procedure or substance, than comparable information or other reporting requirements imposed under U.S. tax law, regulation and administrative practice (such as IRS Forms W-8BEN, W-8BEN-E and W-9);
(3iii) any Taxes that are payable otherwise than by withholding from to or on behalf of a payment on holder or with beneficial owner of Notes in respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, value added, sales, use, excise, transfer, personal property or similar Taxestaxes, duties, assessments or other governmental charges;
(5iv) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by to or on behalf of a Holder holder or beneficial owner who of Notes in respect of Taxes payable other than by withholding from payment of principal of, premium, if any, or interest on the Notes;
(v) in respect of Taxes imposed by reason of the fact that Notes were presented for payment more than thirty (30) days after the later of the date on which such payment became due and the date on which payment thereof has been duly provided for and notice of such payment is given to the holders, except to the extent that the holder of such Notes would have been able entitled to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying AgentAdditional Amounts had such Notes been presented on any day during such 30-day period;
(6vi) in respect of any Taxes payable imposed under Sections 1471 through 1474 of the Internal Revenue Code of 1986, as of the date of the Offering Memorandum amended (or any amended or successor version of such Sections that is substantively comparable and not materially more onerous to comply with) (“FATCA”), any current or future regulations or official interpretations thereofother guidance thereunder, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing agreement (including any legislation intergovernmental agreement) entered into in connection therewith, or any law, regulation or other official guidance relating to such enacted in any jurisdiction implementing FATCA or an intergovernmental agreements)agreement in respect of FATCA; or
(7vii) for any combination of the items (i) through (vi) above. Such ; nor shall Additional Amounts will also not be payable (x) if the paid with respect to any payment could have been made without such deduction or withholding if the beneficiary of the payment had presented principal of, or any premium, if any, or interest on, any Notes to any holder or beneficial owner of Notes who is a fiduciary or partnership or other pass-through entity or other than the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for sole beneficial owner of such payment to the Holder (provided that notice extent such payment would be required by the laws of the relevant taxing jurisdiction to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such payment is given to the Holders), except to the extent that the Holder partnership or other pass-through entity or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner who would not have been entitled to such Additional Amounts had it been the holder of such Notes.
(b) The Bank shall furnish to holders or beneficial owners of the Notes, the documentation evidencing payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount Taxes deducted or withheld to from payment on the relevant taxing authority Notes.
(c) In the event that the Bank pays any personal property tax in respect of the Relevant Taxing Jurisdiction Notes, in accordance with applicable lawArgentine Law 23,966, as may be amended or modified, the Bank hereby waives any right it may have under Argentine law to seek reimbursement (whether by deduction from payments of principal or interest on such Notes or otherwise) from the holder or beneficial owner of the Notes of any such amounts paid.
(d) All references in the Indenture to principal, premium or interest payable hereunder shall be deemed to include references to any Additional Amounts payable under this Section 4.2 with respect to such principal, premium or interest. The non-U.S. Payor Bank will use reasonable efforts to obtain certified copies of tax receipts provide the Trustee with documentation evidencing the payment of any Taxes so amounts deducted or withheld from each relevant taxing authority in accordance with this Section 4.2 promptly upon the Bank’s payment thereof, and copies of each Relevant Taxing Jurisdiction imposing such Taxes and documentation will provide such certified copies to be made available by the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, in any context:holders upon request.
(1e) 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors Bank will pay promptly when due any present or future stamp, court or documentary Taxes, taxes or any other exciseexcise or property taxes, property charges or similar Taxes levies that arise in any Relevant Taxing Jurisdiction jurisdiction from the execution, delivery, issuance, initial resale, delivery or registration or enforcement of any Notes, this Indenture each Note or any other document or instrument referred to herein or therein, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside of Argentina except those resulting from, or required to be paid in relation thereto (other than a transfer connection with, the enforcement of the Notes). The foregoing obligations will survive Notes after the occurrence and during the continuance of any termination, defeasance or discharge Event of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinDefault.
Appears in 1 contract
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments made by a non-U.S. Payor or on behalf of either Issuer under or with respect to the Notes or any guarantee of the Notes will be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectivelyincluding penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than of the United States government of the Republic of ▇▇▇▇▇▇▇▇ Islands or any political subdivision or governmental any authority or agency therein or thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes either Issuer (including any successor entity) is organized or is otherwise considered to be a resident for tax purposes, or any political subdivision jurisdiction from or governmental authority thereof or therein having through which payment is made (including, without limitation, the power to tax jurisdiction of each Paying Agent) (each of clauses (1) and (2), a “Relevant Taxing Specified Tax Jurisdiction”), will at any time be required to be made from any payments made under or with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor such Issuer will pay (together with such payments) such additional amounts (or the “Additional Amounts”) as may be necessary in order so that the net amounts amount received in respect of such payments by the a Holder (including Additional Amounts) after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that amount such Holder would have received if such Taxes had not been received in respect of such payments on the Notes withheld or the guarantees of the Notes in the absence of such withholding or deductiondeducted; provided, however, that no such the foregoing obligation to pay Additional Amounts will be payable for or on account ofdoes not apply to:
(1) any Taxes that would not have been so imposed or levied but for the existence Holder or beneficial owner of the Notes having any present or former connection between with the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Specified Tax Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, other than the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the mere acquisition, ownership or holding of such Notes or any guarantee of the Notes or the ownership, holding, enforcement or receipt of any payment in respect thereofof the Notes);
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge;
(3) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes;
(4) any Taxes imposed as a result of the failure of the Holder or beneficial owner of the Notes, to the extent it is legally entitled to do so, to complete, execute and deliver to the Partnership any form or document to the extent applicable to such Holder or beneficial owner that may be required by law or by reason of administration of such law and which is reasonably requested in writing to be delivered to the Partnership in order to enable the Issuers to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a lesser amount, which form or document will be delivered within 60 days of a written request therefor by the Partnership;
(5) any Taxes that would not have been so imposed in connection with but for the beneficiary of the payment having presented a Note presented for payment (where in cases in which presentation is required for paymentrequired) by more than 30 days after the date on which such payment or such Note became due and payable or the date on behalf of a which payment thereof is duly provided for, whichever is later (except to the extent that the Holder or beneficial owner who would have been able entitled to avoid Additional Amounts had the Note been presented on the last day of such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent30-day period);
(6) any Taxes payable under Sections 1471 through 1474 of imposed on or with respect to any payment by the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment Issuers to the Holder (provided that notice if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment is given to the Holders)payment, except to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the Holder or beneficial owner or other of such Person payment would not have been entitled to Additional Amounts on presenting the Note for payment on any date during had such 30-day period beneficiary, settlor, member or (y) where, had the beneficial owner of the Note been the actual Holder of the such Note;
(7) any Taxes that are required to be deducted or withheld on a payment pursuant to European Council Directive 2003/48/EC or any law implementing, or introduced in order to conform to, such beneficial owner would not have been entitled to payment directive; or
(8) any combination of Additional Amounts by reason of any of clauses items (1) to through (7) inclusive above. The non-U.S. Payors will .
(ib) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor either Issuer becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to any payment made on the Notes, the Partnership will deliver to the Trustee and Paying Agent at least 30 days prior to the date of such paymentthat payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the non-U.S. Payor Partnership will deliver notify the Trustee and Paying Agent promptly thereafter but in no event later than two Business Days prior to the Trustee date of payment) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount so payable and such payable. The Officer’s Certificate must also set forth any other information necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall and Paying Agent will be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever The Partnership will provide the Trustee and Paying Agent with documentation evidencing the payment of Additional Amounts.
(c) Each Issuer will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant governmental authority on a timely basis in this Indentureaccordance with applicable law. As soon as practicable, the Notes or any guarantee Partnership will provide the Trustee and Paying Agent with an official receipt or, if official receipts are not obtainable, other documentation evidencing the payment of the Notes Taxes so withheld or deducted. Upon request, copies of those receipts or other documentation, as the case may be, will be made available by the Trustee and Paying Agent to the Holders of the Notes.
(d) Whenever in the Indenture there is mention ofreferenced, in any context:
(1) , the payment of amounts based upon the principal amount of the Notes or of principal;
(2) redemption prices , interest or purchase prices in connection with a redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on under, or with respect to any of the Notes or any guarantee of to, the Notes; , such reference shall will be deemed to include payment of Additional Amounts as described under this Section 2.13 heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) Each Issuer will indemnify a Holder, within 10 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder to a governmental authority of a Specified Tax Jurisdiction, on or with respect to any payment by on or account of any obligation of such Issuer to withhold or deduct an amount on account of Taxes for which such Issuer would have been obliged to pay Additional Amounts hereunder and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant governmental authority. The non-U.S. Payors A certificate as to the amount of such payment or liability delivered to the Partnership by a Holder will be conclusive absent manifest error.
(f) Each Issuer will pay any present or future stamp, court, issue, registration, value added, court or documentary Taxes, taxes or any other exciseexcise or property taxes, property charges or similar Taxes levies that arise in any Relevant Taxing Specified Tax Jurisdiction from the execution, delivery, issuance, initial resale, enforcement or registration or enforcement of any the Notes, this the Indenture or any other document or instrument in relation thereto (other than a transfer thereof, or the receipt of any payments with respect to the Notes, other than, for the avoidance of doubt, any Transfer Taxes (each such tax, a “Note Issuance Tax”). The foregoing obligations , and such Issuer will survive indemnify the Holders for any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinsuch Note Issuance Taxes paid by such Holders.
Appears in 1 contract
Sources: First Supplemental Indenture (Dynagas Finance Inc.)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments made by a non-U.S. Payor or on behalf of the Issuer under or with respect to the Notes (whether or not in the form of definitive notes) or any guarantee of the Notes Guarantors, in each case, solely under or with respect to a Guarantee will be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) Taxes unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of any jurisdiction (other than in which the United States Issuer or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes Guarantor, is made by or on behalf of a non-U.S. Payorthen incorporated, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) organized, engaged in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized business for tax purposes or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax or any jurisdiction from or through which payment is made, excluding the United States and any political subdivision or taxing authorities thereof or therein (each of clauses (1) and (2)each, a “Relevant Taxing 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 guarantee of the NotesGuarantors with respect to any Guarantee, including including, without limitation, payments of principal, redemption price, purchase price, interest or premium, if anythe Issuer or the relevant Guarantor, the non-U.S. Payor as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder (including payments of Additional Amounts) after such withholding withholding, or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the respective amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
with respect to: (1) any Taxes that would not have been so imposed or levied but for the existence holder or beneficial owner of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including Notes being a citizen or citizen, resident or national of, incorporated in or carrying on a business or maintaining a permanent establishment inin the relevant Tax Jurisdiction in which such Taxes are imposed, or being physically having any other present in, or former connection with the Relevant Taxing Jurisdiction) but excluding, relevant Tax Jurisdiction in each case, any connection arising solely from which such Taxes are imposed other than by the acquisition, ownership mere acquisition or holding of such Notes or any guarantee of the Notes note or the enforcement or receipt of any payment under or in respect thereof;
of any note or any Guarantee; (2) any Taxes that would not have been so imposed or levied if the Holder withheld as a result of the Note had complied with a reasonable request in writing failure of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably holder or beneficial owner of the Notes to comply with any written request, made to that request) holder or beneficial owner in writing at least 90 days before any such withholding or deduction would be payable, 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 a any valid or timely declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, certification information or other reporting requirement for exemption from, or reduction in requirements (to the rate of, withholding to which it is entitled (provided that extent such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);99 EU-DOCS\26039728.6
(3b) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder holder of the Note, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (78) inclusive of Section 4.16 (a).
(c) inclusive above. The non-U.S. Payors Issuer and/or the Guarantor, as applicable, will pay and indemnify the holders or the beneficial owners of any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies (i) make or cause to be made any required withholding or deduction including interest and (ii) remit or cause to be remitted the full amount deducted or withheld penalties to the relevant taxing authority extent resulting from a failure by the Issuer and/or the Guarantor, as applicable, to timely pay amounts due) which arise in any jurisdiction from the execution, delivery or registration of any Notes or any other document or instrument referred to therein (other than a transfer of the Notes other than to or by to the Initial Purchasers (as defined in the Offering Memorandum)), or the receipt of any payments with respect to the Notes, excluding any such taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction or any jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts which a Paying Agent is located, other than those resulting from, or required to obtain certified copies be paid in connection with, the enforcement of tax receipts evidencing the payment Notes, the Notes Collateral or any other such document or instrument following the occurrence of any Taxes so deducted or withheld from each relevant taxing authority Event of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies Default with respect to the Trustee and Notes.
(d) If the Holders. IfIssuer or any Guarantor, notwithstanding as the efforts of such non-U.S. Payor to obtain such receiptscase may be, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor 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 payment made Guarantee, the Issuer or the relevant Guarantor, as the case may be, will deliver to the trustee on the Notes, a date at least 30 days prior to the date of such paymentpayment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the non-U.S. Payor will deliver to Issuer or the Trustee relevant Guarantor shall notify the trustee promptly thereafter) an Officer’s Certificate officers’ certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and such payable. The officers’ certificate must also set forth any other information reasonably necessary to enable the Paying Agent paying agent to pay Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee trustee shall be entitled to rely solely on such Officer’s Certificate officers’ certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, The Issuer or the Notes or any guarantee of the Notes there is mention of, in any context:relevant Guarantor 100 EU-DOCS\26039728.6
(1e) 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 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 principal;any Taxes so deducted or withheld. The Issuer or the relevant Guarantor will furnish to the holders, within 60 days after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuer or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments by such entity.
(2f) redemption prices or purchase prices in connection with a redemption or purchase Whenever this Indenture mentions the payment of Notes;
(3) interest; or
(4) amounts based on the principal amount, interest of any other amount payable on under, or with respect to to, any of the Notes or any guarantee of the Notes; Guarantee, such reference mention shall be deemed to include the payment of Additional Amounts 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. (g) The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise obligations contained in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations Section 4.16 will survive any termination, defeasance or discharge of this Indenture Indenture, any transfer by a holder or beneficial owner of its notes, and will apply apply, mutatis mutandis mutandis, to any jurisdiction in which any successor Person to a non-U.S. Payor the Issuer or any Guarantor is organized then incorporated, organized, engaged in business or otherwise considered to be a resident for tax purposes or any jurisdiction from or through which any payment under, or with respect to, the Notes (or any Guarantee) is made and any political subdivision or taxing authority or agency thereof or thereintherein having the power to tax.
Appears in 1 contract
Sources: Indenture (Sothebys)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments made by a non-U.S. Payor on the Issuer under or with respect to the Notes (whether or not in the form of Definitive Notes) or by the Company or any guarantee of Subsidiary Guarantor under or with respect to the Notes Guarantees will be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge of whatever nature imposed or levied, including penalties, interest and other liabilities related thereto (collectively, “Taxes”) unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of any jurisdiction in which the Issuer, the Company or any Subsidiary Guarantor (other than the United States including any Successor Issuer, Successor Company or a resulting, surviving or transferee Person to a Subsidiary Guarantor), is then incorporated, carrying on a business (directly or indirectly), resident for tax purposes or generally subject to tax on a net income basis or any political subdivision or governmental authority thereof or therein having power to tax) from or any jurisdiction by or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2)each, a “Relevant Taxing Tax Jurisdiction”), will at any time be required to be made from any payments made by the Issuer under or with respect to the Notes or by the Company or any guarantee of Subsidiary Guarantor under or with respect to the NotesNotes Guarantees, including payments of principal, redemption price, purchase price, interest or premium, if anythe Issuer, the non-U.S. Payor Company or such Subsidiary Guarantor (as the case may be) will pay (together with such payments) such additional amounts (the “Additional Amountsadditional amounts”) as may be necessary in order that the net amounts received in respect of such payments by each holder and beneficial owner of the Holder Notes (including additional amounts) after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the respective amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts additional amounts will not be payable for to a holder or on account ofbeneficial owner of a Note with respect to:
(1) any Taxes that which would not have been so imposed or levied but for the existence of any present or former connection between such holder or the beneficial owner of such Note and the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Tax Jurisdiction (including being a citizen or citizen, resident or national of, incorporated in, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing relevant Tax Jurisdiction) but excludingin which such Taxes are imposed, in each case, any connection arising solely from other than the acquisition, ownership mere receipt of such payment or holding of such Note, enforcement of, or exercise of rights under, such Note, the Notes Guarantees or this Indenture or any guarantee of the Notes or the enforcement or receipt of any payment in other connection with respect thereofto such Note;
(2) any Taxes that would not have been so are imposed or levied if the Holder withheld as a result of the failure of such holder or beneficial owner of such Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that any written request, made to such holder or beneficial owner in writing at least 90 days before any such withholding or deduction would be payable, by the Issuer (i) to provide timely or accurate information concerning the nationality, residence or identity of such Holder or beneficial owner or (ii) to make a any valid or timely declaration of nonresidence or any other similar claim for exemption to which such Holder or filing beneficial owner is legally entitled or satisfy any certificationcertification requirement which such holder or beneficial owner is legally able to satisfy, identification, information or reporting requirement for exemption from, or reduction which in the rate ofcase of clause (i) or (ii), withholding to which it is entitled (provided that such declaration of nonresidence or other claimas applicable, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation or official administrative practice of the Relevant Taxing relevant Tax Jurisdiction as a precondition to exemption from, from all or reduction in the rate part of deduction or withholding of, any such Taxes);
(3) any Taxes that Note presented for payment (where Notes are payable otherwise in the form of Definitive Notes and presentation is required) more than by withholding from a 30 days after the relevant payment on or with respect is first made available for payment to the Notes or any guarantee 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 the Notessuch 30 day period);
(4) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxestax or assessment;
(5) any Taxes withheld, deducted or imposed on a payment to an individual and which are required to be made pursuant to European Union 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 connection with a order to conform to, such Directive;
(6) any Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax withholding or deduction by presenting the relevant Note to, or otherwise accepting payment from, to another Paying Agent;
(6) paying agent in any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version country that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements)a Member State; or
(7) any combination of items (1) through (6) above.
(b) In addition to the above. Such Additional Amounts foregoing, additional amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the a Note had been the Holder of the Note, such Note and such beneficial owner would not have been be entitled to the payment of Additional Amounts additional amounts by reason reasons of items (1) through (7) above. Further, additional amounts will not be payable with respect to any Tax which is payable other than by withholding from payments under or with respect to the Notes or the Notes Guarantees.
(c) In addition to the foregoing, the Issuer will also pay and indemnify the Holders and beneficial owners of the Notes for any present or future stamp, issue, registration, transfer, court or documentary taxes, or any other excise or property taxes, charges or similar levies or Taxes which are levied by any jurisdiction in respect of or in connection with the execution, delivery, issue, redemption, retirement, enforcement or registration of any of clauses the Notes, this Indenture or the Notes Guarantees, or any other document or instrument referred to therein, or the receipt of any payments under or with respect to the Notes or the Notes Guarantees.
(1d) If the Issuer becomes aware that the Issuer, the Company or any Subsidiary Guarantor will be obligated to pay additional amounts with respect to any payment under or with respect to the Notes or the Notes Guarantees, the Issuer will deliver to the Trustee on a date which is at least 30 days prior to the date of that payment (7unless the obligation to pay additional amounts arises after the 30th day prior to that payment date, in which case the Issuer shall notify the Trustee promptly thereafter) inclusive abovean Officer’s Certificate stating the fact that additional amounts will be payable and the amount estimated to be so payable. The non-U.S. Payors Officer’s Certificate must also set forth any other information reasonably necessary to enable the Paying Agent to pay additional amounts to Holders on the relevant payment date. The Issuer will provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of additional amounts.
(ie) The Issuer, the Company or the relevant Subsidiary Guarantor will make or cause to be made any all withholdings and deductions required withholding or deduction by law and (ii) will remit or cause to be remitted the full amount deducted or withheld to the relevant taxing Tax authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor Issuer, the Company or the relevant Subsidiary Guarantor will use its reasonable efforts to obtain certified copies of tax Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Issuer will furnish to the Trustee, within 60 days after the date the payment of any Taxes so deducted or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such is made, certified copies to of Tax receipts evidencing payment by the Trustee and Issuer, the Holders. IfCompany or the relevant Subsidiary Guarantor or if, notwithstanding the Issuer’s, the Company’s or such Subsidiary Guarantor’s efforts of such non-U.S. Payor to obtain such receipts, the same receipts are not obtainableobtained, other evidence of payments by such non-U.S. Payor will provide entity. The Issuer shall attach to each certified copy or other evidence, as applicable, a certificate stating (x) that the Trustee and amount of Tax evidenced by the Holders certified copy was paid in connection with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts payments under or with respect to any payment made on the Notes then outstanding upon which such Taxes were due and (y) the amount of such withholding tax paid per €1,000 of principal amount of the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date .
(unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever f) Whenever in this Indenture, the Notes or any guarantee of the Notes Indenture there is mention ofmentioned, in any context:
(1) , the payment of amounts based upon the principal amount of the Notes or of principal;
(2) redemption prices , interest or purchase prices in connection with a redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on under, or with respect to to, any of the Notes or any guarantee of the Notes; Notes Guarantees, such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under this Section 2.13 additional amounts to the extent that, in such context, Additional Amounts additional amounts are, were or would be payable in respect thereof. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto .
(other than a transfer of the Notes). g) The foregoing obligations will relating to additional amounts shall survive any termination, defeasance or discharge of this Indenture and will shall apply mutatis mutandis to any jurisdiction in which Tax Jurisdiction with respect to any successor Successor Issuer, Successor Company or a resulting, surviving or transferee Person to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinSubsidiary Guarantor.
Appears in 1 contract
Sources: Indenture (Quiksilver Inc)
Additional Amounts. After Unless otherwise specified in any Board Resolution establishing the occurrence terms of Subordinated Debt Securities of a Non-U.S. Domicile Transaction series in accordance with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”)Section 3.01, all payments made by a non-U.S. Payor amounts of principal, and premium, if any, and interest, if any, on or with respect to the Notes or any guarantee series of the Notes Subordinated Debt Securities will be made without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) unless such withholding or deduction is required by law or paid by the interpretation of administration of law. If any Company without deduction or withholding for, or on account of, any Taxes imposed and all present and future income, stamp and other taxes, levies, imposts, duties, charges, fees, deductions or levied withholdings now or hereafter imposed, levied, collected, withheld or assessed by or on behalf of:
(1) any jurisdiction (other than of the United States Kingdom or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2the "Taxing Jurisdiction"), a “Relevant Taxing Jurisdiction”)unless such deduction or withholding is required by law. If deduction or withholding of any such taxes, will levies, imposts, duties, charges, fees, deductions or withholdings shall at any time be required from any payments made with by the Taxing Jurisdiction, the Company will pay such additional amounts of, or in respect to of, the Notes or any guarantee of the Notesprincipal amount of, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay and interest, if any, on any series of Subordinated Debt Securities (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order that the net amounts received paid to the Holders of Subordinated Debt Securities of the particular series, after such deduction or withholding, shall equal the respective amounts of principal, premium, if any, and interest, if any, which would have been payable in respect of such payments by the Holder after such withholding or deduction (including any Subordinated Debt Securities had no such deduction or withholding from such Additional Amounts), will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deductionrequired; provided, however, that no the foregoing will not apply to any such Additional Amounts will be payable for tax, levy, impost, duty, charge, fee, deduction or on account of:
(1) any Taxes that withholding which would not have been so imposed payable or levied due but for the existence fact that:
(i) the Holder or the beneficial owner of any present the Subordinated Debt Security is a domiciliary, national or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder resident of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a engaging in business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excludingJurisdiction or otherwise has some connection with the Taxing Jurisdiction other than the holding or ownership of a Subordinated Debt Security, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt collection of any payment of (or in respect thereof;of) principal of, premium, if any, or interest, if any, on any Subordinated Debt Security of the relevant series,
(2ii) any Taxes except in the case of a winding-up of the Company in the United Kingdom, the relevant Subordinated Debt Security is presented (where presentation is required) for payment in the United Kingdom,
(iii) the relevant Subordinated Debt Security is presented (where presentation is required) for payment more than 30 days after the date payment became due or was provided for, whichever is later, except to the extent that the Holder would not have been so imposed or levied if entitled to such Additional Amount on presenting (where presentation is required) the same for payment at the close of such 30 day period, or
(iv) the Holder or the beneficial owner of the Note had complied with a reasonable request relevant Subordinated Debt Security or the beneficial owner of any payment of (or in writing of the non-U.S. Payor (respect of) principal of, or interest, if any, on such request being made at a time that would enable such Holder acting reasonably Subordinated Debt Security failed to comply with that requesta request of the Company or its liquidator or other authorized person addressed to the Holder (x) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (y) to make a any declaration of nonresidence or any other similar claim or filing or to satisfy any certificationinformation requirement, identification, information or reporting requirement for exemption from, or reduction which in the rate ofcase of (x) or (y), withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption fromfrom all or part of such tax, assessment or reduction in the rate of deduction or withholding of, any such Taxes)other governmental charge;
(3v) any Taxes that are payable otherwise than by the withholding from or deduction is imposed on a payment to or for the benefit of an individual and is required to be made pursuant to any European Union Directive on or with respect to the Notes taxation of savings implementing the proposal for a European Union Directive presented by the European Union Commission on July 18, 2001 or any guarantee of the Noteslaw implementing or complying with, or introduced in order to conform to, such directive;
(4vi) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note the relevant Subordinated Debt Security is presented for payment (where presentation is required required) for payment) payment by or on behalf of a Holder or beneficial owner holder who would have been able to avoid such Tax withholding or deduction by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due Subordinated Debt Security to another paying agent in a Member State of the European Union; or
(vii) any combination of subclauses (i) through (vi) above; nor shall Additional Amounts be paid with respect to the principal of, and first made available for interest on, the Subordinated Debt Securities to any holder who is a fiduciary or partnership or settlor with respect to such fiduciary or a member of such partnership other than the sole beneficial owner of such payment to the Holder (provided that notice extent such payment would be required by the laws of any Taxing Jurisdiction to be included in the income for tax purposes of a beneficiary or partner or settlor with respect to such fiduciary or a member of such payment is given to the Holders), except to the extent that the Holder partnership or a beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner who would not have been entitled to payment of such Additional Amounts by reason of any of clauses (1) to (7) inclusive aboveAmounts, had it been the holder. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever Whenever in this Indenture, the Notes or any guarantee of the Notes Subordinated Debt Securities Indenture there is mention ofmentioned, in any context:
(1) , the payment of principal;
the principal of (2and premium, if any) redemption prices or purchase prices interest, if any, on, or in connection with a redemption or purchase respect of, any Subordinated Debt Security of Notes;
(3) interest; or
(4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; series such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under provided for in this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise thereof pursuant to the provisions of this Section and as if express mention of the payment of Additional Amounts (if applicable) were made in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor provisions hereof where such express mention is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinnot made.
Appears in 1 contract
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. the Payor on or with respect to the Notes or any guarantee of the Notes Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of (1) any jurisdiction (other than in which the United States Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes Guarantees is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposesmade, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1) and (2), a “Relevant Taxing Jurisdiction”), will 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 of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or any guarantee of the NotesGuarantees, including including, without limitation, payments of principal, redemption priceRedemption Price, interest or premium, if any, the non-U.S. Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any Taxes that would not have been so imposed or levied but by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or Beneficial Owner who is liable for such Taxes in respect of the existence Notes by reason of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partnermember, member partner or shareholder of, or possessor of power over, over the relevant Holder, if such the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the or Beneficial Owner having any present or former connection with such Relevant Taxing Jurisdiction (including including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the such Relevant Taxing Jurisdiction) but excluding, in each case, any other than a connection arising solely from the acquisition, ownership or holding of such Notes Note or any guarantee enforcement of rights thereunder or the receipt of payments in respect of the Notes or the enforcement or receipt of with respect to any payment in respect thereofGuarantee;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note or Beneficial Owner had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence non-residence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that (x) such declaration of nonresidence non-residence or other claim, claim or filing or requirement for exemption is required by the applicable law, treaty, regulation or official administrative practice law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption fromfrom the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or reduction Beneficial Owner at that time has been notified in writing by the rate Payor or any other person through whom payment may be made that a declaration of deduction non-residence or withholding of, any such Taxesother claim or filing for exemption is required to be made);
(3) except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);
(4) any Note presented for payment (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 during such 30 day period);
(5) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to the Notes or any guarantee of the NotesGuarantee;
(46) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(57) any Taxes a Tax imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner Beneficial Owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting accept payment from, another Paying Agentpaying agent in a member state of the European Union;
(6) 8) any Taxes payable under imposed, deducted or withheld pursuant to Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code Code, in each case, as of the date of the Offering Memorandum Issue Date (or and any amended or successor version that is substantively comparable and not materially more onerous to comply withcomparable), any current or future regulations or agreements thereunder, official interpretations thereofthereof or any law implementing an intergovernmental agreement relating thereto or any treaty, any agreements entered into pursuant theretolaw, and any intergovernmental agreements implementing the foregoing (including any legislation regulation or other official guidance relating enacted in any other jurisdiction, facilitating implementation thereof;
(9) all United States backup withholding taxes;
(10) any Tax deducted, withheld or imposed in connection with the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021), as amended from time to such intergovernmental agreements)time; or
(711) any combination of the clauses (1) through (10) above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner Beneficial Owner of the Note been the Holder of the Note, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (711) inclusive above. The non-U.S. Payors Upon request, the Issuer will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted provide the full amount deducted or withheld Trustee with documentation satisfactory to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and documentation will provide such certified copies be made available to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinupon request.
Appears in 1 contract
Sources: Indenture (Smurfit Westrock PLC)
Additional Amounts. After All payments made by the occurrence Company, any Note Guarantor or a successor of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor the foregoing (each such Obligor or successoreach, a “non-U.S. Payor”)) under, all payments made by a non-U.S. Payor on or with respect to to, the Notes or any guarantee of the Notes relevant Note Guarantee will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future tax, duty, levy, impost, assessment or other similar governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) unless such withholding imposed, levied, collected or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied assessed by or on behalf of:
of (1) any jurisdiction (other than the United States Kingdom or any political subdivision or governmental authority thereof or therein having power to tax, (2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes relevant Note Guarantee is made by or on behalf of a non-U.S. Payor, the Company or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposesNote Guarantor, or any political subdivision or governmental authority thereof or therein having the power to tax or (3) any other jurisdiction in which a Payor is organized or resident, or any political or governmental authority thereof or therein having the power to tax (each of clauses clause (1), (2) and (23), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law or the interpretation or administration thereof. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction will at any time be required from any payments made with respect to the Notes or any guarantee of the Notesrelevant Note Guarantee, including payments of principal, redemption price, interest or premium, if any, redemption price or interest, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder each Holder, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, partnermember, member partner or shareholder of, or possessor of power over, the relevant HolderHolder or beneficial owner, if such the relevant Holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company company, partnership or corporation) and the Relevant Taxing Jurisdiction (including being a citizen other than the mere receipt of such payment or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof);
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar Taxestax, assessment or governmental charge;
(3) any Taxes payable otherwise than by deduction or withholding from payments on or in respect of any Note or Note Guarantee;
(4) any Taxes which would not have been imposed, payable or due if the Notes are held in definitive registered form (“Definitive Registered Notes”) and the presentation (where presentation is required) of Definitive Registered Notes for payment had occurred within 30 days after the date such payment was due and payable or was provided for, whichever is later, except for Additional Amounts with respect to Taxes that would have been imposed had the Holder presented the Note for payment within such 30-day period;
(5) any Taxes that are imposed in connection with a Note presented for payment (where presentation is required for payment) or withheld by or on behalf reason of a the failure of the Holder or beneficial owner who would have been able of a Note to avoid comply, at the Company’s reasonable request, with certification, identification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of the Holder or such Tax beneficial owner or to make, at the Company’s reasonable request, any other claim or filing for exemption to which it is entitled if such compliance, making a claim or filing for exemption is required or imposed by presenting a statute, treaty or regulation or administrative practice of the relevant Note to, taxing jurisdiction as a precondition to exemption from all or otherwise accepting payment from, another Paying Agentpart of such Taxes;
(6) any Taxes payable under Sections 1471 through 1474 withholding or deduction imposed on a payment to an individual and required to be made pursuant to EC Council Directive 2003/48/EC on the taxation of savings income which was adopted by the ECOFIN Council (the Council of EU Finance and Economic Ministers) on June 3, 2003, or any law implementing or complying with, or introduced to conform to, such directive, or pursuant to related measures entered into on a reciprocal basis between member states of the Code as European Union and certain non-European Union countries and dependent or associated territories;
(7) any Taxes which could have been avoided by the presentation (where presentation is required) of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous relevant Note to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements)another Paying Agent in a EU Country; or
(7) 8) any combination of the above. Such Additional Amounts will also not be payable with respect to any payment of principal of (xor premium, if any, on) if or interest on such Note or Note Guarantee to any Holder who is a fiduciary or partnership or any person other than the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice sole beneficial owner of such payment is given to the Holders)payment, except to the extent that the Holder a beneficiary or beneficial owner settlor with respect to such fiduciary, a member of such a partnership or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner payment would not have been entitled to payment of the Additional Amounts by reason had such beneficiary, settlor, member or beneficial owner been the actual Holder of any of clauses such Note. The Payor will (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii2) remit or cause to be remitted the full amount deducted or withheld to the relevant applicable taxing authority of in the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes and upon request will provide such certified copies to the Trustee Trustee. The Payor will attach to each certified copy a certificate stating (x) that the amount of withholding Taxes evidenced by the certified copy was paid in connection with payments in respect of the principal amount of Notes then outstanding and (y) the Holders. If, notwithstanding the efforts amount of such non-U.S. Payor to obtain withholding Taxes paid per U.S.$ principal amount of the Notes. Copies of such receipts, documentation will be available for inspection during ordinary business hours at the same are not obtainable, such non-U.S. Payor will provide office of the Trustee and by the Holders with other reasonable evidenceof the Notes upon request and will be made available at the offices of the Paying Agent located in Luxembourg if the Notes are then admitted to trading on the Euro MTF market of the Luxembourg Stock Exchange. If any non-U.S. the Payor will be obligated to pay Additional Amounts with respect to any payment under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor will deliver to the Trustee Trustee, at least five days prior to the relevant payment date, an Officer’s Certificate stating the fact that such Additional Amounts will be payable and payable, the amount amounts so payable and will set forth such other information necessary to enable the Paying Agent Trustee to pay such Additional Amounts to Holders of Notes on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver . Each such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such relied upon by the Trustee without further enquiry until receipt of a further Officer’s Certificate as conclusive proof that addressing such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts as described under this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofmatters. The non-U.S. Payors Payor will pay any present or future stamp, court or documentary Taxesissue, or any other registration, documentary, value added, excise, property or other similar Taxes that arise taxes and other duties (including interest and penalties) payable in any Relevant Taxing Jurisdiction from respect of the executioncreation, deliveryissue, issuanceoffering, initial resale, registration execution or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer performance of the Notes), or any documentation with respect thereto or the receipt of any payments with respect to the Notes. The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein. Whenever in this Indenture or in this description there is mentioned, in any context, (1) the payment of principal, premium, if any, or interest, (2) redemption prices or purchase prices in connection with the redemption or purchase of Notes or (3) any other amount payable under or with respect to any Note 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.
Appears in 1 contract
Sources: Indenture (Global Crossing LTD)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments made by a non-U.S. Payor on the Company or any Subsidiary Guarantor under or with respect to the Notes or any guarantee of the Notes Subsidiary Guarantee will be made free and clear of and without withholding or deduction for, for or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of any Canadian Taxing Authority (1) any jurisdiction (other than hereinafter "Taxes"), unless the United States Company or any political subdivision Subsidiary Guarantor is required to withhold or governmental authority thereof deduct Taxes by law or therein having power to tax) from by the interpretation or through which payment on administration thereof. If the Notes Company or any guarantee Subsidiary Guarantor is so required to withhold or deduct any amount of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
(1) any of Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on under or with respect to the Notes or any guarantee Subsidiary Guarantee, the Company or such Subsidiary Guarantor, as the case may be, will pay such additional amounts of interest ("Additional Amounts") as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction will not be less than the amount the Holder would have received if such Taxes had not been 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 Notes;
Income Tax Act (4Canada)) at the time of making such payment, (ii) which is subject to such Taxes by reason of any estateconnection between such Holder and Canada or any province or territory thereof other than the mere holding of Notes or the receipt of payments thereunder, inheritance(iii) which failed to duly and timely comply with a timely request of the Company to provide information, giftdocuments, salescertification or other evidence concerning such Holder's nationality, exciseresidence, transferentitlement to treaty benefits, personal property identity or similar Taxes;
(5) any Taxes imposed in connection with Canada or any political subdivision or authority thereof, if and to the extent that due and timely compliance with such request would have resulted in the reduction or elimination of any taxes as to which Additional Amounts would have otherwise been payable to such Holder of Notes but for this clause (iii), (iv) which is a Note presented for fiduciary, a partnership or not the beneficial owner of any payment (where presentation is required for payment) by or on behalf a Note, if and to the extent that, as a result of a Holder an applicable tax treaty, no Additional Amounts would have been payable had the beneficiary, partner or beneficial owner who would have been able owned the Note directly (but only if there is no material cost or expense associated with transferring such Note to avoid such Tax by presenting beneficiary, partner or beneficial owner and no restriction on such transfer that is outside the relevant Note tocontrol of such beneficiary, partner or beneficial owner), or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7v) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary foregoing numbered clauses of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive abovethis proviso. The non-U.S. Payors will Company or such Subsidiary Guarantor, as the case may be, shall also (i) make or cause to be made any required such withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts Company or such Subsidiary Guarantor, as the case may be, shall furnish to obtain the Holders of the Notes, 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 payment Company or such Subsidiary Guarantor, as the case may be. The Company or such Subsidiary Guarantor, as the case may be, will indemnify and hold harmless each Holder (other than all Excluded Holders) for the amount of (i) any Taxes so not withheld or deducted by the Company or withheld from each relevant taxing authority such Subsidiary Guarantor and levied or imposed and paid by such Holder as a result of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies payments made under or with respect to the Trustee Notes or the Subsidiary Guarantees, (ii) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, and (iii) any Taxes imposed with respect to any reimbursement under clauses (i) or (ii) above.
(b) At least 30 days prior to each date on which any payment under or with respect to the Holders. IfNotes is due and payable, notwithstanding if the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If Company or any non-U.S. Payor Subsidiary Guarantor is aware that it will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor Company will deliver to the Trustee an Officer’s Officers' Certificate stating the fact that such Additional Amounts will be payable and payable, the amount amounts so payable and will set forth such other information necessary to enable the Paying Agent Trustee to pay such Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever Whenever in this Indenture, the Notes or any guarantee of the Notes Indenture there is mention ofmentioned, in any context:
(1) , the payment of principal;
principal (2) redemption prices and premium, if any), interest or purchase prices in connection with a redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on under or with respect to any of the Notes or any guarantee of the Notes; Note, such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under provided for in this Section 2.13 4.16 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Russel Metals Inc)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments and deliveries made by a non-U.S. Payor on or the Company with respect to the Notes or any guarantee Notes, including, but not limited to, payments of principal (including, if applicable, the Notes will Redemption Price and the Fundamental Change Repurchase Price), payments of Special Interest, if any, and payments of cash and/or deliveries of Ordinary Shares (together with payments of cash in lieu of fractional Ordinary Shares) upon conversion, shall be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levyassessments or governmental charges of whatever nature imposed, impostlevied, assessment collected, withheld or other similar governmental charge (collectively, “Taxes”) unless such withholding assessed by or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding forwithin Israel, or on account of, any Taxes imposed other jurisdiction in which the Company is or levied by is deemed to be organized or on behalf of:
(1) any jurisdiction (other than the United States resident for tax purposes or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes payments or any guarantee of the Notes is made deliveries by or on behalf of a non-U.S. Payor, the Company with respect to the Notes are made or deemed made or by or within any political subdivision or governmental authority thereof or any taxing authority therein or thereof having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2)each, a “Relevant Taxing Jurisdiction”), will at unless such withholding or deduction is required by law. In the event that any time such taxes, duties, assessments or governmental charges imposed or levied by or on behalf of a Relevant Taxing Jurisdiction are required to be required withheld or deducted from any payments or deliveries made with respect to by the Notes Company or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if anyPaying Agent, the non-U.S. Payor will Company shall pay (together with such payments) to each Holder such additional amounts (the “Additional Amounts”) as may be necessary in order to ensure that the net amounts amount received in respect of such payments by the Holder after such withholding or deduction (including and after deducting any such deduction or withholding from such taxes on the Additional Amounts), will not be less than ) shall equal the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of had no such withholding or deductiondeduction been required; provided, however, provided that no such Additional Amounts will shall be payable payable:
(i) for or on account of:
(1A) any Taxes tax, duty, assessment or other governmental charge that would not have been so imposed but for:
(1) (I) except solely with respect to any Israeli taxes withheld or levied but deducted from payments of Special Interest, if any, on a Note, the Holder or beneficial owner of such Note being (x) an Israeli resident for Israeli tax purposes or is otherwise subject to tax in Israel due to having permanent establishment or other nexus to Israel or (y) a non-Israeli corporation, for which Israeli residents (i) have a controlling interest of more than 25% in such non-Israeli corporation or (ii) are the beneficiaries of, or are entitled to, 25% or more of the revenues or profits of such non-Israeli corporation (whether directly or indirectly), or (II) in the case of a Relevant Taxing Jurisdiction other than Israel, the existence of any present or former connection between the relevant Holder or beneficial owner of such Note (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant HolderHolder or beneficial owner, if such the relevant Holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen Jurisdiction, other than merely holding, beneficially owning or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of enforcing rights under such Notes or any guarantee of the Notes Note or the enforcement or receipt of any payment in respect thereofpayments thereunder;
(2) any Taxes the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of (x) the date on which such payment or delivery first becomes due and (y) the date on which payment or delivery thereof is duly provided, except to the extent that the Holder or beneficial owner or such other person would not have been so imposed entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period; or
(3) except solely with respect to any Israeli taxes withheld or levied deducted from payments of Special Interest, if any, on a Note (other than any Conversion Consideration Withholding), the failure of the Holder (or, in the case of a Global Note, the relevant beneficial owner acquiring beneficial ownership of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably consideration due upon conversion) to comply with that request) a timely request from the Company to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence (including a “Declaration of Status for Israeli Income Tax Purposes” by such Holder or beneficial owner confirming eligibility for an exemption from Israeli Capital Gain Tax solely upon a conversion or redemption), identity or connection with such Relevant Taxing Jurisdiction, or to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided or satisfy any other reasonable reporting requirement relating to such matters, if and to the extent that such declaration of nonresidence Holder or other claim, filing or requirement beneficial owner is legally able to comply with such request and due and timely compliance with such request is required by the applicable lawstatute, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction in order to reduce or eliminate any withholding or deduction as a precondition to exemption from, which Additional Amounts would have otherwise been payable to such Holder or reduction in the rate of deduction or withholding of, any such Taxes)beneficial owner;
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4B) any estate, inheritance, gift, use, sales, transfer, excise, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(5C) any Taxes tax, duty, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments under or with respect to the Notes;
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (“FATCA”), any current or future U.S. Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement the foregoing or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA;
(E) any tax, assessment or other governmental charge imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax tax, assessment or governmental charge by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;; or
(6F) any Taxes payable under Sections 1471 through 1474 combination of taxes referred to in the Code as of the date of the Offering Memorandum preceding clauses (or any amended or successor version that is substantively comparable and not materially more onerous to comply withA), any current or future regulations or official interpretations thereof(B), any agreements entered into pursuant thereto(C), (D) and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreementsE); or
(7ii) with respect to any combination payment of the above. Such Additional Amounts will also not be payable principal of (xincluding the Redemption Price and the Fundamental Change Repurchase Price, if applicable) and Special Interest on such Note, if any, or the payment could have been made without such deduction or withholding if the beneficiary of the cash and/or delivery of Ordinary Shares (together with payment had presented the Note for payment (where presentation is requiredof cash in lieu of fractional Ordinary Shares) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice upon conversion of such Note to any Person who is a fiduciary, partnership or Person other than the sole beneficial owner of that payment is given to the Holders), except to the extent that such payment would be required to be included in the Holder income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a partner or member of that partnership or a beneficial owner or other such Person would have been entitled to Additional Amounts on presenting who the Note for payment on any date during such 30-day period or (y) where, had Company knows at the beneficial owner time of the Note been the Holder of the Note, such beneficial owner payment or delivery would not have been entitled to payment of such Additional Amounts by reason of any of clauses (1) to (7) inclusive abovehad that beneficiary, settlor, partner, member or beneficial owner been the Holder thereof. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted Notwithstanding the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receiptsforegoing, the same are not obtainable, such non-U.S. Payor will provide limitations on the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated Company’s obligation to pay Additional Amounts set forth in Section 4.10(a)(i)(A)(3) shall not apply if the provision of any certification, identification, information, documentation or other reporting requirement described in Section 4.10(a)(i)(A)(3) would be materially more onerous, in form, in procedure or in substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulations and administrative practice (such as U.S. Internal Revenue Service Forms W-8BEN-E and W-9), provided that for the purposes of this paragraph, the provision of a “Declaration of Status for Israeli Income Tax Purposes” solely upon a conversion or redemption by a Holder or beneficial owner of a Note shall not be considered materially more onerous than comparable information or other reporting requirements under U.S. tax law, regulations and administrative practice (such as U.S. Internal Revenue Service Forms W-8BEN-E and W-9). For the avoidance of doubt, no Holder or beneficial owner of a Note shall have any obligation to establish eligibility for a reduced (or zero) withholding tax rate under any income tax treaty or to obtain a non-Israeli tax certificate (or similar approval) from a non-Israeli tax authority in order to receive Additional Amounts.
(b) If the Company is required to make any deduction or withholding from any payments or deliveries with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor Company will deliver to the Trustee an Officer’s Certificate stating official tax receipts evidencing 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 (unless such obligation to pay Additional Amounts arises less than 45 days prior remittance to the relevant payment date, in which case tax authorities of the non-U.S. Payor shall deliver amounts so withheld or deducted. Copies of such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee receipts shall be entitled made available to rely solely on such Officer’s Certificate Holders or beneficial owners (as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee applicable) of the Notes upon request.
(c) Whenever there is mention of, mentioned in any context:
(1) context the payment of principal;
principal of (2including the Redemption Price and the Fundamental Change Repurchase Price, if applicable), the payment of Special Interest, if any, on, or the payment of cash and/or the delivery of Ordinary Shares (together with payment of cash in lieu of fractional Ordinary Shares) redemption prices upon conversion of any Note 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 Notes or any guarantee of the Notes; such reference Note, such mention shall be deemed to include payment of Additional Amounts as described under provided for in this Section 2.13 Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(d) The non-U.S. Payors will Company shall promptly pay when due any present or future stamp, court or documentary Taxes, taxes or any other exciseexcise or property taxes, property charges or similar Taxes levies that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, delivery or registration or enforcement of any Notes, this Indenture each Note or any other document or instrument in relation thereto (other than referred to herein or therein, except for taxes, charges or similar levies resulting from a transfer of Notes other than the Notesinitial sale by the Initial Purchasers and except as provided in Section 2.06, Section 14.02(d) and Section 14.02(e). .
(e) All payments and deliveries made under or with respect to the transactions contemplated herein are exclusive of VAT and, accordingly, if VAT is or becomes due, then the Company must pay all such VAT to the relevant tax authorities.
(f) The foregoing above obligations will survive any termination, defeasance or discharge of this the Indenture or any transfer by a Holder or beneficial owner of its notes and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor us is then, for tax purposes, incorporated, organized or otherwise considered to be a resident for tax purposes or doing business (or any political subdivision or taxing authority or agency thereof or therein) or any jurisdiction from or through which payment or delivery under or with respect to the notes is made or deemed made by or on behalf of such successor (or any political subdivision or taxing authority thereof or therein).
Appears in 1 contract
Sources: Indenture (Camtek LTD)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor or on behalf of Jafra Distribution (Mexico) under or with respect to the Notes or by or on behalf of any guarantee of Note Guarantor (other than Jafra US) under or with respect to any Note Guarantee (in any case, the Notes will Person making such payment, a "Payor") shall be made free and clear of and without withholding or deduction for, for or on account of, of any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectivelyincluding penalties, “Taxes”interest and other liabilities related thereto) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of the Governments of Mexico, Luxembourg or the jurisdiction of incorporation, seat of management or residence for income tax purposes of any jurisdiction (other than the United States future Mexican Subsidiary Guarantor or any political subdivision successors to the Company, Jafra Distribution (Mexico) or governmental authority any Mexican Subsidiary Guarantor (each a "Successor Jurisdiction"), as the case may be, or of any territory thereof or by any authority or agency therein or thereof having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2hereinafter "Taxes"), unless the Payor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If a “Relevant Taxing Jurisdiction”), will at Payor is so required to withhold or deduct any time be required amount for or on account of Taxes from any payments payment made under or with respect to the Notes or any guarantee of the Notesa Note Guarantee, including payments of principal, redemption price, interest or premium, if any, the non-U.S. such Payor will be required to pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order so that the net amounts amount received in respect of such payments by the each Holder (including Additional Amounts) after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that amount the Holder would have received if such Taxes had not been received in respect of such payments on the Notes withheld or the guarantees of the Notes in the absence of such withholding or deductiondeducted; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1i) any payment to a Holder which is subject to such Taxes by reason of its (or the beneficial owner of the Notes) being connected with Mexico, Luxembourg or any Successor Jurisdiction or any territory thereof other than a connection arising from the mere holding of Notes or the receipt of payments in respect of the Notes or the Note Guarantees;
(ii) any Taxes with respect to a Note presented for payment more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to the Holders, whichever occurs later, except to the extent that the Holder of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30-day period;
(iii) Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee failure of the Notes Holder or the enforcement or receipt beneficial owner of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the a Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption frominformation, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or documentation requirement is required by the applicable under law, treatyregulation, regulation or official administrative practice of the Relevant Taxing Jurisdiction as or an applicable treaty that is a precondition to exemption from, or reduction in the rate of of, the imposition, deduction or withholding ofof Taxes; provided that at least 60 days prior to (a) the first payment date with respect to which this clause (iii) shall be applied and (b) in the event of a change in such certification, any identification, information or other documentation requirement, the first payment date subsequent to such Taxes)change, the Payor shall have notified the Trustee, in writing, that the Holders or beneficial owners of the Notes will be required to provide such information or documentation;
(3iv) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or other similar Taxestaxes imposed with respect to such Notes;
(5v) any Taxes imposed Tax which is only payable otherwise than by withholding or deduction from payments in connection with a respect of the Notes or the Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;Guarantees; and
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7vi) any combination of the items (i), (ii), (iii), (iv) and (v) above. Such Additional Amounts Each Payor will also not be payable (x) if the payment could have been made without make such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction as and when required in accordance with applicable law. The non-U.S. Each Payor will use reasonable efforts furnish to obtain the Trustee of the Notes, 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 such Payor; provided, however, that if the payment of any Taxes so deducted or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing Payor is unable to obtain such Taxes and will provide such certified copies to the Trustee and the Holders. Ifreceipt within 30 days, notwithstanding the such Payor's best efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of furnish such payment, the non-U.S. Payor will deliver receipts to the Trustee an Officer’s Certificate stating the fact that Additional Amounts will as soon as receipts can 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 (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date)obtained. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever Whenever in this Indenture, the Notes or any guarantee of the Notes Indenture there is mention ofmentioned, in any context:
, (1a) the payment of principal;
, (2b) redemption prices or purchase prices in connection with a redemption or purchase of Notes;
, (3c) interest; or
interest or (4d) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; a Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under provided for in this Section 2.13 section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors Each Payor will pay any present or future stamp, court or documentary Taxes, taxes or any other excisesimilar taxes, property charges or similar Taxes levies that arise in Mexico, Luxembourg or any Relevant Taxing Successor Jurisdiction from the execution, delivery, issuanceregistration of, initial resale, registration or enforcement of any rights under, the Notes, this the Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes)thereof. The foregoing obligations will of each Payor under this Section 404 shall survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinthe Indenture.
Appears in 1 contract
Sources: Indenture (Dirsamex Sa De Cv)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to All payments made by any Obligor Issuer or any Guarantor or any successor in interest to an Obligor any of the foregoing (each such Obligor or successoreach, a “non-U.S. Payor”), all payments made by a non-U.S. Payor ) on or with respect to the Notes or any guarantee of the Notes Guarantee will be made without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1a) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) from or through which payment on the Notes or any guarantee of the Notes Guarantee is made by or on behalf of a non-U.S. such Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2b) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes Guarantee is organized organized, or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1a) and (2b), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the NotesGuarantee, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders, the Trustee or any Agent, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes Guarantees in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
(1i) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder or beneficial owner of the Note (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment or exercise of any right in respect thereof;
(2ii) any Taxes that would not have been so imposed or levied if the Holder or beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from the requirement to deduct or reduction in the rate withhold all or a part of deduction or withholding of, any such Taxes);
(3iii) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the NotesGuarantee;
(4iv) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5v) any Taxes imposed in connection with pursuant to the Luxembourg law dated 23 December, 2005, introducing a Note presented for payment (where presentation is required for payment) by or withholding tax on behalf of a Holder or beneficial owner who would have been able certain interest payments made to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying AgentLuxembourg resident individuals;
(6vi) any Taxes payable under Sections 1471 through 1474 of the Code Code, as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreementsagreements (“FATCA”); or
(7vii) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Ortho Clinical Diagnostics Holdings PLC)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. the Payor on or with respect to the Notes or any guarantee of the Notes Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of (1) any jurisdiction (other than in which the United States Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes Guarantees is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposesmade, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1) and (2), a “Relevant Taxing Jurisdiction”), will 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 of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or any guarantee of the NotesGuarantees, including including, without limitation, payments of principal, redemption priceRedemption Price, interest or premium, if any, the non-U.S. Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any Taxes that would not have been so imposed or levied but by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or Beneficial Owner who is liable for such Taxes in respect of the existence Notes by reason of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partnermember, member partner or shareholder of, or possessor of power over, over the relevant Holder, if such the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the or Beneficial Owner having any present or former connection with such Relevant Taxing Jurisdiction (including including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the such Relevant Taxing Jurisdiction) but excluding, in each case, any other than a connection arising solely from the acquisition, ownership or holding of such Notes Note or any guarantee enforcement of rights thereunder or the receipt of payments in respect of the Notes or the enforcement or receipt of with respect to any payment in respect thereofGuarantee;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note or Beneficial Owner had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence non-residence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that (x) such declaration of nonresidence non-residence or other claim, claim or filing or requirement for exemption is required by the applicable law, treaty, regulation or official administrative practice law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption fromfrom the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or reduction Beneficial Owner at that time has been notified in writing by the rate Payor or any other person through whom payment may be made that a declaration of deduction non-residence or withholding of, any such Taxesother claim or filing for exemption is required to be made);
(3) except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);
(4) any Note presented for payment (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 during such 30 day period);
(5) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to the Notes or any guarantee of the NotesGuarantee;
(46) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(57) any Taxes a Tax imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner Beneficial Owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting accept payment from, another Paying Agentpaying agent in a member state of the European Union;
(6) 8) any Taxes payable under imposed, deducted or withheld pursuant to Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code Code, in each case, as of the date of the Offering Memorandum Issue Date (or and any amended or successor version that is substantively comparable and not materially more onerous to comply withcomparable), ; any current or future regulations or agreements thereunder, official interpretations thereofthereof or any law implementing an intergovernmental agreement relating thereto; or any treaty, any agreements entered into pursuant theretolaw, and any intergovernmental agreements implementing the foregoing (including any legislation regulation or other official guidance relating enacted in any other jurisdiction, facilitating implementation thereof;
(9) all United States backup withholding taxes;
(4) any Tax deducted, withheld or imposed in connection with the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021) as amended from time to such intergovernmental agreements)time; or
(75) any combination of the clauses (1) through (10) above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner Beneficial Owner of the Note been the Holder of the Note, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (711) inclusive above. The non-U.S. Payors Upon request, the Issuer will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted provide the full amount deducted or withheld Trustee with documentation satisfactory to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and documentation will provide such certified copies be made available to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinupon request.
Appears in 1 contract
Sources: Indenture (Smurfit WestRock PLC)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by the Issuer, any Guarantor or any successors thereto (a non-U.S. Payor “Payor”) on or with respect to the Notes or (including any guarantee Note Guarantee for the purposes of the Notes this Section 4.18) will be made without withholding or deduction for, or on account of, any present or future taxtaxes (including interest penalties to the extent resulting from a failure by the Issuer to timely pay amounts due), dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “Taxes”) unless such the withholding or deduction of such Taxes is then required by law or by the official interpretation of or administration of lawthereof. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the government of the United States Kingdom or any political subdivision or governmental authority thereof or therein having power to tax;
(2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payormade, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1), (2) and (23), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by each Holder of the Holder Notes, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than ) equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1a) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) beneficial owner and the Relevant Taxing Jurisdiction imposing such Taxes (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, other than the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, mere ownership or holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or under this Indenture or the enforcement or receipt of any payment payments in respect thereof);
(2b) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence non-residence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that (A) such declaration of nonresidence non-residence or other claim, claim or filing or requirement for exemption is required by the applicable law, treaty, regulation or official administrative practice law of the Relevant Taxing Jurisdiction as a precondition to exemption from, from the requirement to deduct or reduction in the rate withhold all or a part of deduction or withholding of, any such TaxesTaxes and (B) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the Relevant Taxing Jurisdiction, the relevant Holder at that time has been notified (in accordance with the procedures set forth in this Indenture) by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made but only to the extent the holder is legally entitled to provide such declaration, claim or filing);
(3c) 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 during such 30-day period);
(d) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest on or with respect to the Notes or any guarantee of the Notes;
(4e) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(5f) any withholding or deduction imposed on a payment to an individual and required to be made pursuant to the European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN 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;
(g) any Taxes imposed in connection with a Note presented for payment which could have been avoided by the presentation (where presentation is required for paymentrequired) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, to another Paying AgentAgent in a member state of the European Union;
(6h) all United States backup withholding taxes;
(i) any Taxes payable under withholding or deduction imposed pursuant to (a) Sections 1471 through 1474 of the United States Internal Revenue Code of 1986 (as amended), as of the date of the Offering Memorandum this indenture (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), ) and any current or future regulations or official interpretations thereof; (b) any treaty, any agreements entered into pursuant theretolaw, and any intergovernmental agreements implementing the foregoing (including any legislation regulation or other official guidance enacted in any other jurisdiction, or relating to such an intergovernmental agreements)agreement between the United States and any other jurisdiction, which (in either case) facilitates the implementation of (a) above or (c) any agreement pursuant to the implementation of (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction; or
(7j) any combination of the items (a) through (i) above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1a) to (7j) inclusive aboveof this Section 4.18. The non-U.S. Payors Payor will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies (or, if certified copies are not available despite reasonable efforts of the Payor, other evidence of payment reasonably satisfactory to the Trustee Trustee) to each Holder. The Payor will attach to each certified copy (or other evidence) 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 Holders. If, notwithstanding the efforts amount of such non-U.S. Payor to obtain withholding Taxes paid per £1,000 or $1,000 principal amount of the Notes, as the case may be. Copies of such receipts, documentation will be available for inspection during ordinary business hours at the same are not obtainable, such non-U.S. Payor will provide office of the Trustee and by the Holders upon request and will be made available at the offices of the Registrar if the Notes are then listed on the Luxembourg Stock Exchange. At least 30 days prior to each date on which any payment under or with other reasonable evidence. If any non-U.S. 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 Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable and payable, the amount amounts so payable and will set forth such other information necessary to enable the Paying Agent Trustee to pay such Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver . Each such Officer’s Certificate and shall be relied upon until receipt of a further Officer’s Certificate addressing such other information as promptly as practicable after the date that is 30 days prior to the payment date)matters. The Trustee shall be entitled to rely solely on each such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever mentioned in this Indenture, Indenture or the Notes or any guarantee of the Notes there is mention ofNotes, 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
, or (4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; , such reference shall be deemed to include payment of Additional Amounts as described under this Section 2.13 heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors Payor will pay any present or future stamp, court or documentary Taxes, taxes or any other exciseexcise or property taxes, property charges or similar Taxes that levies (including interest and penalties to the extent resulting from a failure by the Issuer to timely pay amounts due) which arise in any Relevant Taxing Jurisdiction jurisdiction from the execution, delivery, issuance, initial resale, delivery or registration or enforcement of any Notes, this Indenture Notes or any other document or instrument in relation thereto referred to therein (other than a transfer of the Notes), or the receipt of any payments with respect to the Notes, excluding any such taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction or any jurisdiction in which a Paying Agent is located, other than those resulting from, or required to be paid in connection with, the enforcement of the Notes, the Security or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes. The foregoing obligations of this Section 4.18 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Liberty Global PLC)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments made by the Company, a non-U.S. Payor Successor Company or a Guarantor (a “Payor”) on or with respect to the Notes or any guarantee of the Notes Note Guarantees will be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) Taxes unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) (i) the United States of America, (ii) any jurisdiction (other than State of the United States or the District of Columbia, (iii) the Grand Duchy of Luxembourg, (iv) the United Kingdom or (v) with respect to each of the jurisdictions in (i)-(iv), any political subdivision or governmental authority Governmental Authority thereof or therein having power to tax;
(2) any jurisdiction from or through which payment on the Notes any such Note or any guarantee of the Notes Note Guarantee is made by the Company, Successor Company, Guarantor or on behalf of a non-U.S. Payortheir agents, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax; or
(23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. the Payor that actually makes a payment on the Notes is incorporated or its guarantee of the Notes is organized organized, engaged in business for tax purposes or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax (each of clauses (1), (2) and (23), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes any Note or any guarantee of the NotesNote Guarantee, including payments of principal, redemption price, interest or premium, if any, or interest, the non-U.S. Payor will shall pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that which would have been received in respect of such payments on the Notes any such Note or the guarantees of the Notes Note Guarantee in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, over the relevant Holder, if such the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including including, but not limited to, being a citizen or resident or national or domiciliary of, or carrying on the existence of a business, a permanent establishment, a dependent agent, a place of business or maintaining a permanent establishment in, place of management present or being physically deemed present in, in the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes Note or any guarantee enforcement of the Notes rights hereunder or under a Note Guarantee or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that are imposed or withheld on behalf of a Holder who would not have been so imposed able to avoid such withholding or levied if the Holder of the Note had complied deduction by complying with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any applicable certification, documentation, identification, information or other reporting requirement for exemption fromconcerning the nationality, residence, identity or reduction in connection with the rate of, withholding to which it is entitled (provided that Relevant Taxing Jurisdiction if such declaration of nonresidence or other claim, filing or requirement compliance is required by the applicable law, treaty, statute or regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to relief or exemption from, applicable withholding tax or reduction in the rate of deduction or withholding of, any such Taxes)duty;
(3) any Taxes that are payable otherwise than by deduction or withholding from a payment on or with respect to the Notes or any guarantee of the NotesNote Guarantee;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying AgentAgent in the United Kingdom or any member state of the European Union;
(6) any Taxes payable under imposed on or with respect to a payment to a Holder that is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment or Note, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note;
(7) any Taxes imposed pursuant to or in connection with Sections 1471 through 1474 of the Code Code, the United States Treasury Regulations thereunder or any similar law or regulations adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing;
(8) any Taxes required to be withheld by any Paying Agent from any payment of principal of, or interest on, any Note if such payment can be made without such withholding by any other Paying Agent outside the United States;
(9) any Taxes imposed by reason of such Holder’s past or present status, for U.S. federal income tax purposes, as a passive foreign investment company (including a qualified election fund), a controlled foreign corporation, a personal holding company, a private foundation or other tax exempt organization or as a corporation which accumulates earnings to avoid United States federal income tax;
(10) any Taxes imposed on interest received by a Holder or beneficial owner of a Note that is a 10% shareholder (as defined in Section 871(h)(3)(B) of the date Code and the regulations that may be promulgated thereunder) of the Offering Memorandum (Company, being a bank whose receipt of interest on a Note is described in Section 881(c)(3)(A) of the Code and regulations that may be promulgated thereunder or any amended or successor version being a controlled foreign corporation that is substantively comparable and not materially more onerous related to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreementsCompany as described in Section 881(c)(3)(C); or
(711) any combination of the above. .
(b) Such Additional Amounts will also not be payable (x) if to the extent the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is requiredrequired for payment) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders)Holder, except for Additional Amounts with respect to the extent Taxes that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting imposed had the Holder presented the Note for payment on any date during within such 30-30 day period or (y) where, had the beneficial owner of the Note been the Holder, except for Additional Amounts with respect to Taxes that would have been imposed had the Holder of presented the NoteNote for payment within such 30-day period, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (711) inclusive above. , but only if there is no material cost or legal restriction associated with transferring the Note to such beneficial owner.
(c) The non-U.S. Payors will Payor shall (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will shall 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes Taxes, in such form as provided in the ordinary course by the Relevant Taxing Jurisdiction and will as is reasonably available to the Payor, and shall provide such certified copies to the Trustee Trustee. Such copies shall be made available to the Holders upon request and shall be made available during normal business hours at the Holdersoffices of the Paying Agent. If, notwithstanding The Payor shall attach to each certified copy a certificate stating (x) that the efforts 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 non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. withholding Taxes paid per €1,000 principal amount of Notes.
(d) If any non-U.S. Payor will becomes aware that it shall be obligated to pay Additional Amounts under or with respect to any payment made on the Notesany Note or Note Guarantee, at least 30 days prior to the date of such payment, the non-U.S. Payor will shall deliver to the Trustee and the Paying Agent 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 (unless such obligation to pay Additional Amounts arises arises, or the Payor becomes aware of such obligation, less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall may deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date but in any event no less than 2 (two) Business Days prior to the payment date). The Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate without further inquiry, as conclusive proof that such payments are necessary. .
(e) Wherever in this Indenture, Indenture or the Notes or any guarantee of the Notes Note Guarantees there is mention ofare mentioned, in any context:
(1) the payment of principal;
(2) purchase or redemption prices or purchase prices in connection with a purchase or redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; , such reference shall be deemed to include payment of Additional Amounts as described under pursuant to this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(f) The non-U.S. Payors will Payor shall pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture Indenture, the Intercreditor Agreement, the other Security Documents or any other document or instrument in relation thereto (other than a transfer or exchange of the Notes). ) excluding any such Taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction.
(g) The foregoing obligations of this Section 2.13 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor the Company or any Guarantor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Encore Capital Group Inc)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor the Company on or with respect to the Notes or any guarantee of the Notes will ------------------ be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “"Taxes”") imposed or levied by or on behalf of Germany or any jurisdiction in which the Company or any Successor Company is organized or is otherwise resident for tax purposes or any political subdivision thereof or any authority having power to tax therein or any jurisdiction from or through which payment is made (each a "Relevant Taxing Jurisdiction"), unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will shall at any time be required from on any payments made by the Company with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor Company will pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts)deduction, will not be less than equal the respective amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, except that no such Additional Amounts will be payable for or on account ofwith respect to:
(1a) any payments on a Note held by or on behalf of a Holder or beneficial owner who is liable for such Taxes that would not have been so imposed in respect of such Note by reason of the Holder or levied but for the existence of any present or former beneficial owner having some connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and with the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than by the acquisition, ownership or mere holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof;
(2b) any Taxes that would not have been so are imposed or levied if withheld as a result of a change in law after the Issue Date where such withholding or imposition is by reason of the failure of the Holder or beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) any request by the Company to provide information concerning the nationality, residence or identity of such Holder or beneficial owner or to make a any declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or reporting requirement for exemption fromrequirement, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from all or reduction in the rate part of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5c) except in the case of the winding up of the Company, any Taxes imposed in connection with a Note presented for payment (where presentation is required for paymentrequired) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting in the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements)Relevant Taxing Jurisdiction; or
(7d) any combination of Note presented for payment (where presentation is required) more than 30 days after the aboverelevant payment is first made available for payment to the Holder. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner he would not have been entitled to payment of Additional Amounts by reason of any of clauses (1a) to (7d) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Cybernet Internet Services International Inc)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or with respect to the Notes or any guarantee of the Notes will be made without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;; Table of Contents
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Broadcom Inc.)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. the Payor on or with respect to the Notes or any guarantee of the Notes Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of (1) any jurisdiction (other than in which the United States 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 (2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes Guarantees is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposesmade, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1) and (2), a “Relevant Taxing Jurisdiction”), will 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 of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or any guarantee of the NotesGuarantees, including including, without limitation, payments of principal, redemption priceRedemption Price, interest or premium, if any, the non-U.S. Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any Taxes that would not have been so imposed or levied but by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or Beneficial Owner who is liable for such Taxes in respect of the existence Notes by reason of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partnermember, member partner or shareholder of, or possessor of power over, over the relevant Holder, if such the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the or Beneficial Owner having any present or former connection with such Relevant Taxing Jurisdiction (including including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the such Relevant Taxing Jurisdiction) but excluding, in each case, any other than a connection arising solely from the acquisition, ownership or holding of such Notes Note or any guarantee enforcement of rights thereunder or the receipt of payments in respect of the Notes or the enforcement or receipt of with respect to any payment in respect thereofGuarantee;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note or Beneficial Owner had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence non-residence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that (x) such declaration of nonresidence non-residence or other claim, claim or filing or requirement for exemption is required by the applicable law, treaty, regulation or official administrative practice law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption fromfrom the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or reduction Beneficial Owner at that time has been notified in writing by the rate Payor or any other person through whom payment may be made that a declaration of deduction non-residence or withholding of, any such Taxesother claim or filing for exemption is required to be made);
(3) except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);
(4) any Note presented for payment (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 during such 30 day period);
(5) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to the Notes or any guarantee of the NotesGuarantee;
(46) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(57) any Taxes a Tax imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner Beneficial Owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting accept payment from, another Paying Agentpaying agent in a member state of the European Union;
(6) 8) any Taxes payable under imposed, deducted or withheld pursuant to Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code Code, in each case, as of the issue date of the Offering Memorandum (or and any amended or successor version that is substantively comparable and not materially more onerous to comply withcomparable), ; any current or future regulations or agreements thereunder, official interpretations thereofthereof or any law implementing an intergovernmental agreement relating thereto; or any treaty, any agreements entered into pursuant theretolaw, and any intergovernmental agreements implementing the foregoing (including any legislation regulation or other official guidance relating enacted in any other jurisdiction, facilitating implementation thereof;
(9) all United States backup withholding taxes;
(10) any Tax deducted, withheld or imposed in connection with the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021), as amended from time to such intergovernmental agreements)time; or
(711) any combination of the clauses (1) through (10) above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner Beneficial Owner of the Note been the Holder of the Note, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (711) inclusive above. The non-U.S. Payors Upon request, the Issuer will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted provide the full amount deducted or withheld Trustee with documentation satisfactory to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and documentation will provide such certified copies be made available to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinupon request.
Appears in 1 contract
Sources: Indenture (Smurfit Westrock PLC)
Additional Amounts. After All payments made by the occurrence of a Non-U.S. Domicile Transaction with respect to Issuer, any Obligor Guarantor or any successor in interest to an Obligor thereto (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor ) on or with respect to the Notes or (including any guarantee Note Guarantee for the purposes of the Notes this Section 4.18) will be made without withholding or deduction for, or on account of, any present or future taxtaxes (including interest penalties to the extent resulting from a failure by the Issuer to timely pay amounts due), dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “Taxes”) unless such the withholding or deduction of such Taxes is then required by law or by the official interpretation of or administration of lawthereof. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the government of the United States Kingdom or any political subdivision or governmental authority thereof or therein having power to tax;
(2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payormade, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1), (2) and (23), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by each Holder, as the Holder case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than ) equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1A) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) beneficial owner and the Relevant Taxing Jurisdiction imposing such Taxes (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, other than the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, mere ownership or holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or under this Indenture or the enforcement or receipt of any payment payments in respect thereof);
(2B) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence non-residence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that (i) such declaration of nonresidence non-residence or other claim, claim or filing or requirement for exemption is required by the applicable law, treaty, regulation or official administrative practice law of the Relevant Taxing Jurisdiction as a precondition to exemption from, from the requirement to deduct or reduction in the rate withhold all or a part of deduction or withholding of, any such TaxesTaxes and (ii) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the Relevant Taxing Jurisdiction, the relevant Holder at that time has been notified (in accordance with the procedures set forth in this Indenture) by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made but only to the extent the holder is legally entitled to provide such declaration, claim or filing);
(3C) 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 during such 30-day period);
(D) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest on or with respect to the Notes or any guarantee of the Notes;
(4E) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(5F) Taxes withheld or deducted on a payment required to be withheld or deducted pursuant to the European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN 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;
(G) any Taxes imposed in connection with a Note presented for payment which could have been avoided by the presentation (where presentation is required for paymentrequired) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, to another Paying AgentAgent in a member state of the European Union;
(6H) all United States backup withholding taxes;
(I) any Taxes payable under withholding or deduction imposed pursuant to (i) Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986 (as amended), as of the date of the Offering Memorandum Issue Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), ) and any current or future regulations or official interpretations thereof; (ii) any treaty, any agreements entered into pursuant theretolaw, and any intergovernmental agreements implementing the foregoing (including any legislation regulation or other official guidance enacted in any other jurisdiction, or relating to such an intergovernmental agreements)agreement between the United States and any other jurisdiction, which (in either case) facilitates the implementation of (i) above or (iii) any agreement pursuant to the implementation of (i) or (ii) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction; or
(7J) any combination of the items (A) through (I) above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the NoteHolder, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1A) to (7J) inclusive aboveof this Section 4.18. The non-U.S. Payors Payor will (ia) make or cause to be made any required withholding or deduction and (iib) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies (or, if certified copies are not available despite reasonable efforts of the Payor, other evidence of payment reasonably satisfactory to the Trustee Trustee) to each Holder. The Payor will attach to each certified copy (or other evidence) 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 Holders. If, notwithstanding the efforts amount of such non-U.S. Payor to obtain withholding Taxes paid per $1,000 or £1,000 principal amount of the Notes, as the case may be. Copies of such receipts, documentation will be available for inspection during ordinary business hours at the same are not obtainable, such non-U.S. Payor will provide office of the Trustee and by the Holders upon request and will be made available at the offices of the Paying Agent if the Notes are then listed on the Luxembourg Stock Exchange. At least 30 days prior to each date on which any payment under or with other reasonable evidence. If any non-U.S. 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 Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable and payable, the amount amounts so payable and will set forth such other information necessary to enable the Paying Agent Trustee to pay such Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver . Each such Officer’s Certificate and shall be relied upon until receipt of a further Officer’s Certificate addressing such other information as promptly as practicable after the date that is 30 days prior to the payment date)matters. The Trustee shall be entitled to rely solely on each such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever mentioned in this Indenture, Indenture or the Notes or any guarantee of the Notes there is mention ofNotes, 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
, or (4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; , such reference shall be deemed to include payment of Additional Amounts as described under this Section 2.13 heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors Payor will pay any present or future stamp, court or documentary Taxes, taxes or any other exciseexcise or property taxes, property charges or similar Taxes that levies (including interest and penalties to the extent resulting from a failure by the Issuer to timely pay amounts due) which arise in any Relevant Taxing Jurisdiction jurisdiction from the execution, delivery, issuance, initial resale, delivery or registration or enforcement of any Notes, this Indenture Notes or any other document or instrument in relation thereto referred to therein (other than a transfer of the Notes), or the receipt of any payments with respect to the Notes, excluding any such taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction or any jurisdiction in which a Paying Agent is located, other than those resulting from, or required to be paid in connection with, the enforcement of the Notes, the Collateral or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes. The foregoing obligations of this Section 4.18 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Liberty Global PLC)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments made by a non-U.S. Payor or on behalf of the Company under or with respect to the Notes or any guarantee of the Notes will be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectivelyincluding penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than of the United States government of the Republic of ▇▇▇▇▇▇▇▇ Islands or any political subdivision or governmental any authority or agency therein or thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes Company (including any successor entity) is organized or is otherwise considered to be a resident for tax purposes, or any political subdivision jurisdiction from or governmental authority thereof or therein having through which payment is made (including, without limitation, the power to tax jurisdiction of each paying agent) (each of clauses (1) and (2), a “Relevant Taxing Specified Tax Jurisdiction”), will at any time be required to be made from any payments made under or with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor Company will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order so that the net amounts amount received in respect of such payments by the a Holder (including Additional Amounts) after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that amount such Holder would have received if such Taxes had not been received in respect of such payments on the Notes withheld or the guarantees of the Notes in the absence of such withholding or deductiondeducted; provided, however, that no such the foregoing obligation to pay Additional Amounts will be payable for or on account ofdoes not apply to:
(1i) any Taxes that would not have been so imposed or levied but for the existence Holder or beneficial owner of the Notes having any present or former connection between with the relevant Specified Tax Jurisdiction, including any such connection arising as a result of such Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, partner, member or shareholder i) being organized under the laws of, or possessor of power overotherwise being or having been a domiciliary, the relevant Holdercitizen, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national ofthereof, (ii) being or carrying on having been engaged in a trade or business therein, (iii) having or having had its principal office located therein, (iv) maintaining a permanent establishment intherein, (v) being or having been physically present therein, or being physically present in, (vi) otherwise having or having had some connection with the Relevant Taxing Jurisdiction) but excludingSpecified Tax Jurisdiction (other than, in each case, any present or former connection arising solely from as a result of the mere acquisition, ownership or holding of such Notes or any guarantee of the Notes or the ownership, holding, enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such TaxesNotes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4ii) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar Taxestax, assessment or governmental charge;
(5iii) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes;
(iv) any Taxes imposed in connection with as a Note presented for payment (where presentation is required for payment) by or on behalf result of a the failure of the Holder or beneficial owner who of the Notes to complete, execute and deliver to the Company (but only if such Holder or beneficial owner can do so without undue hardship) any form or document to the extent applicable to such Holder or beneficial owner that may be required by law or by reason of administration of such law and which is reasonably requested in writing to be delivered to the Company in order to enable the Company to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a lesser amount, which form or document will be delivered within 30 days of a written request therefor by the Company;
(v) any Taxes that would not have been so imposed but for the Holder having presented a Note for payment (in cases in which presentation is required) more than 30 days after the date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the Holder would have been able entitled to avoid Additional Amounts had the Note been presented on the last day of such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent30-day period);
(6vi) any Taxes payable imposed on or with respect to any payment by the Company to the Holder if such Holder is (i) a fiduciary, a partnership, a limited liability company or other fiscally transparent entity or (ii) a Person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a partner or a member of such partnership, limited liability company or other fiscally transparent entity or the beneficial owner of such payment would not have been entitled to Additional Amounts had such beneficiary, settlor, partner, member or beneficial owner been the direct Holder of such Note;
(vii) any Taxes imposed under FATCA (as defined below); or
(viii) any combination of items (i) through (viii) above. For purposes of this Section 8.01, FATCA shall mean Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”), as of the date of the Offering Memorandum Issue Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), or any current or future regulations U.S. Treasury Regulations promulgated thereunder or official administrative interpretations thereof, thereof and any agreements entered into pursuant theretoto Section 1471(b)(1) of the Code or any fiscal or regulatory legislation, and rules or practices adopted pursuant to any intergovernmental agreements implementing agreement entered into in connection with the foregoing (including any legislation or other official guidance relating to implementation of such intergovernmental agreements); orSections of the Code.
(7b) any combination of If the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided Company becomes aware that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor it will be obligated to pay Additional Amounts with respect to any payment under or with respect to any payment made on the Notes, the Company will deliver to the Trustee and Paying Agent at least 30 days prior to the date of such paymentthat payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the non-U.S. Payor Company will deliver notify the Trustee and Paying Agent in writing promptly thereafter but in no event later than five calendar days prior to the Trustee date of payment) an Officer’s Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount so payable and such payable. The Officers’ Certificate shall also set forth any other information necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall and Paying Agent will be entitled to rely solely on such Officer’s Officers’ Certificate as conclusive proof that such payments are necessary. Wherever The Company will provide the Trustee and Paying Agent with documentation reasonably satisfactory to the Trustee and Paying Agent evidencing the payment of Additional Amounts.
(c) The Company will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant governmental authority on a timely basis in this Indentureaccordance with applicable law. As soon as practicable, the Notes or any guarantee Company will provide the Trustee and Paying Agent with an official receipt or, if official receipts are not obtainable, other documentation reasonably satisfactory to the Trustee and Paying Agent evidencing the payment of the Notes Taxes so withheld or deducted. Upon written request, copies of those receipts or other documentation, as the case may be, will be made available by the Trustee and Paying Agent to the Holders of the Notes.
(d) Whenever in the Indenture there is mention ofreferenced, in any context:
(1) , the payment of amounts based upon the principal amount of the Notes or of principal;
(2) redemption prices , interest or purchase prices in connection with a redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on under, or with respect to any of the Notes or any guarantee of to, the Notes; , such reference shall will be deemed to include payment of Additional Amounts as described under this Section 2.13 heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The Company will indemnify a Holder, within 10 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder to a governmental authority of a Specified Tax Jurisdiction, on or with respect to any payment by on or account of any obligation of the Company to withhold or deduct an amount on account of Taxes for which the Company would have been obligated to pay Additional Amounts hereunder and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant governmental authority. A certificate as to the amount of such payment or liability delivered to the Company by a Holder will be conclusive absent manifest error.
(f) The non-U.S. Payors Company will pay any present or future stamp, court court, issue, registration or documentary Taxes, taxes or any other exciseexcise or property taxes, property charges or similar Taxes levies that arise in any Relevant Taxing Specified Tax Jurisdiction from the execution, delivery, issuance, initial resale, enforcement or registration or enforcement of any the Notes, this the Indenture or any other document or instrument in relation thereto (other than a transfer thereof, or the receipt of any payments with respect to the Notes). The foregoing obligations , and the Company will survive indemnify the Holders for any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinsuch taxes paid by such Holders.
Appears in 1 contract
Sources: Second Supplemental Indenture (Star Bulk Carriers Corp.)
Additional Amounts. After (a) All payments made by the occurrence of Issuer, a Non-U.S. Domicile Transaction with respect to any Obligor successor entity or any successor in interest to an Obligor a Guarantor (each such Obligor or successorof the Issuer, a successor entity and Guarantor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or ) with respect to the Notes or any guarantee of the Notes will Guarantees, as applicable, shall be made free and clear of and without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levyassessments or government charges of whatever nature (including any penalties, impost, assessment or interest and other similar governmental charge additions relating thereto) (collectively, “Taxes”) ), unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any withholding or deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States Luxembourg or any political subdivision or governmental authority thereof or therein having power to tax;
(2) any jurisdiction from or through which payment on the Notes any such Note or any guarantee of the Notes Guarantee, as applicable, is made by or on behalf of a non-U.S. Payor, the relevant Payor or any political subdivision or governmental authority thereof or therein having the power to tax; or
(23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. the relevant Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1), (2) and (23), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made by or on behalf of a Payor with respect to the Notes any Note or any guarantee of the NotesGuarantee, including payments of principal, redemption price, interest or premium, if any, or interest, if any, the non-U.S. relevant Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder holders, the Trustee or the Paying Agent, as the case may be, after such withholding or deduction (including any such withholding or deduction or withholding from such Additional Amounts), will not be less than equal the amounts that which would have been received in respect of such payments on the Notes any such Note or the guarantees of the Notes Guarantee in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
(1i) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder holder or the beneficial owner of a Note (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, over the relevant Holderholder or beneficial owner, if such Holder the relevant holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership ownership, holding or holding disposition of such Notes Note or any guarantee of the Notes Guarantee or the enforcement or receipt of any payment or enforcement of rights in respect thereof;
(2ii) any Taxes that would not have been so are imposed or levied if withheld by reason of the Holder failure by the holder or the beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) a written request of the Payor addressed to the holder, after reasonable notice, to provide certification, information, documents or other evidence concerning the nationality, residence or identity of the holder or such beneficial owner or to make a any declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrelating to such matters, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable lawa statute, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from all or reduction in the rate part of deduction or withholding of, any such Taxes);
(3iii) any Taxes that are payable otherwise than by deduction or withholding from a payment of the principal of, premium, if any, or interest, if any, on or with respect to the Notes or any guarantee of the NotesGuarantee;
(4iv) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(5v) any Taxes that would not have been so withheld or deducted if the Note had been presented for payment (where presentation is permitted or required for payment) within 30 days after the relevant payment was first made available the holder of the Note (except to the extent that the holder would have been entitled to Additional Amounts had such Note been presented for payment on the last day of such 30-day period);
(vi) any Taxes imposed in connection with a Note presented for payment (where presentation is permitted or required for payment) by or on behalf of a Holder holder or beneficial owner who would have been able to avoid such Tax tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying AgentAgent in a member state of the European Union;
(6vii) any Taxes payable under Sections 1471 through 1474 where such withholding or deduction is required pursuant to section 1471(b) of the U.S. Internal Revenue Code of 1986 (as of amended) (the date of the Offering Memorandum “Code”) (or any amended or successor version that is substantively comparable and not materially more onerous comparable) or otherwise imposed pursuant to comply withsections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable), any current or future regulations or agreements thereunder, official interpretations thereof, or any agreements entered into pursuant similar law or regulation implementing an intergovernmental agreement between a non-U.S. jurisdiction and the United States related thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7viii) any combination of the above. Such .
(b) No Additional Amounts will also not shall be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for paid with respect to any payment to any holder who is a fiduciary or a partnership or other than the Holder (provided that notice sole beneficial owner of such payment is given to the Holders), except Notes to the extent that the Holder beneficiary or settlor with respect to such fiduciary, the member of such partnership or the beneficial owner or other of such Person Notes would not have been entitled to Additional Amounts had such beneficiary, settlor, member or beneficial owner held such Notes directly.
(c) Notwithstanding the foregoing, the limitations on presenting a Payor’s obligation to pay Additional Amounts set forth in exclusion (ii) of Section 2.13(a) will not apply if compliance with any certification, information, documentation, evidentiary or other reporting requirement described in such exclusion would be materially more onerous, in form, in procedure or in the Note for payment on any date during such 30-day period substance of information disclosed, to a holder or (y) where, had the beneficial owner of the a Note been the Holder of the Notethan comparable information or other reporting requirements imposed under U.S. tax law, regulations and administrative practice (such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses as IRS Forms W-8 and W-9).
(1d) to (7) inclusive above. The non-U.S. Payors will Payor shall (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will shall 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes Taxes, in such form as provided in the ordinary course by the Relevant Taxing Jurisdiction and as is reasonably available to the Payor and will provide such certified copies to the Trustee and the HoldersPaying Agents. If, notwithstanding Such copies shall be made available to the efforts holders upon reasonable request and will be made available at the offices of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. Paying Agents.
(e) If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notesany Note or Guarantee, at least 30 days prior to the date of such payment, the non-U.S. 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 holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall may deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof proof, without further inquiry, that such payments are necessary. .
(f) Wherever in this Indenture, the Notes or any guarantee of the Notes Indenture there is mention ofmentioned, 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 Notes or any guarantee of the Notes; Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under in this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(g) The non-U.S. Payors will Issuer shall pay any present or future stamp, issue, registration, court or documentary Taxestaxes, any other excise taxes or any other excise, property or similar Taxes taxes, charges or levies (including, in each case, any penalties, interest and other liabilities relating thereto) that arise in any Relevant Taxing Jurisdiction jurisdiction from the execution, delivery, issuanceregistration, initial resale, registration enforcement or enforcement making of any payments in respect of the Notes, this Indenture or any other document or instrument in relation thereto (other than thereto, excluding any such taxes imposed by any jurisdiction that is not a transfer Relevant Jurisdiction, except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a Default or Event of Default with respect to the Notes). The Issuer agrees to indemnify the holders for any such taxes paid by such holders. The foregoing obligations of this paragraph will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor the Issuer is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Additional Amounts. After Unless otherwise specified in any Board Resolution establishing the occurrence terms of Subordinated Debt Securities of a Non-U.S. Domicile Transaction series in accordance with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”)Section 3.01, all payments made by a non-U.S. Payor amounts of principal, and premium, if any, and interest, if any, on or with respect to the Notes or any guarantee series of the Notes Subordinated Debt Securities will be made without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) unless such withholding or deduction is required by law or paid by the interpretation of administration of law. If any Company without deduction or withholding for, or on account of, any Taxes imposed and all present and future income, stamp and other taxes, levies, imposts, duties, charges, fees, deductions or levied withholdings now or hereafter imposed, levied, collected, withheld or assessed by or on behalf of:
(1) any jurisdiction (other than of the United States Kingdom or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a the “Relevant Taxing Jurisdiction”), will unless such deduction or withholding is required by law. If deduction or withholding of any such taxes, levies, imposts, duties, charges, fees, deductions or withholdings shall at any time be required from any payments made with by the Taxing Jurisdiction, the Company will pay such additional amounts of, or in respect to of, the Notes or any guarantee of the Notesprincipal amount of, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay and interest, if any, on any series of Subordinated Debt Securities (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received paid to the Holders of Subordinated Debt Securities of the particular series, after such deduction or withholding, shall equal the respective amounts of principal, premium, if any, and interest, if any, which would have been payable in respect of such payments by the Holder after such withholding or deduction (including any Subordinated Debt Securities had no such deduction or withholding from such Additional Amounts), will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deductionrequired; provided, however, that no the foregoing will not apply to any such Additional Amounts will be payable for tax, levy, impost, duty, charge, fee, deduction or on account of:
(1) any Taxes that withholding which would not have been so imposed payable or levied due but for the existence fact that:
(i) the Holder or the beneficial owner of any present the Subordinated Debt Security is a domiciliary, national or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder resident of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a engaging in business or maintaining a permanent establishment in, or being is physically present in, the Relevant Taxing Jurisdiction) but excludingJurisdiction or otherwise has some connection with the Taxing Jurisdiction other than the holding or ownership of a Subordinated Debt Security, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt collection of any payment of (or in respect thereofof) principal of, premium, if any, or interest, if any, on any Subordinated Debt Security of the relevant series;
(2ii) any Taxes except in the case of a winding-up of the Company in the United Kingdom, the relevant Subordinated Debt Security is presented (where presentation is required) for payment in the United Kingdom;
(iii) the relevant Subordinated Debt Security is presented (where presentation is required) for payment more than 30 days after the date payment became due or was provided for, whichever is later, except to the extent that the Holder would not have been so imposed or levied if entitled to such Additional Amount on presenting (where presentation is required) the same for payment at the close of such 30 day period; or
(iv) the Holder or the beneficial owner of the Note had complied with a reasonable request relevant Subordinated Debt Security or the beneficial owner of any payment of (or in writing of the non-U.S. Payor (respect of) principal of, premium, if any, or interest, if any, on such request being made at a time that would enable such Holder acting reasonably Subordinated Debt Security failed to comply with that requesta request of the Company or its liquidator or other authorized person addressed to the Holder (x) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (y) to make a any declaration of nonresidence or any other similar claim or filing or to satisfy any certificationrequirement, identification, information or reporting requirement for exemption from, or reduction which in the rate ofcase of (x) or (y), withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption fromfrom all or part of such tax, assessment or reduction in the rate of deduction or withholding of, any such Taxes)other governmental charge;
(3v) any Taxes that are payable otherwise than by the withholding from or deduction is imposed on a payment to or for the benefit of an individual and is required to be made pursuant to European Council Directive 2003/48/EC on or with respect to the Notes taxation of savings income or any guarantee of the Noteslaw implementing or complying with, or introduced in order to conform to, such Directive;
(4vi) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note the relevant Subordinated Debt Security is presented for payment (where presentation is required required) for payment) payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax withholding or deduction by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due Subordinated Debt Security to another paying agent in a Member State of the European Union; or
(vii) any combination of subclauses (i) through (vi) above; nor shall Additional Amounts be paid with respect to the principal of, premium, if any, and first made available for interest on, the Subordinated Debt Securities to any Holder who is a fiduciary or partnership or settlor with respect to such fiduciary or a member of such partnership or other than the sole beneficial owner of such payment to the Holder (provided that notice extent such payment would be required by the laws of any Taxing Jurisdiction to be included in the income for tax purposes of a beneficiary or partner or settlor with respect to such fiduciary or a member of such payment is given to the Holders), except to the extent that the Holder partnership or a beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner who would not have been entitled to payment of such Additional Amounts by reason of any of clauses (1) to (7) inclusive aboveAmounts, had it been the Holder. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever Whenever in this Indenture, the Notes or any guarantee of the Notes Subordinated Debt Securities Indenture there is mention ofmentioned, in any context:
(1) , the payment of principal;
the principal (2and premium, if any) redemption prices or purchase prices interest, if any, on, or in connection with a redemption or purchase respect of, any Subordinated Debt Security of Notes;
(3) interest; or
(4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; series such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under provided for in this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise thereof pursuant to the provisions of this Section and as if express mention of the payment of Additional Amounts (if applicable) were made in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor provisions hereof where such express mention is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinnot made.
Appears in 1 contract
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments made by the Issuer, a non-U.S. Payor Successor Company or Guarantor (a “Payor”) on or with respect to the Notes or any guarantee of the Notes Note Guarantees will be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) Taxes unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the Grand Duchy of Luxembourg, the United States Kingdom or any political subdivision or governmental authority Governmental Authority thereof or therein having power to tax;
(2) any jurisdiction from or through which payment on the Notes any such Note or any guarantee of the Notes Note Guarantee is made by the Issuer, Successor Company, Guarantor or on behalf of a non-U.S. Payortheir agents, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax; or
(23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. the Payor that actually makes a payment on the Notes is incorporated or its guarantee of the Notes is organized organized, engaged in business for tax purposes or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax (each of clauses clause (1), (2) and (23), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes any Note or any guarantee of the NotesNote Guarantee, including payments of principal, redemption price, interest or premium, if any, or interest, the non-U.S. Payor will shall pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that which would have been received in respect of such payments on the Notes any such Note or the guarantees of the Notes Note Guarantee in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, over the relevant Holder, if such the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including including, but not limited to, being a citizen or resident or national or domiciliary of, or carrying on the existence of a business, a permanent establishment, a dependent agent, a place of business or maintaining a permanent establishment in, place of management present or being physically deemed present in, in the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes Note or any guarantee enforcement of the Notes rights hereunder or under a Note Guarantee or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so are imposed or levied if withheld by reason of the failure by the Holder or the beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) a written request of the Payor addressed to the Holder, after reasonable notice, to provide certification, information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of the Holder or such beneficial owners or to make a any declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrelating to such matters, or reduction in the rate of, withholding to which it is entitled (provided each case that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treatyregulation, regulation treaty or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from all or reduction part of such Tax; provided that in each case the rate of deduction Holder or withholding of, any such Taxes)beneficial owner is legally eligible to do so;
(3) any Taxes that are payable otherwise than by deduction or withholding from a payment on or with respect to the Notes or any guarantee of the NotesNote Guarantee;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes that are required to be deducted or withheld on a payment to an individual pursuant to the European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 or any law implementing or complying with, or introduced in order to conform to such directive;
(6) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 Agent in a member state of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); orEuropean Union;
(7) any Taxes imposed on or with respect to a payment to a Holder that is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment or Note, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment or Note 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 combination of the above. Such .
(b) Additional Amounts will also not be payable (x) if to the extent the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is requiredrequired for payment) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders)Holder, except for Additional Amounts with respect to the extent Taxes that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting imposed had the Holder presented the Note for payment on any date during within such 30-30 day period or (y) where, had the beneficial owner of the Note been the Holder, except for Additional Amounts with respect to Taxes that would have been imposed had the Holder of presented the NoteNote for payment within such 30-day period, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) 8) inclusive above. , but only if there is no material cost or legal restriction associated with transferring the Note to such beneficial owner.
(c) The non-U.S. Payors will Payor shall (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will shall 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes Taxes, in such form as provided in the ordinary course by the Relevant Taxing Jurisdiction and will as is reasonably available to the Company, and shall provide such certified copies to the Trustee Trustee. Such copies shall be made available to the Holders upon request and shall be made available at the Holdersoffices of the Paying Agent. If, notwithstanding The Payor shall attach to each certified copy a certificate stating (x) that the efforts 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 non-U.S. Payor to obtain such receipts, withholding Taxes paid per £1,000 principal amount of the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. Notes.
(d) If any non-U.S. Payor will becomes aware that it shall be obligated to pay Additional Amounts under or with respect to any payment made on the Notesany Note or Note Guarantee, at least 30 days prior to the date of such payment, the non-U.S. Payor will shall 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 relevant payment date (unless such obligation to pay Additional Amounts arises arises, or Payor becomes aware of such obligation, less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall may deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate without further inquiry, as conclusive proof that such payments are necessary. .
(e) Wherever in this Indenture, Indenture or the Notes or any guarantee of the Notes Note Guarantees there is mention ofare mentioned, in any context:
(1) the payment of principal;
(2) purchase or redemption prices or purchase prices in connection with a purchase or redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; , such reference shall be deemed to include payment of Additional Amounts as described under pursuant to this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(f) The non-U.S. Payors will Payor shall pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture Indenture, the Proceeds Loan Agreement, the Intercreditor Agreement, the Security Documents or any other document or instrument in relation thereto (other than a transfer or exchange of the Notes). ) excluding any such Taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction.
(g) The foregoing obligations of this Section 2.13 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor the Issuer or any Guarantor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Encore Capital Group Inc)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor on the Company and the Guarantors under or with respect to the Notes or any guarantee of and the Notes Guarantees will be made free and clear of and without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levyassessments, impostlevies, assessment imposts or other governmental charges of similar governmental charge nature (collectivelyincluding penalties, interest and other liabilities related thereto) (collectively “Taxes”) ), unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of or administration of lawthereof. If In the event that any withholding or deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of (1i) any jurisdiction (other than the United States Kingdom or any other jurisdiction in which the Company or any of the Guarantors are organized or incorporated, engaged in business, resident for tax purposes or generally subject to tax on a net income basis, or any political subdivision or governmental any taxing authority thereof or situated therein having power to taxor (ii) any jurisdiction from or through which any payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payorthe Company or any of the Guarantors (including, without limitation, the jurisdiction of any Paying Agent) or any political subdivision or governmental any taxing authority thereof or situated therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Tax Jurisdiction”), will ) is at any time so required to be required made from any payments made by the Company or any of the Guarantors under or with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if anyGuarantees, the non-U.S. Payor will Company shall pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be that are necessary in order that the net amounts received in respect of such payments by each Holder of the Holder Notes (after such withholding or deduction (including any such deduction or withholding from of such Taxes, including any deduction or withholding of such Taxes with respect to such Additional Amounts), will not be less than ) shall equal the respective amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of had no such withholding or deduction; provided, however, that no deduction of such Additional Amounts will be payable for or on account of:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. the Payor on or with respect to the Notes or any guarantee of the Notes Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of (1) any jurisdiction (other than in which the United States 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 (2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes Guarantees is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposesmade, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1) and (2), a “Relevant Taxing Jurisdiction”), will 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 of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or any guarantee of the NotesGuarantees, including including, without limitation, payments of principal, redemption priceRedemption Price, interest or premium, if any, the non-U.S. Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any Taxes that would not have been so imposed or levied but by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or Beneficial Owner who is liable for such Taxes in respect of the existence Notes by reason of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partnermember, member partner or shareholder of, or possessor of power over, over the relevant Holder, if such the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the or Beneficial Owner having any present or former connection with such Relevant Taxing Jurisdiction (including including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the such Relevant Taxing Jurisdiction) but excluding, in each case, any other than a connection arising solely from the acquisition, ownership or holding of such Notes Note or any guarantee enforcement of rights thereunder or the receipt of payments in respect of the Notes or the enforcement or receipt of with respect to any payment in respect thereofGuarantee;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note or Beneficial Owner had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence non-residence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that (x) such declaration of nonresidence non-residence or other claim, claim or filing or requirement for exemption is required by the applicable law, treaty, regulation or official administrative practice law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption fromfrom the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or reduction Beneficial Owner at that time has been notified in writing by the rate Payor or any other person through whom payment may be made that a declaration of deduction non-residence or withholding of, any such Taxesother claim or filing for exemption is required to be made);
(3) except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);
(4) any Note presented for payment (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 during such 30 day period);
(5) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to the Notes or any guarantee of the NotesGuarantee;
(46) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(57) any Taxes a Tax imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner Beneficial Owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting accept payment from, another Paying Agentpaying agent in a member state of the European Union;
(6) 8) any Taxes payable under imposed, deducted or withheld pursuant to Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code Code, in each case, as of the issue date of the Offering Memorandum (or and any amended or successor version that is substantively comparable and not materially more onerous to comply withcomparable), ; any current or future regulations or agreements thereunder, official interpretations thereofthereof or any law implementing an intergovernmental agreement relating thereto; or any treaty, any agreements entered into pursuant theretolaw, and any intergovernmental agreements implementing the foregoing (including any legislation regulation or other official guidance relating enacted in any other jurisdiction, facilitating implementation thereof;
(9) all United States backup withholding taxes;
(10) any Tax deducted, withheld or imposed in connection with the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021), as amended from time to such intergovernmental agreements)time; or
(711) any combination of the clauses (1) through (10) above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner Beneficial Owner of the Note been the Holder of the Note, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (711) inclusive above. The non-U.S. Payors Upon request, the Issuer will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted provide the full amount deducted or withheld Trustee with documentation satisfactory to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and documentation will provide such certified copies be made available to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinupon request.
Appears in 1 contract
Sources: Indenture (Smurfit Kappa Acquisitions Unlimited Co)
Additional Amounts. After (a) All amounts payable (whether in respect of principal, redemption amount, interest or otherwise) in respect of the occurrence Securities of a Non-U.S. Domicile Transaction with respect to any Obligor series and the related Guarantee by the Issuer or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or with respect to the Notes or any guarantee of the Notes Guarantor will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of the Kingdom of Spain or any political subdivision thereof or any authority or agency therein or thereof having power to tax, dutyunless the withholding or deduction of such taxes, levyduties, impost, assessment assessments or other similar governmental charge (collectively, “Taxes”) unless charges is required by law. In the event that such withholding or deduction is required by law law, unless otherwise specified in any Board Resolution or other appropriate corporate authorization of the Issuer or the Guarantor establishing the terms of Securities of a series or the Guarantees relating thereto in accordance with Section 2.1, the Issuer or the Guarantor shall pay such Additional Amounts as will result in receipt by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect Holders of such payments series of Securities of such amounts as would have been received by the Holder after them had no such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deductionrequired; provided, however, that no such the Issuer and the Guarantor will not be required to pay any Additional Amounts will be payable for or on account ofin respect of any Security of a series:
(1i) any Taxes that would not have been so imposed to a Holder of such Security who is liable for such taxes, duties, assessments or levied but for the existence governmental charges in respect of any present or former connection between the relevant Holder such Security by reason of it (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor the Beneficial Owner for whose benefit it holds such Security) having some connection with the Kingdom of power over, Spain other than the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or mere holding of such Notes Security (or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxesbeneficial interest);
(3ii) any Taxes that are payable otherwise than by withholding from to a payment on Holder of such Securities in respect of whom the Issuer or with respect to the Notes Guarantor does not receive such information (which may include a tax residence certificate) concerning such Holder’s identity and tax residence (or any guarantee the identity and tax residence of the NotesBeneficial Owner for whose benefit it holds such Security) as it may require in order to comply with Law 13/1985 of May 25 (as amended by Law 19/2003 of July 4, Law 23/2005 of November 18 and Law 4/2008 of December 23), Royal Decree 1065/2007 of July 27 and any implementing legislation or regulation;
(4iii) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required) more than 30 days after the Relevant Date (as defined below), except to the extent that the relevant Holder would have been entitled to such Additional Amounts on presenting the same for payment on the expiry of such period of 30 days;
(iv) where the withholding or deduction is imposed on a payment to or for the benefit of 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 or any law implementing or complying with, or introduced in order to conform to, such Directives;
(v) presented for paymentpayment (where presentation is required) by or on behalf of a Holder (or beneficial owner Beneficial Owner) who would have been able to avoid such Tax withholding or deduction by presenting the relevant Note to, or otherwise accepting payment from, Security to another Paying Agentpaying agent in a Member State of the European Union;
(6vi) any Taxes payable under Sections 1471 through 1474 to or for the benefit of individuals resident for tax purposes in the Code as Kingdom of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements)Spain; or
(7vii) any combination to or for the benefit of a Spanish-resident legal entity subject to Spanish Corporate Income Tax if (a) the Spanish corporate resident entity fails to identify itself as such to the Issuer and the Guarantor in accordance with article 59.q) or 59.s) of the above. Such Corporate Income Tax Regulations approved by Royal Decree 1777/2004 of July 30 or (b) the Spanish tax authorities determine that the Securities of such series do not comply with exemption requirements specified in the Reply to a Consultation of the Directorate General for Taxation (Dirección General de Tributos) dated July 27, 2004 or otherwise and require a withholding to be made; provided further that Additional Amounts in respect of the Securities of a series will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for paid with respect to any payment to the a Holder (provided that notice of any Securities of such payment series who is given to a fiduciary, a partnership, a limited liability company or other than the Holders)sole Beneficial Owner of that payment, except to the extent that payment would be required by the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner laws of the Note been Kingdom of Spain (or any political subdivision thereof or any authority or agency therein or thereof having power to tax) to be included in the Holder income, for tax purposes, of a beneficiary or settlor with respect to the Notefiduciary, such beneficial owner a member of that partnership, an interest holder in that limited liability company or a Beneficial Owner who would not have been entitled to payment of the Additional Amounts by reason had it been the Holder. For the purposes of Section 10.4(a)(iii) above, the “Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of clauses the moneys payable has not been received by the Paying Agent on or prior to such due date, it means the first date on which the full amount of such moneys having been so received and being available for payment to Holders, notice to that effect shall have been duly given to the Holders in accordance with this Indenture.
(1b) The foregoing provisions shall apply mutatis mutandis to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit for or cause to be remitted the full amount deducted on account of any present or withheld future taxes, assessments or governmental charges of whatever nature of any jurisdiction in which any successor Person to the relevant Issuer or the Guarantor, as the case may be, is organized, or any political subdivision or taxing authority of the Relevant Taxing Jurisdiction thereof or therein, subject to exceptions equivalent to those set forth in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies Section 10.4(a) above.
(c) Subject to the Trustee and the Holders. Ifforegoing provisions, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever whenever in this Indenture, the Notes or any guarantee of the Notes Indenture there is mention ofmentioned, in any context:
(1) , the payment of principal;
(2) redemption prices or purchase prices in connection with a redemption or purchase the principal of Notes;
(3) interest; or
(4) any other amount payable on or with respect to any of the Notes or any guarantee premium or interest on, or in respect of, any Security of any series or the Notes; net proceeds received on the sale or exchange of any Security of any series, such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under provided for in this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise thereof pursuant to the provisions of this Section and express mention of the payment of additional amounts (if applicable) in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument provisions hereof shall not be construed as excluding additional amounts in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor those provisions hereof where such express mention is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinnot made.
Appears in 1 contract
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor on the Company under or with respect to the Notes or any guarantee of the Notes Securities will be made free and clear of and without withholding or deduction for, for or on account of, of any present or of future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of any Taxing Authority within the Netherlands, or within any other jurisdiction in which the Company is organized or is otherwise resident for tax purposes or any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2)each, a “"Relevant Taxing Jurisdiction”"), will at unless the Company is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If the Company is required to withhold or deduct any time be required amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payments payment made under or with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if anySecurities, the non-U.S. Payor Company will pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order so that the net amounts amount received in respect by each holder of such payments by the Holder Securities (including Additional Amounts) after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the amounts that amount the holder would have received if such Taxes had not been received in respect of such payments on the Notes withheld or the guarantees of the Notes in the absence of such withholding or deductiondeducted; provided, however, that no such Additional Amounts will be payable for or on account of:
(1) with respect to any Taxes Tax that would not have been so imposed imposed, payable or levied due (i) but for the existence of any present or former connection between the relevant Holder holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder the beneficial owner of, or possessor of power overperson ultimately entitled to obtain an 50 -44- interest in, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporationSecurities) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, in the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than the acquisition, ownership or mere holding of such Notes the Securities or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof;
therefrom; (2ii) any Taxes that would not have been so imposed or levied if but for the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably failure to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence identification or other claim, filing or requirement is required reporting requirements whether imposed by the applicable lawstatute, treaty, regulation or official administrative practice of practice, provided, however, that the Relevant Taxing Jurisdiction as Company has delivered a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect request to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous holder to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to with such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, requirements at least 30 days prior to the date by which such compliance is required; or (iii) if the presentation of Securities (where presentation is required) for payment has occurred within 30 days after the date such paymentpayment was due and payable or was duly provided for, the non-U.S. Payor will deliver to the Trustee an Officer’s Certificate stating the fact that whichever is later. In addition, Additional Amounts will not be payable and with respect to any Tax which is payable otherwise than by withholding from payments of, or in respect of principal of, or any interest on, 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 (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date)Securities. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever Whenever in this Indenture, the Notes or any guarantee of the Notes Indenture there is mention ofmentioned, in any context:
(1) , the payment of amounts based upon the principal amount of the Securities or of principal;
(2) redemption prices , interest or purchase prices in connection with a redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on under or with respect to any of the Notes or any guarantee of the Notes; Securities, such reference mentioned shall be deemed to include mention of the payment of Additional Amounts 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. Upon request, the Company will provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts. The non-U.S. Payors Company will pay any present or future stamp, court or documentary Taxestaxes, or any other exciseexcise or property taxes, property charges or similar Taxes that levies, which arise in any Relevant Taxing Jurisdiction jurisdiction from the execution, delivery, issuance, initial resale, delivery or registration or enforcement of any Notes, this Indenture the Securities or any other document or instrument in relation thereto (other than a transfer referred to therein, or the receipt of any payments with respect to the Notes). Securities, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside of The foregoing obligations will survive any terminationNetherlands, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor the Company is organized or is otherwise considered to be a resident for tax purposes purposes, the United States of America or any political subdivision jurisdiction in which a Paying Agent is located, but not excluding those resulting from, or taxing authority required to be paid in connection with, the enforcement of the Securities or agency thereof any other such document or therein.instrument following the occurrence of any Event of Default with respect to the Securities. ARTICLE FIVE
Appears in 1 contract
Additional Amounts. After (a) At least 10 days prior to the occurrence first date on which payment of a Non-U.S. Domicile Transaction with respect principal, premium, if any, or interest on the Notes is to be made, and at least 10 days prior to any Obligor or subsequent such date if there has been any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or change with respect to the Notes matters set forth in the Officers' Certificate described in this Section 4.20, the Company will furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers' Certificate instructing the Trustee and the Paying Agent whether such payment of principal, premium, if any, or any guarantee of interest on the Notes will (whether or not in the form of Definitive Notes) and under the Subsidiary Guarantee shall be made to the Holders without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “"Taxes”") unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of (1) any jurisdiction (other than Luxembourg, the United States States, Ireland or any political subdivision or governmental authority of any thereof or therein having power to tax, (2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payormade, or any political subdivision or governmental authority thereof or therein having the power to tax; or
tax or (23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. the Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1), (2) and (23), a “"Relevant Taxing Jurisdiction”"), unless the withholding or deduction of Taxes is then required by law.
(b) If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction will at any time be required from any payments made with respect to the Notes or any guarantee of under the NotesSubsidiary Guarantees, including payments of principal, redemption price, interest interest, premium or premiumLiquidated Damages, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts pursuant to paragraph 3 of the Initial Notes and paragraph 2 of the Exchange Notes, as applicable (the “"Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder after such withholding or deduction (including any such deduction or withholding from such Additional Amounts"), will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:.
(1c) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. The Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to each Holder. The Payor will attach to each certified copy a certificate stating (x) that the Trustee 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 Holders. If, notwithstanding the efforts amount of such non-U.S. Payor to obtain withholding Taxes paid per $1,000 principal amount of the Notes. Copies of such receipts, documentation will be available for inspection during ordinary business hours at the same are not obtainable, office of such non-U.S. Payor will provide the Trustee and by the Holders with other reasonable evidence. If any non-U.S. Payor of the Notes upon request and will be obligated to pay Additional Amounts under or with respect to any payment made on available at the Notes, at least 30 days prior to the date offices of such payment, the non-U.S. 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 located in Luxembourg if the Notes are then listed on the relevant payment date Luxembourg Stock Exchange.
(unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. d) Wherever in this Indenture, the Notes Indenture or any guarantee of the Notes there is mention ofare mentioned, in any context:
, (1i) the payment of principal;
, (2ii) redemption prices or purchase prices in connection with a redemption or purchase of Notes;
, (3iii) interest; or
interest or (4iv) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; , such reference shall be deemed to include payment of Additional Amounts as described under this Section 2.13 Indenture and the Notes to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(e) The non-U.S. Payors will pay Company shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any present loss, liability or future stamp, court expense incurred without negligence or documentary Taxes, bad faith on their part arising out of or in connection with actions taken or omitted by any other excise, property or similar Taxes that arise of them in reliance on any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, Officers' Certificate furnished to them pursuant to this Indenture or any other document or instrument in relation thereto Section 4.20.
(other than a transfer of the Notes). The foregoing obligations f) Obligations under this Section 4.20 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinIndenture.
Appears in 1 contract
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments and deliveries made by a non-U.S. Payor on or the Company with respect to the Notes or any guarantee Notes, including, but not limited to, payments of principal (including, if applicable, the Notes will Redemption Price and the Fundamental Change Repurchase Price), payments of Special Interest, if any, and payments of cash and/or deliveries of Ordinary Shares (together with payments of cash in lieu of fractional Ordinary Shares) upon conversion, shall be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levyassessments or governmental charges of whatever nature imposed, impostlevied, assessment collected, withheld or other similar governmental charge (collectively, “Taxes”) unless such withholding assessed by or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding forwithin Israel, or on account of, any Taxes imposed other jurisdiction in which the Company is or levied by is deemed to be organized or on behalf of:
(1) any jurisdiction (other than the United States resident for tax purposes or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes payments or any guarantee of the Notes is made deliveries by or on behalf of a non-U.S. Payor, the Company with respect to the Notes are made or deemed made or by or within any political subdivision or governmental authority thereof or any taxing authority therein or thereof having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2)each, a “Relevant Taxing Jurisdiction”), will at unless such withholding or deduction is required by law. In the event that any time such taxes, duties, assessments or governmental charges imposed or levied by or on behalf of a Relevant Taxing Jurisdiction are required to be required withheld or deducted from any payments or deliveries made with respect to by the Notes Company or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if anyPaying Agent, the non-U.S. Payor will Company shall pay (together with such payments) to each Holder such additional amounts (the “Additional Amounts”) as may be necessary in order to ensure that the net amounts amount received in respect of such payments by the Holder after such withholding or deduction (including and after deducting any such deduction or withholding from such taxes on the Additional Amounts), will not be less than ) shall equal the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of had no such withholding or deductiondeduction been required; provided, however, provided that no such Additional Amounts will shall be payable payable:
(i) for or on account of:
(1A) any Taxes tax, duty, assessment or other governmental charge that would not have been so imposed but for:
(1) (I) except solely with respect to any Israeli taxes withheld or levied but deducted from payments of Special Interest, if any, on a Note, the Holder or beneficial owner of such Note being (x) an Israeli resident for Israeli tax purposes or is otherwise subject to tax in Israel due to having permanent establishment or other nexus to Israel or (y) a non-Israeli corporation, for which Israeli residents (i) have a controlling interest of more than 25% in such non-Israeli corporation or (ii) are the beneficiaries of, or are entitled to, 25% or more of the revenues or profits of such non-Israeli corporation (whether directly or indirectly), or (II) in the case of a Relevant Taxing Jurisdiction other than Israel, the existence of any present or former connection between the relevant Holder or beneficial owner of such Note (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant HolderHolder or beneficial owner, if such the relevant Holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen Jurisdiction, other than merely holding or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of enforcing rights under such Notes or any guarantee of the Notes Note or the enforcement or receipt of any payment in respect thereofpayments thereunder;
(2) any Taxes the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of (x) the date on which such payment or delivery first becomes due and (y) the date on which payment or delivery thereof is duly provided, except to the extent that the Holder or beneficial owner or such other person would not have been so imposed entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period; or
(3) except solely with respect to any Israeli taxes withheld or levied deducted from payments of Special Interest, if any, on a Note, the failure of the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably or beneficial owner to comply with that request) a timely request from the Company to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence (including a “Declaration of Status for Israeli Income Tax Purposes” by such Holder or beneficial owner confirming eligibility for an exemption from Israeli Capital Gain Tax), identity or connection with the Relevant Taxing Jurisdiction, or to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided or satisfy any other reasonable reporting requirement relating to such matters, if and to the extent that the Holder or beneficial owner is legally able to comply with such declaration of nonresidence or other claim, filing or requirement request and due and timely compliance with such request is required by the applicable lawstatute, treaty, regulation regulation, specific tax ruling or official administrative practice of the Relevant Taxing Jurisdiction in order to reduce or eliminate any withholding or deduction as a precondition to exemption from, which Additional Amounts would have otherwise been payable to such Holder or reduction in the rate of deduction or withholding of, any such Taxes)beneficial owner;
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4B) any estate, inheritance, gift, use, sales, transfer, excise, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(5C) any Taxes tax, duty, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments under or with respect to the Notes;
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (“FATCA”), any current or future U.S. Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement the foregoing or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA;
(E) any tax, assessment or other governmental charge imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax tax, assessment or governmental charge by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;; or
(6F) any Taxes payable under Sections 1471 through 1474 combination of taxes referred to in the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply withpreceding clauses (A), any current or future regulations or official interpretations thereof(B), any agreements entered into pursuant thereto(C), (D) and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements(E); or
(7ii) with respect to any combination payment of the above. Such Additional Amounts will also not be payable principal of (xincluding the Redemption Price and the Fundamental Change Repurchase Price, if applicable) and Special Interest on such Note, if any, or the payment could have been made without such deduction or withholding if the beneficiary of the cash and/or delivery of Ordinary Shares (together with payment had presented the Note for payment (where presentation is requiredof cash in lieu of fractional Ordinary Shares) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice upon conversion of such Note to any Person who is a fiduciary, partnership or Person other than the sole beneficial owner of that payment is given to the Holders), except to the extent that such payment would be required to be included in the Holder income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a partner or member of that partnership or a beneficial owner or other such Person would have been entitled to Additional Amounts on presenting who the Note for payment on any date during such 30-day period or (y) where, had Company knows at the beneficial owner time of the Note been the Holder of the Note, such beneficial owner payment or delivery would not have been entitled to payment of such Additional Amounts by reason of any of clauses (1) to (7) inclusive abovehad that beneficiary, settlor, partner, member or beneficial owner been the Holder thereof. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted Notwithstanding the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receiptsforegoing, the same are not obtainable, such non-U.S. Payor will provide limitations on the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated Company’s obligation to pay Additional Amounts set forth in Section 4.10(a)(i)(A)(3) shall not apply if the provision of any certification, identification, information, documentation or other reporting requirement described in Section 4.10(a)(i)(A)(3) would be materially more onerous, in form, in procedure or in substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulations and administrative practice (such as U.S. Internal Revenue Service Forms W-8BEN-E and W-9), provided that for the avoidance of doubt, the provision of a “Declaration of Status for Israeli Income Tax Purposes” by a Holder or beneficial owner of a Note shall not be considered materially more onerous than comparable information or other reporting requirements under U.S. tax law, regulations and administrative practice (such as U.S. Internal Revenue Service Forms W-8BEN-E and W-9). For the avoidance of doubt, no Holder or beneficial owner of a Note shall have any obligation to establish eligibility for a reduced withholding tax rate under any income tax treaty in order to receive Additional Amounts.
(b) If the Company is required to make any deduction or withholding from any payments or deliveries with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor Company will deliver to the Trustee an Officer’s Certificate stating official tax receipts evidencing 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 (unless such obligation to pay Additional Amounts arises less than 45 days prior remittance to the relevant payment date, in which case tax authorities of the non-U.S. Payor shall deliver amounts so withheld or deducted. Copies of such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee receipts shall be entitled made available to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee Holders of the Notes upon request.
(c) Whenever there is mention of, mentioned in any context:
(1) context the payment of principal;
principal of (2including the Redemption Price and the Fundamental Change Repurchase Price, if applicable), the payment of Special Interest, if any, on, or the payment of cash and/or the delivery of Ordinary Shares (together with payment of cash in lieu of fractional Ordinary Shares) redemption prices upon conversion of any Note 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 Notes or any guarantee of the Notes; such reference Note, such mention shall be deemed to include payment of Additional Amounts as described under provided for in this Section 2.13 Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(d) The non-U.S. Payors will Company shall promptly pay when due any present or future stamp, court or documentary Taxes, taxes or any other exciseexcise or property taxes, property charges or similar Taxes levies that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, delivery or registration or enforcement of any Notes, this Indenture each Note or any other document or instrument in relation thereto (other than referred to herein or therein, except for taxes, charges or similar levies resulting from a transfer of Notes that occurs after the Notesinitial sale by the Initial Purchasers and except as provided in Section 2.06, Section 14.02(d) and Section 14.02(e). The foregoing obligations will survive any termination.
(e) All payments and deliveries made under or with respect to the transactions contemplated herein are exclusive of VAT and, defeasance accordingly, if VAT is or discharge of this Indenture and will apply mutatis mutandis becomes due, then the Company must pay all such VAT to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for the relevant tax purposes or any political subdivision or taxing authority or agency thereof or thereinauthorities.
Appears in 1 contract
Additional Amounts. After All payments (including PIK Payments and any premium paid upon redemption of the occurrence Notes) by or on behalf of the Issuer or a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or with respect to of the Notes or by or on behalf of any guarantee Guarantor or a successor in respect of the Notes Note Guarantees will be made free and clear of, and without withholding or deduction for, for or on account of, any present or future taxtaxes, dutyduties, levyassessments, impost, assessment or other similar governmental charge charges of whatever nature (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than of Brazil, the United States or any political subdivision authority therein or governmental authority thereof or therein having power to taxany other jurisdiction in which the Issuer or the Guarantors (or, in each case, their successor) are organized or doing business or from or through which payment on payments are made in respect of the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. PayorNote Guarantees, or any political subdivision or governmental taxing authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), aforementioned being a “Relevant Taxing Jurisdiction”), unless the Issuer or the Guarantors (or their respective successor) or any paying agent is compelled by law to deduct or withhold such taxes, duties, assessments, or governmental charges. If the Issuer, a Guarantor or a paying agent is compelled by law to make such deduction or withholding, the Issuer or the Guarantors (or their respective successor) will at any time be required from any payments made with respect make such deduction or withholding, make payment of the amount so withheld to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will appropriate Governmental Authority and pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order to ensure that the net amounts received in respect by registered Holders of such payments by the Holder Notes after such withholding or deduction shall equal the respective amounts of principal and interest (including any such deduction or withholding from such Additional Amounts), will not other amounts stated to be less than payable under or in respect of the amounts that Notes) which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provideddeduction (“Additional Amounts”). Notwithstanding the foregoing, however, that no such Additional Amounts will shall be payable for or on account ofpayable:
(1i) any to, or to a third party on behalf of, a Holder who is liable for such Taxes that would not have been so imposed or levied but for in respect of such Note by reason of the existence of any present or former connection between the relevant such Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant such Holder, if such Holder is an estate, nominee, a trust, a partnership, limited liability company or a corporation) and the Relevant relevant Taxing Jurisdiction Jurisdiction, including, without limitation, such Holder (including or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or national ofbeing or having been engaged in a trade or business or present therein or having, or carrying on a business or maintaining having had, a permanent establishment intherein, or being physically present in, other than the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or mere holding of such Notes the Note or any guarantee enforcement of rights under the Notes or Indenture and the enforcement or receipt of any payment in payments with respect thereofto the Note;
(2ii) any in respect of Taxes that would not have been so imposed withheld or levied deducted if the Note had been surrendered or presented for payment (if surrender or presentment is required) not more than 30 days after the Relevant Date except to the extent that payments under such Note would have been subject to withholdings and the Holder of such Note would have been entitled to such Additional Amounts, on surrender of such Note for payment on the Note had complied with last day of such period of 30 days;
(iii) to, or to a reasonable request in writing third party on behalf of, a Holder who is liable for such Taxes by reason of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably Holder’s failure to comply (to the extent it is legally eligible to do so) with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information documentation or other reporting requirement for concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of such Holder, if (1) compliance is required by law or an applicable income treaty as a precondition to, exemption from, or reduction in the rate of, withholding the Tax, and (2) the Issuer has given the Holders at least 30 days’ notice that Holders will be required to which it is entitled (provided that provide such declaration of nonresidence certification, identification, documentation or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes)requirement;
(3iv) any Taxes that are payable otherwise than by withholding from a payment on or with in respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, excise or personal property or similar TaxesTax, other than as provided in Section 4.06(i) of the Indenture;
(5v) in respect of any Tax which is payable other than by deduction or withholding from payments under or with respect to the Note or any Note Guaranty; or
(vi) in respect of any combination of the above. Notwithstanding anything to the contrary in this Paragraph 6, none of the Issuer, the Guarantors, their respective successors, the Paying Agent or other person shall be required to pay any Additional Amounts with respect to any payment in respect of any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as of amended (the date of the Offering Memorandum (“Code”) or any amended successor law or successor version that is substantively comparable and not materially more onerous regulation implementing or complying with, or introduced in order to comply with)conform to, such sections or any current intergovernmental agreement or future regulations or official interpretations thereof, imposed pursuant to any agreements agreement entered into pursuant theretoto section 1471(b)(1) of the Code. No Additional Amounts shall be paid with respect to any payment on a Note to a Holder who is a fiduciary, and any intergovernmental agreements implementing the foregoing (including any legislation a partnership, a limited liability company or other official guidance relating to such intergovernmental agreements); or
(7) any combination than the sole beneficial owner of the above. Such Additional Amounts will also not be payable (x) if the that payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that payment would be required by the Holder relevant Taxing Jurisdiction to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership, an interest holder in a limited liability company or a beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner who would not have been entitled to payment of the Additional Amounts had that beneficiary, settlor, member or beneficial owner been the Holder. Payments on the Notes are subject in all cases to any applicable tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above, neither the Issuer nor the Guarantors shall be required to pay Additional Amounts with respect to any Tax imposed by reason any government or a political subdivision or taxing authority thereof or therein. Each of the Issuer and the Guarantors (or their successors) will pay any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause Taxes required to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld pursuant to applicable law and furnish to the relevant taxing authority of Holders, within 60 days after the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain date such payment is due, either certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide payment, or, if such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same receipts are not obtainable, other evidence of such non-U.S. Payor will provide payments reasonably satisfactory to the Trustee and Holders. In the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay event that Additional Amounts under or actually paid with respect to any payment made the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, at least 30 days prior and, as a result thereof such Holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the date of such payment, Issuer. Any reference in the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, Indenture or the Notes to principal, interest or any guarantee of the Notes there is mention of, 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 in respect of the Notes by the Issuer or the Note Guarantees by the Guarantors (or their successors) will be deemed also to refer to any Additional Amount, unless the context requires otherwise, that may be payable with respect to any of that amount under the Notes or any guarantee of the Notes; such reference shall be deemed obligations referred to include payment of Additional Amounts as described under in this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofParagraph 6. The non-U.S. Payors Issuer or the Guarantors, as applicable, will pay when due any present or future stamp, transfer, court or documentary Taxes, taxes or any other excise, excise or property taxes or any other similar Taxes that arise in and any Relevant penalties, additions to tax or interest due with respect thereto imposed by any Taxing Jurisdiction from (or any political subdivision or Governmental Authority thereof or therein having power to tax) with respect to the initial execution, delivery, issuance, initial resale, delivery or registration or enforcement of any the Notes, this Indenture or the subsequent performance, redemption or retirement of the Notes or any other document or instrument in relation thereto (other than a transfer relating thereto. The obligations of the Notes). The foregoing obligations Issuer and the Guarantors pursuant to this Paragraph 6 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized the Indenture, payment of the Notes and/or resignation or otherwise considered to be a resident for tax purposes removal of the Trustee or any political subdivision or taxing authority or agency thereof or thereinthe Paying Agent.
Appears in 1 contract
Sources: Indenture (Azul Sa)
Additional Amounts. After Additional Amounts shall be payable in respect of the occurrence Notes pursuant to Section 10.4 of a Non-U.S. Domicile Transaction with respect to any Obligor the Base Indenture. Solely for purposes of the Notes, Section 10.4 of the Base Indenture is hereby replaced in its entirety as follows: “All payments made by or any successor in interest to an Obligor on behalf of the Issuer or the Guarantors (each such Obligor or successoreach, a “non-U.S. Payor”), all payments made by a non-U.S. Payor ) on or with respect to the Notes or any guarantee of the Notes Guarantee will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “Taxes”) unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes Guarantee is made by or on behalf of a non-U.S. Payormade, or any political subdivision or of governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is incorporated, 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 of clauses clause (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption priceRedemption Price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by each Holder of the Holder Notes, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1a) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlorsenior, beneficiary, partnerpartner of, member or shareholder of, or possessor of power over, over the relevant Holder, if such the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being or having been a citizen or citizen, resident or treated as a resident or a national of, thereof or being or having been present or engaged in a trade or carrying on a business in, or maintaining having had a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than by the acquisition, mere ownership or holding of such Notes or enforcement of rights thereunder or under any guarantee of the Notes Guarantee or the enforcement or receipt of any payment payments in respect thereof;
(2b) any Taxes that would not have been so to the extent such Taxes are imposed or levied if required to be withheld by reason of the failure of a Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably Notes to comply with that request(x) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrequirement, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is whether required by the applicable lawstatute, treaty, regulation or official administrative practice of the a Relevant Taxing Jurisdiction 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 a certification that the Holder is not resident in the Relevant Taxing Jurisdiction) (provided that at least 30 days prior to the first payment date with respect to which such withholding, deduction or imposition is required under the applicable law of the Relevant Taxing Jurisdiction, the relevant Holder at that time has been notified (in the manner contemplated by the Indenture) by the Payor or any other person through whom payment may be made of such Taxescertification, identification, information or other reporting requirement); or (y) any requirement under U.S. tax laws and regulations to establish any entitlement to a partial or complete exemption from such Taxes to which such Holder is legally eligible (including, but not limited to, by providing Internal Revenue Service Form W-8BEN, Form W-8BEN-E, Form W-8ECI, as applicable, or any subsequent versions thereof or successor thereto);
(3c) any Taxes, to the extent such Taxes were imposed as a result of a note being presented for payment (where Notes are legended Notes in certificated form 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 such note been presented during such 30-day period);
(d) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the NotesGuarantee;
(4e) any estate, inheritance, gift, salessale, transfer, excise, transfer, personal property or similar tax, assessment or other governmental charge;
(f) any Taxes imposed on or with respect to any payment by the Issuer or the Guarantors to the Holder if such Holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, to the extent that Taxes would not have been imposed on such payment had such beneficial owner been the sole Holder of such Note;
(g) any Taxes imposed or required to be withheld by the United States, any state thereof or the District of Columbia (or any political subdivision of or governmental authority in any such state or the District of Columbia having the power to tax) by reason of a Holder:
(i) owning or having owned, directly or indirectly, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer, ▇▇▇▇▇▇▇ Company, a Michigan corporation that is an indirect wholly-owned subsidiary of Parent, or Parent, as described in Section 871(h)(3)(B) of the Code;
(ii) being a bank receiving interest described in Section 881(c)(3)(A) of the Code; or
(iii) being a controlled foreign corporation (a “CFC”) that is related to the Issuer, ▇▇▇▇▇▇▇ Company or Parent by stock ownership within the meaning of Section 881(c)(3)(C) of the Code;
(h) any Taxes imposed or required to be withheld by the United States, any state thereof or the District of Columbia (or any political subdivision of or governmental authority in any such state or the District of Columbia having the power to tax), as a result of a Holder’s present or former status under the Code as a personal holding company, a foreign personal holding company, a CFC, a passive foreign investment company, a foreign tax exempt organization or a corporation which accumulates earnings to avoid U.S. federal income tax;
(i) any U.S. federal backup withholding Taxes;
(5j) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with)Code, any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements or treaties (and any related legislation, rules, or official administrative practices) implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements)foregoing; or
(7k) any combination of the items (a) through (j) above. Such Additional Amounts will also not be payable (x) if As used in this Section 10.4, the payment could have been made without such deduction or withholding if the beneficiary term “Holder” shall include both a Holder of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due Notes and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the a beneficial owner of the Note been Notes, as applicable. In the Holder of event the NoteNotes are held in global form, such the right to receive Additional Amounts shall be determined at the beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive abovelevel. The non-U.S. Payors Payor, if it is the applicable withholding agent, will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes and Taxes. The Payor will provide such certified copies furnish to the Trustee and to the HoldersPaying Agent (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, such certified copies. If, notwithstanding the efforts Copies of such non-U.S. Payor to obtain such receipts, documentation will be available for inspection during ordinary business hours at the same are not obtainable, such non-U.S. Payor will provide office of the Trustee and by the Holders of the Notes upon request and will be made available at the offices of the Paying Agent. At least 30 days prior to each date on which any payment under or with other reasonable evidence. If respect to the Notes or any non-U.S. Guarantee is due and payable (unless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor will deliver to the Trustee and to the Paying Agent an Officer’s Officers’ Certificate stating the fact that such Additional Amounts will be payable and the amount amounts so payable and will furnish such other information necessary to enable the Paying Agent to pay such Additional Amounts to Holders on the relevant payment date date. Each such Officers’ Certificate shall be relied upon until receipt of a further Officers’ Certificate addressing such matters. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office such an Officers’ Certificate, the Trustee may assume without inquiry (unless and with no liability) that no such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date)are payable. The Trustee shall not at any time be entitled under any duty or responsibility to rely solely on any Holder to determine whether any Additional Amounts are payable, or with respect to the nature, extent, or calculation of any taxes or the amount of any Additional Amount is owed, or with respect to the method employed in such Officer’s Certificate as conclusive proof that such payments are necessarycalculation of any Additional Amounts. Wherever in this the Indenture, the Notes or any guarantee of the Notes Guarantee there is mention of, are references in any context, to:
(1) the payment of principal;,
(2) redemption prices or purchase prices in connection with a redemption or purchase of Notes;interest, or
(3) interest; or
(4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this Section 2.13 heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors Payor will pay any present or future stamp, court or documentary Taxesissuance, or any other excise, property or transfer and similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, delivery or registration or enforcement of any Notes, this Indenture Notes or any other document or instrument in relation thereto referred to therein (other than a transfer of the Notes), or the receipt of any payments with respect to the Notes or any Guarantee, or the enforcement of the Notes, any Guarantee or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes, limited, solely in the case of Taxes attributable to the receipt of any payments with respect to the Notes or any Guarantee, to any Taxes imposed in a Relevant Taxing Jurisdiction that are not excluded under clause (a) through (c), or (e) through (j), or any combination thereof. The foregoing obligations will survive any termination, defeasance or discharge of this the Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized incorporated, organized, or otherwise considered to be a resident or engaged in business for tax purposes purposes, any jurisdiction from or through which payment on the Notes or any Guarantee thereof is made, or any political subdivision or taxing authority or agency thereof or thereintherein having the power to tax.”
Appears in 1 contract
Additional Amounts. After All payments made by or on behalf of the occurrence of a Non-U.S. Domicile Transaction with respect to Issuer, any Obligor Guarantor or any successor in interest to an Obligor thereto (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor ) on or with respect to the Notes or (including any guarantee Note Guarantee for the purposes of the Notes this Section 4.18) will be made without withholding or deduction for, or on account of, any present or future taxtaxes (including interest or penalties to the extent resulting from a failure by the Issuer to timely pay amounts due), dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “Taxes”) unless such the withholding or deduction of such Taxes is then required by law Law or by the official interpretation of or administration of lawthereof. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the government of the United States Kingdom or any political subdivision or governmental authority thereof or therein having power to tax;
(2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payormade, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental 129 authority thereof or therein having the power to tax (each of clauses clause (1), (2) and (23), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by each Holder, as the Holder case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than ) equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1A) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) beneficial owner and the Relevant Taxing Jurisdiction imposing such Taxes (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, other than the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, mere ownership or holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or under this Indenture or the enforcement or receipt of any payment payments in respect thereof);
(2B) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence non-residence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that (i) such declaration of nonresidence non-residence or other claim, claim or filing or requirement for exemption is required by the applicable law, treaty, regulation or official administrative practice Law of the Relevant Taxing Jurisdiction as a precondition to exemption from, from the requirement to deduct or reduction in the rate withhold all or a part of deduction or withholding of, any such TaxesTaxes and (ii) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable Law of the Relevant Taxing Jurisdiction, the relevant Holder at that time has been notified (in accordance with the procedures set forth in this Indenture) by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made but only to the extent the holder is legally entitled to provide such declaration, claim or filing);
(3C) 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 during such 30-day period);
(D) any Taxes that are payable otherwise than by withholding from a payment of the principal of, redemption price of, premium, if any, or interest on or with respect to the Notes or any guarantee of the Notes;
(4E) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxestax, assessment or other governmental charge; 130
(F) all United States backup withholding taxes;
(5G) any Taxes withholding or deduction imposed in connection with a Note presented for payment pursuant to (where presentation is required for paymenti) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986 (as amended), as of the date of the Offering Memorandum Issue Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), ) and any current or future regulations or official interpretations thereof, (ii) any agreements entered into pursuant theretotreaty, and any intergovernmental agreements implementing the foregoing (including any legislation Law, regulation or other official guidance enacted in any other jurisdiction, or relating to such an intergovernmental agreements)agreement between the United States and any other jurisdiction, which (in either case) facilitates the implementation of (i) above or (iii) any agreement pursuant to the implementation of (i) or (ii) above with the U.S. Internal Revenue Service, the U.S. government or any governmental or taxation authority in any other jurisdiction; or
(7H) any combination of the items (A) through (G) above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the NoteHolder, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1A) to (7H) inclusive aboveof this Section 4.18. The non-U.S. Payors Payor will (ia) make or cause to be made any required withholding or deduction and (iib) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable lawLaw. The non-U.S. 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies (or, if certified copies are not available despite reasonable efforts of the Payor, other evidence of payment reasonably satisfactory to the Trustee Trustee) to each Holder. The Payor will attach to each certified copy (or other evidence) 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 Holders. If, notwithstanding the efforts amount of such non-U.S. Payor to obtain withholding Taxes paid per $1,000 or £1,000 principal amount of the Notes, as the case may be. Copies of such receipts, documentation will be available for inspection during ordinary business hours at the same are not obtainable, such non-U.S. Payor will provide office of the Trustee and by the Holders with other reasonable evidence. If any non-U.S. Payor upon request and will be obligated made available at the offices of the Paying Agent if the Notes are then listed on the Luxembourg Stock Exchange. At least 30 days prior to pay Additional Amounts each date on which any payment under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor will deliver to the Trustee an Officer’s Certificate stating the fact that Additional Amounts will be Notes is due and 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 (unless such obligation to pay Additional Amounts arises less than 45 days shortly before or after the 30th day prior to the relevant payment such date, in which case it shall be promptly thereafter), if the non-U.S. Payor shall will be obligated to pay Additional Amounts with respect to such payment, the Payor will deliver to the Trustee and each Paying Agent an Officer’s 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 Paying Agents or Trustee, as applicable, to pay such Additional Amounts to Holders on the payment date. Each such Officer’s Certificate and shall be relied upon until receipt of a further Officer’s Certificate addressing such other information as promptly as practicable after the date that is 30 days prior to the payment date)matters. The Trustee and each Paying Agent shall be entitled to rely solely on each such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever mentioned in this Indenture, Indenture or the Notes or any guarantee of the Notes there is mention ofNotes, 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
, or (4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; , such reference shall be deemed to include payment of Additional Amounts as described under this Section 2.13 heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. 131 The non-U.S. Payors Payor will pay any present or future stamp, court or documentary Taxes, taxes or any other exciseexcise or property taxes, property charges or similar Taxes that levies (including interest and penalties to the extent resulting from a failure by the Issuer to timely pay amounts due) which arise in any Relevant Taxing Jurisdiction jurisdiction from the execution, delivery, issuance, initial resale, delivery or registration or enforcement of any Notes, this Indenture Notes or any other document or instrument in relation thereto referred to therein (other than a transfer of the Notes), or the receipt of any payments with respect to the Notes, excluding any such taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction or any jurisdiction in which a Paying Agent is located, other than those resulting from, or required to be paid in connection with, the enforcement of the Notes, the Collateral or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes. The foregoing obligations of this Section 4.18 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Liberty Global PLC)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor the Company on or with respect to the Notes ------------------ (whether or any guarantee not in the form of the Notes Definitive Notes) will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “"Taxes”") imposed or levied by or on behalf of Germany or any jurisdiction in which the Company or any Successor Company is organized or is otherwise resident for tax purposes or any political subdivision thereof or any authority having power to tax therein or any jurisdiction from or through which payment is made (each a "Relevant Taxing Jurisdiction"), unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will shall at any time be required from on any payments made by the Company with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor Company will pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts)deduction, will not be less than equal the respective amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, except that no such Additional Amounts will be payable for or on account ofwith respect to:
(1a) any payments on a Note held by or on behalf of a Holder or beneficial owner who is liable for such Taxes that would not have been so imposed in respect of such Note by reason of the Holder or levied but for the existence of any present or former beneficial owner having some connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and with the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than by the acquisition, ownership or mere holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof;
(2b) any Taxes that would not have been so are imposed or levied if withheld as a result of a change in law after the Issue Date where such withholding or imposition is by reason of the failure of the Holder or beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) any request by the Company to provide information concerning the nationality, residence or identity of such Holder or beneficial owner or to make a any declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or reporting requirement for exemption fromrequirement, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from all or reduction in the rate part of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5c) except in the case of the winding up of the Company, any Taxes imposed in connection with a Note presented for payment (where presentation is required for paymentrequired) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting in the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements)Relevant Taxing Jurisdiction; or
(7d) any combination of Note presented for payment (where presentation is required) more than 30 days after the aboverelevant payment is first made available for payment to the Holder. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner he would not have been entitled to payment of Additional Amounts by reason of any of clauses (1a) to (7d) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Cybernet Internet Services International Inc)
Additional Amounts. After All payments made by the occurrence of a Non-U.S. Domicile Transaction with respect to Issuer, any Obligor Guarantor or any successor in interest to an Obligor thereto (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor ) on or with respect to the Notes or (including any guarantee Note Guarantee for the purposes of the Notes this Section 4.18) will be made without withholding or deduction for, or on account of, any present or future taxtaxes (including interest penalties to the extent resulting from a failure by the Issuer to timely pay amounts due), dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “Taxes”) unless such the withholding or deduction of such Taxes is then required by law or by the official interpretation of or administration of lawthereof. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the government of the United States Kingdom or any political subdivision or governmental authority thereof or therein having power to tax;
(2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payormade, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1), (2) and (23), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by each Holder, as the Holder case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than ) equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1A) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) beneficial owner and the Relevant Taxing Jurisdiction imposing such Taxes (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, other than the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, mere ownership or holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or under this Indenture or the enforcement or receipt of any payment payments in respect thereof);
(2B) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence non-residence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that (i) such declaration of nonresidence non-residence or other claim, claim or filing or requirement for exemption is required by the applicable law, treaty, regulation or official administrative practice law of the Relevant Taxing Jurisdiction as a precondition to exemption from, from the requirement to deduct or reduction in the rate withhold all or a part of deduction or withholding of, any such TaxesTaxes and (ii) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the Relevant Taxing Jurisdiction, the relevant Holder at that time has been notified (in accordance with the procedures set forth in this Indenture) by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made but only to the extent the holder is legally entitled to provide such declaration, claim or filing);
(3C) 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 during such 30-day period);
(D) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest on or with respect to the Notes or any guarantee of the Notes;
(4E) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(5F) Taxes withheld or deducted on a payment required to be withheld or deducted pursuant to the European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN 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;
(G) any Taxes imposed in connection with a Note presented for payment which could have been avoided by the presentation (where presentation is required for paymentrequired) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, to another Paying AgentAgent in a member state of the European Union;
(6H) all United States backup withholding taxes;
(I) any Taxes payable under withholding or deduction imposed pursuant to (i) Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986 (as amended), as of the date of the Offering Memorandum Issue Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), ) and any current or future regulations or official interpretations thereof; (ii) any treaty, any agreements entered into pursuant theretolaw, and any intergovernmental agreements implementing the foregoing (including any legislation regulation or other official guidance enacted in any other jurisdiction, or relating to such an intergovernmental agreements)agreement between the United States and any other jurisdiction, which (in either case) facilitates the implementation of (i) above or (iii) any agreement pursuant to the implementation of (i) or (ii) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction; or
(7J) any combination of the items (A) through (I) above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the NoteHolder, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1A) to (7J) inclusive aboveof this Section 4.18. The non-U.S. Payors Payor will (ia) make or cause to be made any required withholding or deduction and (iib) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies (or, if certified copies are not available despite reasonable efforts of the Payor, other evidence of payment reasonably satisfactory to the Trustee Trustee) to each Holder. The Payor will attach to each certified copy (or other evidence) 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 Holders. If, notwithstanding the efforts amount of such non-U.S. Payor to obtain withholding Taxes paid per £1,000 principal amount of the Notes. Copies of such receipts, documentation will be available for inspection during ordinary business hours at the same are not obtainable, such non-U.S. Payor will provide office of the Trustee and by the Holders upon request and will be made available at the offices of the Paying Agent if the Notes are then listed on the Luxembourg Stock Exchange. At least 30 days prior to each date on which any payment under or with other reasonable evidence. If any non-U.S. 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 Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable and payable, the amount amounts so payable and will set forth such other information necessary to enable the Paying Agent Trustee to pay such Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver . Each such Officer’s Certificate and shall be relied upon until receipt of a further Officer’s Certificate addressing such other information as promptly as practicable after the date that is 30 days prior to the payment date)matters. The Trustee shall be entitled to rely solely on each such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever mentioned in this Indenture, Indenture or the Notes or any guarantee of the Notes there is mention ofNotes, 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
, or (4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; , such reference shall be deemed to include payment of Additional Amounts as described under this Section 2.13 heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors Payor will pay any present or future stamp, court or documentary Taxes, taxes or any other exciseexcise or property taxes, property charges or similar Taxes that levies (including interest and penalties to the extent resulting from a failure by the Issuer to timely pay amounts due) which arise in any Relevant Taxing Jurisdiction jurisdiction from the execution, delivery, issuance, initial resale, delivery or registration or enforcement of any Notes, this Indenture Notes or any other document or instrument in relation thereto referred to therein (other than a transfer of the Notes), or the receipt of any payments with respect to the Notes, excluding any such taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction or any jurisdiction in which a Paying Agent is located, other than those resulting from, or required to be paid in connection with, the enforcement of the Notes, the Collateral or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes. The foregoing obligations of this Section 4.18 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Liberty Global PLC)
Additional Amounts. After All payments of, or in respect of, principal of, and any interest on, the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or with respect to the Notes or any guarantee Securities of the Notes will First Series shall be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation charges of administration of law. If any deduction or withholding for, or on account of, any Taxes whatever nature imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States of Australia or any political subdivision or governmental taxing authority thereof or therein having power to tax) from therein, unless such taxes, duties, assessments or through which payment on the Notes or any guarantee of the Notes is made governmental charges are required by or on behalf of a non-U.S. Payor, Australia or any political subdivision or governmental taxing authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, withheld or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if anydeducted. In that event, the non-U.S. Payor Company will pay (together with such payments) such additional amounts of, or in respect of, principal of, and any interest on, such Securities (the “"Additional Amounts”") as may be necessary in order that the net amounts received will result (after deduction of such taxes, duties, assessments or governmental charges and any additional taxes, duties, assessments or governmental charges payable in respect of such payments by payment) in the payment to the Holder after of such Security of the amounts which would have been payable in respect of such Security had no such withholding or deduction (including any such deduction or withholding from such Additional Amounts)been required, will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, except that no such Additional Amounts will shall be so payable for or on account of:
(1a) any Taxes tax, duty, assessment or other governmental charge that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder fact that such Holder
(or between i) was a fiduciaryresident, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident domiciliary or national of, or carrying on a engaged in business or maintaining maintained a permanent establishment in, or being was physically present in, Australia or otherwise has some connection with Australia other than the Relevant Taxing Jurisdiction) but excludingmere ownership of, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment under, such Security; or
(ii) presented such Security for payment in Australia, unless such Security could not have been presented for payment elsewhere; or
(iii) presented such Security more than 30 days after the date on which the payment in respect thereof;of such Security first became due and payable or provided for, whichever is later, except to the extent that the Holder would have been entitled to such Additional Amounts if it had presented such Security for payment on any day within such period of 30 days; or
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4b) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(5c) any Taxes imposed tax, assessment or other governmental charge which is payable otherwise than by withholding from payments of (or in connection with a Note presented for payment (where presentation is required for paymentrespect of) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note toprincipal of, or otherwise accepting payment from, another Paying Agentany interest on such Securities;
(6d) any Taxes payable under Sections 1471 through 1474 withholding or deduction from payments to an Australian resident which would not have been required if the Holder had provided the Company with a tax file number, within the meaning of the Code as Income Tax Assessment Act, 1936 (Commonwealth of Australia), prior to the payment from which such withholding or deduction is made;
(e) any tax, assessment or other governmental charge that is imposed or withheld by reason of the date failure to comply by the Holder or the beneficial owner of such Security with a request of the Offering Memorandum Company addressed to such Holder
(i) to provide information concerning the nationality, residence or identity of such Holder or such beneficial owner, or
(ii) to make any amended declaration or successor version that is substantively comparable and not materially more onerous to comply withother similar claim or satisfy any information or reporting requirements, which, in the case of (i) or (ii), any current is required or future regulations imposed by a statute, treaty, regulation or official interpretations thereofadministrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation assessment or other official guidance relating to such intergovernmental agreements)governmental charge; or
(7f) any combination of the above. Such items (a), (b), (c), (d) and (e); nor shall Additional Amounts will also not be payable (x) if paid with respect to any payment of, or in respect of, the payment could have been made without principal of, or any interest on, any such deduction Security to any such Holder who is a fiduciary or withholding if partnership or other than the beneficiary sole beneficial owner of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for such payment to the Holder (provided that notice extent such payment would be required by the laws of Australia or any political subdivision or taxing authority thereof or therein to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such payment is given to the Holders), except to the extent that the Holder partnership or a beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner who would not have been entitled to payment of such Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted had it been the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts Holder of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidenceSecurity. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes Whenever there is mention ofmentioned, 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 Notes principal of, or any guarantee of the Notes; interest on, or in respect of, any such reference Security, such mention shall be deemed to include mention of the payment of Additional Amounts as described under provided for in this Section 2.13 Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereofthereof pursuant to this Indenture. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis As to any jurisdiction Additional Amounts provided for in which any successor this Indenture, the Trustee shall be entitled to a non-U.S. Payor is organized or otherwise considered receive and shall be fully protected in relying upon an Officer's Certificate setting forth the amount of such Additional Amounts, and the Trustee shall not be required to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.verify the calculation of such Additional Amounts. ARTICLE FOUR
Appears in 1 contract
Additional Amounts. After Any deliveries of shares of Common Stock or, if applicable, other Reference Property (together with payment of cash in lieu of any fractional shares of Common Stock) by the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor Company (or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or with respect to surviving entity) under the Notes or any guarantee of the Notes will Purchase Contracts shall be made without withholding deduction or deduction forwithholding, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of applicable law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on event the Notes Company (or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1such entity) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order so that the net amounts received in respect of Persons entitled to such payments by will receive the Holder after shares of Common Stock or, if applicable, other Reference Property (or cash) that such withholding or deduction (including any Persons would otherwise have received but for such deduction or withholding from such Additional Amounts)withholding. Notwithstanding the foregoing, the Company will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such pay Additional Amounts will be payable for with respect to a payment made to any Holder or on account ofBeneficial Owner of a Purchase Contract:
(1a) any Taxes that would not have been so imposed which is subject to such taxes by reason of the Holder or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including Beneficial Owner being a citizen or resident resident, domicile or national of, or carrying on a engaged in business or maintaining a permanent establishment in, or being physically present inother physical presence in or otherwise having some connection with, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from relevant tax jurisdiction otherwise than by the mere acquisition, ownership holding or holding of such Notes or any guarantee disposition of the Notes Purchase Contract, enforcement of rights thereunder or the enforcement or receipt of any payment in respect thereofpayments thereunder;
(2b) for or on account of any Taxes that would not have been so taxes imposed or levied if deducted or withheld by reason of the failure of the Holder or Beneficial Owner of the Note had complied with a reasonable request Purchase Contract to complete, execute and deliver to the Company any customary form or document, to the extent applicable to such Holder or Beneficial Owner, that may be required by law (including any applicable tax treaty) or by reason of administration of such law and which is reasonably requested in writing of to be delivered to the non-U.S. Payor (such request being made at a time that would Company in order to enable such Holder acting reasonably to comply with that request) the Company to make a declaration of nonresidence or any other claim or filing or satisfy any certificationpayments on the Purchase Contract, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of without deduction or withholding offor taxes, any such Taxes)or with deduction or withholding of a lesser amount, which form or document shall be delivered within 60 days of a written request therefor by the Company;
(3c) any Taxes that are payable otherwise than by withholding from a payment for or on or with respect to the Notes or any guarantee account of the Notes;
(4) any estate, inheritance, gift, sales, transfer, capital gains, excise, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(5d) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf account of a Holder any tax, duty, assessment or beneficial owner who would have been able other governmental charge that is payable otherwise than by withholding from payments under or with respect to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying AgentPurchase Contract;
(6e) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if where the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note Purchase Contract for payment (where presentation is required) within 30 days after the relevant date on which such payment was became due and first made available for payable or the date on which payment to thereof is duly provided for, whichever is later;
(f) if the Holder (provided is a fiduciary, partnership or Person other than the sole Beneficial Owner of that notice of such payment is given to the Holders)payment, except to the extent that such payment would be required to be included in income under the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner laws of the Note been the Holder relevant taxing jurisdiction, for tax purposes, of the Notea beneficiary or settler with respect to such fiduciary, a member of such beneficial owner partnership or a Beneficial Owner who, in each case, would not have been entitled to payment of such Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make had such beneficiary, settler, partner or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted Beneficial Owner been the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, in any context:
(1) the payment of principal;
(2) redemption prices or purchase prices in connection with a redemption or purchase of Notes;
(3) interestHolder thereof; or
(4g) any combination of the instances described in the foregoing clauses (a) through (f). Any reference in this Agreement to the delivery of shares of Common Stock or Reference Property (together with payment of cash in lieu of any fractional shares of Common Stock or Common Stock) upon settlement of a Unit or a Purchase Contract or any other amount payable on or with respect to any of the Notes such Unit or any guarantee of the Notes; such reference Purchase Contract, shall be deemed to include payment of Additional Amounts as described under this Section 2.13 provided for herein to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. Each Holder entitled to any Additional Amounts shall cooperate with the Company and the Purchase Contract Agent in providing any information or documentation reasonably requested by the Company or the Purchase Contract Agent to confirm the identity and/or tax status of such Holder and any affected Beneficial Owner (to the extent necessary to establish such Holder’s entitlement to Additional Amounts) and to assist the Company or the Trustee in determining the applicable withholding tax rate and the amount of Additional Amounts payable in respect thereof. The non-U.S. Payors Company will pay any present or future stamp, court or documentary Taxes, or furnish to the Purchase Contract Agent an Officers’ Certificate and any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from documentation reasonably satisfactory to the execution, delivery, issuance, initial resale, registration or enforcement Trustee evidencing payment of any Notes, this Indenture Applicable Taxes so deducted or withheld and the amount of any other document or instrument in relation thereto (other than a transfer Additional Amounts payable thereon. Copies of such documentation will be made available by the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis Purchase Contract Agent to any jurisdiction in which any successor Holders upon written request to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinthe Purchase Contract Agent.
Appears in 1 contract
Sources: Purchase Contract Agreement (McDermott International Inc)
Additional Amounts. After All payments of, or in respect of, principal of and interest on the occurrence Securities of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or with respect to the Notes or any guarantee of the Notes will series shall be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation charges of administration of law. If any deduction or withholding for, or on account of, any Taxes kind whatsoever imposed or levied by or on behalf of:
(1) any jurisdiction (other than of the United States Kingdom or any political subdivision or governmental any Taxing authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing JurisdictionU.K. Withholding Taxes”), will at any time be unless such U.K. Withholding Taxes are required from any payments made with respect to by the Notes United Kingdom or any guarantee such subdivision or authority to be withheld or deducted. In the event of (i) a Change in Tax Law or (ii) a failure by the Company to list or maintain a listing of the Notes, including payments Securities of principal, redemption price, interest or premium, if anysuch series on a “recognized stock exchange” (within the meaning of Section 1005 of the Income Tax Act 2007) (a “Listing Failure”), the non-U.S. Payor effect of which, in each case, is to require the withholding or deduction by the Company or any Guarantor pursuant to such Securities or the Guarantees thereof, respectively, of any amount for U.K. Withholding Taxes that would not have been required to be withheld or deducted absent such event, the Company or such Guarantors, as the case may be, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order on such Securities that the net amounts received in respect of such payments by the Holder result (after such withholding or deduction (including any such deduction or withholding from of such U.K. Withholding Taxes, including any deduction or withholding of such U.K. Withholding Taxes with respect to such Additional Amounts), will not be less than ) in the payment to each Holder of a Security of such series the amounts that would have been received payable in respect of such payments on the Notes or the guarantees of the Notes in the absence of Security had no such withholding or deduction; provideddeduction been required, however, except that no such Additional Amounts will shall be so payable for or on account of:
(1a) any Taxes tax, duty, assessment or other governmental charge that would not have been so imposed or levied but for (1) the existence of any present or former connection between a Holder or the relevant Holder beneficial owner of a Security of such series (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of a power over, the relevant such Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company partnership or corporation) and the Relevant United Kingdom or any political subdivision or Taxing Jurisdiction authority thereof or therein (including other than mere ownership of, or receipt of payment under, such Security) including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident resident, domiciliary or national of, or carrying on being or having been present or engaged in a trade or business therein or maintaining having or having had a permanent establishment in, the United Kingdom or being physically present inany political subdivision or any Taxing authority thereof or therein, (2) the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding presentation of a Security of such Notes series or a Guarantee thereof for payment in the United Kingdom or any guarantee political subdivision or any Taxing authority thereof or therein, unless such Security or Guarantee could not have been presented elsewhere, or (3) the presentation of a Security of such series or a Guarantee thereof for payment on a date more than 30 days after the Notes or the enforcement or receipt of any date on which such payment in respect thereofof such Security became due and payable or provided for, whichever occurs later, except to the extent that the Holder of such Security or such Guarantee would have been entitled to such Additional Amounts if it had presented such Security or such Guarantee for payment within such 30-day period;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4b) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxestax, duty, assessment or governmental charge;
(5c) any Taxes tax, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of a Security of such series to comply, or the delay in connection complying, with a Note presented for payment request in writing of the Company or a Guarantor thereof (where presentation which request shall be furnished to the Trustee)
(1) to provide information concerning the nationality, residence, place of establishment or identity of the Holder or such beneficial owner or (2) to make any declaration or other similar claim or satisfy any information or reporting requirement which, in the case of (1) or (2), is required for payment) or imposed by a statute, treaty, regulation or on behalf administrative practice of the taxing jurisdiction as a Holder precondition to exemption from or beneficial owner who would have been able to avoid reduction of all or part of such Tax by presenting the relevant Note totax, duty, assessment or otherwise accepting payment from, another Paying Agentother governmental charge;
(6d) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with)tax, any current or future regulations or official interpretations thereofduty, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation assessment or other official guidance relating governmental charge resulting from a Listing Failure with respect to any Security of such intergovernmental agreements)series issued in the form of a definitive registered Security of such series pursuant to the terms of this Indenture; or
(7e) any combination of the items (a), (b), (c) and (d) above. Such ; nor shall Additional Amounts will also not be payable (x) if the paid with respect to any payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice principal of, or any interest on, any Security of such payment series or Guarantee thereof to any Holder who is given to a fiduciary or partnership other than the Holders)sole beneficial owner of such Security or Guarantee, except to the extent that such payment would be required by the Holder laws of the United Kingdom (or any political subdivision or relevant Taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or member of such partnership or a beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner who would not have been entitled to payment of such Additional Amounts by reason had it been the Holder of such Security. At least 30 days prior to each date on which any payment under or with respect to the Securities of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make series is due and payable, if the Company or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts a Guarantor of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor series will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor Company or the Guarantor of such series will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable and the amount amounts so payable and will set forth such other information necessary to enable the Paying Agent Trustee to pay such Additional Amounts to Holders of Securities of such series on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever Whenever in this Indenture, the Notes or any guarantee of the Notes Indenture there is mention ofmentioned, in any context:
(1) , the payment of principal;
(2) redemption prices , Redemption Price, interest or purchase prices in connection with a redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on under or with respect to any Security or the net proceeds received on the sale or exchange of the Notes or any guarantee of the Notes; Security, such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under provided for in this Section 2.13 Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, thereof pursuant to this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinIndenture.
Appears in 1 contract
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments made by a non-U.S. Payor on the Company under or with respect to the Notes or any guarantee of the Notes will shall be made free and clear of and without withholding or deduction for, for or on account of, of any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, hereinafter “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of the Republic of the ▇▇▇▇▇▇▇▇ Islands or any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes notes is made by or on behalf of a non-U.S. Payormade, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposesthereof, or any political subdivision authority or governmental authority agency thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at unless the Company is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If the Company is so required to withhold or deduct any time be required amount of interest for or on account of Taxes from any payments payment made under or with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will Company shall pay (together with such payments) such additional amounts of interest (the “Additional Amounts”) as may be necessary in order so that the net amounts amount received in respect of such payments by the each Holder (including Additional Amounts) after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will shall not be less than the amounts that amount the Holder would have received if such Taxes had not been received in respect of such payments on the Notes withheld or the guarantees of the Notes in the absence of such withholding or deductiondeducted; provided, however, that no such the Company will not pay any Additional Amounts will be payable for or on account of:
(1) in connection with any Taxes that would not have been so are imposed due to any of the following (“Excluded Additional Amounts”):
(i) the Holder or levied but for beneficial owner has some connection with the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or other than merely holding of such Notes or any guarantee of the Notes or receiving principal or interest payments on the enforcement Notes (such as citizenship, nationality, residence, domicile, or receipt existence of any payment in respect thereofa business, a permanent establishment, a dependent agent, a place of business or a place of management present or deemed present within the Taxing Jurisdiction);
(2ii) any Taxes that would not have been so tax imposed on, or levied if measured by net income;
(iii) the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably or beneficial owner fails to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence identification or other claimreporting requirements concerning its nationality, filing residence, identity or requirement connection with the Taxing Jurisdiction, if (A) such compliance is required by the applicable law, treatyregulation, regulation or official administrative practice of the Relevant Taxing Jurisdiction or treaty as a precondition to exemption fromfrom all or a part of the Tax, (B) the Holder or reduction in beneficial owner is able to comply with such requirements without undue hardship, and (C) at least 30 calendar days prior to the rate of deduction first payment date with respect to which such requirements under the applicable law, regulation, administrative practice or withholding oftreaty shall apply, any the Company has notified such Taxes)Holder that such Holder will be required to comply with such requirements;
(3iv) any Taxes that are payable otherwise than by withholding from the Holder fails to present (where presentation is required) its Note within 30 calendar days after the Company has made available to the Holder a payment of principal or interest, provided that the Company will pay Additional Amounts which a Holder would have been entitled to had the Note owned by such Holder been presented on or with respect to any day (including the Notes or any guarantee of the Notes;last day) within such 30-day period; or
(4v) any estate, inheritance, gift, salesvalue added, excise, transfer, personal property use or sales Taxes or any similar Taxes;.
(5b) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will The Company shall also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required such withholding or deduction and (ii2) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts Company shall furnish to obtain the Trustee and the Holders of the Notes, within 30 days after the date the payment of any Taxes are due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the payment Company.
(c) The Company shall indemnify and hold harmless each Holder for the amount (other than Excluded Additional Amounts) of (1) any Taxes so not withheld or deducted by the Company and levied or withheld from each relevant taxing authority imposed and paid by such Holder as a result of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies payments made under or with respect to the Trustee Notes, (2) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, and (3) any Taxes imposed with respect to any reimbursement under clause (1) or (2) of this paragraph (c) of this Section 4.10.
(d) At least 30 days prior to each date on which any payment under or with respect to the Holders. IfNotes is due and payable, notwithstanding if the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor Company is aware that it will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor will Company shall deliver to the Trustee an Officer’s Officers’ Certificate stating the fact that such Additional Amounts will be payable and payable, the amount amounts so payable and such other information necessary to enable the Paying Agent Trustee to pay such Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever Whenever in this Indenture, the Notes Indenture or any guarantee of the Notes there is mention ofmentioned, in any context:
(1) , the payment of principal;
principal (2) redemption prices and premium, if any), interest or purchase prices in connection with a redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on under or with respect to any of the Notes or any guarantee of the Notes; Note, such reference mention (except where expressly mentioned) shall be deemed to include mention of the payment of Additional Amounts as described under provided for in this Section 2.13 4.10 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Teekay Corp)
Additional Amounts. After (a) All payments and deliveries made by, or on behalf of, the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor Company or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on the Company under or with respect to this Indenture and the Notes Notes, including, but not limited to, payments of principal (including, if applicable, the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price), premium, if any, payments of Special Interest, if any, and payments of cash and/or deliveries of ADSs or any guarantee other consideration due on conversion of the Notes will a Note (together with payment of cash for any Fractional ADS or other consideration), shall be made without withholding withholding, deduction or deduction reduction for any other collection at source for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature imposed or levied (collectively, including any penalties and interest related thereto) (“Taxesapplicable taxes”) unless such withholding withholding, deduction or deduction reduction is required by law or by regulation or governmental policy having the interpretation of administration force of law. If In the event that any such withholding, deduction or withholding for, or on account of, any Taxes imposed or levied reduction is so required by or on behalf of:
(1) any jurisdiction (other than within the United States Cayman Islands or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee People’s Republic of the Notes is made by or on behalf of a non-U.S. PayorChina, or any political subdivision or governmental authority thereof or therein having jurisdiction in which the power to tax; or
(2) any jurisdiction (other than the United States Company or any political subdivision or governmental authority thereof or therein having successor to the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident Company is, for tax purposes, incorporated, organized or any political subdivision resident or governmental authority thereof or therein having the power to tax doing business (each of clauses (1) and (2)each, as applicable, a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes ) or any guarantee of the Notes, including payments of principal, redemption price, interest jurisdiction from or premium, if any, the non-U.S. Payor will pay through which payment or delivery is made or deemed made (together with such payments) each Relevant Taxing Jurisdiction, a “Relevant Jurisdiction,” including, in each case, any political subdivision or taxing authority thereof or therein), the Company shall pay or deliver to each Holder such additional amounts of cash, ADSs or other consideration, as applicable (the “Additional Amounts”) as may be necessary in order to ensure that the net amounts amount received in respect of such payments by the Holder beneficial owner of the Notes after such withholding or deduction (including any such withholding, deduction or withholding from such reduction (and after deducting any taxes on the Additional Amounts), will not be less than ) shall equal the amounts that would have been received in respect of by such payments on the Notes beneficial owner had no such withholding, deduction or the guarantees of the Notes in the absence of such withholding or deductionreduction been required; provided, however, provided that no such Additional Amounts will shall be payable payable:
(i) for or on account of::
(1A) any Taxes applicable taxes that would not have been so imposed or levied but for for:
(1) the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor beneficial owner of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) Note and the Relevant Taxing Jurisdiction Jurisdiction, other than merely acquiring or holding such Note, receiving cash and/or ADSs (including together with the payment of cash for any Fractional ADS) or other consideration upon conversion of such Note or the receipt of payments or the exercise or enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a citizen national, domiciliary or resident of such Relevant Jurisdiction or national of, treated as a resident thereof or carrying on being or having been physically present or engaged in a trade or business therein or maintaining having had a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;therein;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of (including the Redemption Price, the Repurchase Price and Fundamental Change Repurchase Price, if applicable) and Special Interest, if any, on, such Note or the payment of cash and/or the delivery of ADSs (together with payment of cash for any Taxes Fractional ADS) upon conversion of such Note became due and payable pursuant to the terms thereof or was made or duly provided for (except to the extent that the Holder or beneficial owner would not have been so imposed entitled to Additional Amounts had the Note been presented on the last day of such 30 day period); or levied if
(3) the failure of the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably or beneficial owner to comply with that request) a timely written request from the Company or any successor of the Company, addressed to the Holder, to the extent such Holder or beneficial owner is legally entitled, without material undue burden, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Jurisdiction, or to make a any declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrelating to such matters, or reduction in if and to the rate of, withholding to which it is entitled (provided extent that due and timely compliance with such declaration of nonresidence or other claim, filing or requirement request is required by the applicable law, treatystatute, regulation or official administrative practice of the Relevant Taxing Jurisdiction in order to reduce or eliminate any withholding or deduction as a precondition to exemption from, which Additional Amounts would have otherwise been payable to such Holder or reduction in the rate of deduction or withholding of, any such Taxes);beneficial owner;
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4B) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxes;applicable tax or excise taxes imposed on a transfer of the Notes;
(5C) any Taxes imposed in connection applicable tax that is payable otherwise than by withholding, deduction or any other collection at source from payments or deliveries under or with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able respect to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;Notes;
(6D) any Taxes payable applicable tax required to be withheld or deducted under Sections 1471 through to 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version versions of such Sections that is substantively comparable and not materially more onerous to comply with) (“FATCA”), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating thereunder, any intergovernmental agreement or agreement pursuant to such Section 1471(b)(1) of the Code entered into in connection with FATCA, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreements)agreement; or
(7E) any combination of applicable taxes referred to in the above. Such Additional Amounts will also not be payable preceding clauses (xA), (B), (C) or (D); or
(ii) with respect to any payment of the principal of (including the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable), premium, if any, or any Special Interest, on, such Note or the payment of cash and/or delivery of ADSs (together with payment of cash for 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 could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except delivery to the extent that such payment or delivery would be required to be included in the Holder income under the laws of the Relevant Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a partner or member of that partnership or a beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner who would not have been entitled to payment of such Additional Amounts had that beneficiary, settlor, partner, member or beneficial owner been the Holder thereof.
(b) In addition to the foregoing, the Company or its successor shall also pay and indemnify each Holder and beneficial owner for any present or future stamp, issue, registration, value added, court or documentary taxes, or any other excise or property taxes, charges or similar levies or taxes (including penalties, interest and any other reasonable expenses related thereto) which are levied by reason any Relevant Jurisdiction (and in the case of enforcement, any jurisdiction) on or in connection with the execution, delivery, registration or enforcement of any of clauses the Notes, this Indenture or any other document or instrument referred to herein or the receipt of payments with respect thereto (1including the receipt of ADSs (together with payment of cash for any Fractional ADS) or other consideration due upon conversion).
(c) If the Company becomes obligated to (7) inclusive above. The non-U.S. Payors will (i) make pay Additional Amounts with respect to any payment or cause to be made any required withholding delivery under or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld with respect to the relevant taxing authority of Notes, the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies Company shall deliver to the Trustee and the Holders. IfPaying Agent, notwithstanding if other than the efforts of such non-U.S. Payor to obtain such receiptsTrustee, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, a date that is at least 30 days prior to the date of such paymentthat payment or delivery (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment or delivery date, in which case the non-U.S. Payor will deliver to Company shall notify the Trustee and the Paying Agent promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and such payable. The Officer’s Certificate must also set forth any other information reasonably necessary to enable the Paying Agent or the Trustee (on behalf of the Company and subject to receipt of funds from the Company pursuant to the last paragraph in Section 4.04(a)), as the case may be, to pay Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment or delivery date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee Trustee, the Paying Agent and the Conversion Agent shall be entitled to conclusively rely solely on and accept such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this IndentureThe Company or its successor shall provide the Trustee, the Notes Paying Agent and the Conversion Agent with documentation reasonably satisfactory to the Trustee, the Paying Agent and the Conversion Agent (as applicable) evidencing the payment of Additional Amounts.
(d) The Company shall make all withholdings and deductions required by law and shall remit the full amount deducted or withheld to the relevant tax authority in accordance with applicable law. Upon request, the Company shall provide to the Trustee a certified copy of an official receipt or, if official receipts are not obtainable, other documents reasonably satisfactory to the Trustee evidencing the payment of any guarantee applicable taxes so deducted or withheld. The Company will attach to each certified copy or other document a certificate stating the amount of such applicable taxes paid per US$1,000 principal amount of the Notes there is mention ofthen outstanding. Copies of those receipts or other documentation, as the case may be, shall be made available by the Paying Agent to the Holders of the Notes upon prior written request.
(e) Any reference in this Indenture or the Notes in any context:
(1) context to the payment of principal;
cash and/or the delivery of ADSs (2together with payment of cash for any Fractional ADS) redemption prices or purchase prices in connection with a redemption other consideration upon conversion of any Note or purchase the payment of Notes;
principal of (3including the Redemption Price, the Repurchase Price and Fundamental Change Repurchase Price, if applicable) interest; or
and any premium or Special Interest, (4including any Special Interest) on any Note or any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; such reference Note, shall be deemed to include payment of Additional Amounts as described under this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in with respect thereofto that amount pursuant to this Section 4.07. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto
(other than a transfer of the Notes). f) The foregoing obligations will shall survive any termination, defeasance or discharge of this Indenture or any transfer by a Holder or beneficial owner of its Notes and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor the Company is then, for tax purposes, incorporated, organized or otherwise considered to be a resident for tax purposes or doing business (or any political subdivision or taxing authority or agency thereof or therein.) or any jurisdiction from or through which payment or delivery under or with respect to the Notes is made or deemed made by or on behalf of such successor (or any political subdivision or taxing authority thereof or therein).
Appears in 1 contract
Sources: Indenture (21Vianet Group, Inc.)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments made by a non-U.S. Payor or on behalf of either Issuer under or with respect to the Notes or any guarantee of the Notes will be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectivelyincluding penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than of the United States government of the Republic of ▇▇▇▇▇▇▇▇ Islands or any political subdivision or governmental any authority or agency therein or thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes either Issuer (including any successor entity) is organized or is otherwise considered to be a resident for tax purposes, or any political subdivision jurisdiction from or governmental authority thereof or therein having through which payment is made (including, without limitation, the power to tax jurisdiction of each Paying Agent) (each of clauses (1) and (2), a “Relevant Taxing Specified Tax Jurisdiction”), will at any time be required to be made from any payments made under or with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor such Issuer will pay (together with such payments) such additional amounts (or the “Additional Amounts”) as may be necessary in order so that the net amounts amount received in respect of such payments by the a Holder (including Additional Amounts) after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that amount such Holder would have received if such Taxes had not been received in respect of such payments on the Notes withheld or the guarantees of the Notes in the absence of such withholding or deductiondeducted; provided, however, that no such the foregoing obligation to pay Additional Amounts will be payable for or on account ofdoes not apply to:
(1) any Taxes that would not have been so imposed or levied but for the existence Holder or beneficial owner of the Notes having any present or former connection between with the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Specified Tax Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, other than the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the mere acquisition, ownership or holding of such Notes or any guarantee of the Notes or the ownership, holding, enforcement or receipt of any payment in respect thereofof the Notes);
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge;
(3) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes;
(4) any Taxes imposed as a result of the failure of the Holder or beneficial owner of the Notes, to the extent it is legally entitled to do so, to complete, execute and deliver to the Company any form or document to the extent applicable to such Holder or beneficial owner that may be required by law or by reason of administration of such law and which is reasonably requested in writing to be delivered to the Company in order to enable the Issuers to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a lesser amount, which form or document will be delivered within 60 days of a written request therefor by the Company;
(5) any Taxes that would not have been so imposed in connection with but for the beneficiary of the payment having presented a Note presented for payment (where in cases in which presentation is required for paymentrequired) by more than 30 days after the date on which such payment or such Note became due and payable or the date on behalf of a which payment thereof is duly provided for, whichever is later (except to the extent that the Holder or beneficial owner who would have been able entitled to avoid Additional Amounts had the Note been presented on the last day of such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent30-day period);
(6) any Taxes payable under Sections 1471 through 1474 of imposed on or with respect to any payment by the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment Issuers to the Holder (provided that notice if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment is given to the Holders)payment, except to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the Holder or beneficial owner or other of such Person payment would not have been entitled to Additional Amounts on presenting the Note for payment on any date during had such 30-day period beneficiary, settlor, member or (y) where, had the beneficial owner of the Note been the actual Holder of the such Note;
(7) any Taxes that are required to be deducted or withheld on a payment pursuant to European Council Directive 2003/48/EC or any law implementing, or introduced in order to conform to, such beneficial owner would not have been entitled to payment directive; or
(8) any combination of Additional Amounts by reason of any of clauses items (1) to through (7) inclusive above. The non-U.S. Payors will .
(ib) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor either Issuer becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to any payment made on the Notes, the Company will deliver to the Trustee and Paying Agent at least 30 days prior to the date of such paymentthat payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the non-U.S. Payor Company will deliver notify the Trustee and Paying Agent promptly thereafter but in no event later than two Business Days prior to the Trustee date of payment) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount so payable and such payable. The Officer’s Certificate must also set forth any other information necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall and Paying Agent will be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever The Company will provide the Trustee and Paying Agent with documentation evidencing the payment of Additional Amounts.
(c) Each Issuer will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant governmental authority on a timely basis in this Indentureaccordance with applicable law. As soon as practicable, the Notes or any guarantee Company will provide the Trustee and Paying Agent with an official receipt or, if official receipts are not obtainable, other documentation evidencing the payment of the Notes Taxes so withheld or deducted. Upon request, copies of those receipts or other documentation, as the case may be, will be made available by the Trustee and Paying Agent to the Holders of the Notes.
(d) Whenever in the Indenture there is mention ofreferenced, in any context:
(1) , the payment of amounts based upon the principal amount of the Notes or of principal;
(2) redemption prices , interest or purchase prices in connection with a redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on under, or with respect to any of the Notes or any guarantee of to, the Notes; , such reference shall will be deemed to include payment of Additional Amounts as described under this Section 2.13 heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) Each Issuer will indemnify a Holder, within 10 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder to a governmental authority of a Specified Tax Jurisdiction, on or with respect to any payment by on or account of any obligation of such Issuer to withhold or deduct an amount on account of Taxes for which such Issuer would have been obliged to pay Additional Amounts hereunder and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant governmental authority. The non-U.S. Payors A certificate as to the amount of such payment or liability delivered to the Company by a Holder will be conclusive absent manifest error.
(f) Each Issuer will pay any present or future stamp, court, issue, registration, value added, court or documentary Taxes, taxes or any other exciseexcise or property taxes, property charges or similar Taxes levies that arise in any Relevant Taxing Specified Tax Jurisdiction from the execution, delivery, issuance, initial resale, enforcement or registration or enforcement of any the Notes, this the Indenture or any other document or instrument in relation thereto (other than a transfer thereof, or the receipt of any payments with respect to the Notes, other than, for the avoidance of doubt, any Transfer Taxes (each such tax, a “Note Issuance Tax”). The foregoing obligations , and such Issuer will survive indemnify the Holders for any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinsuch Note Issuance Taxes paid by such Holders.
Appears in 1 contract
Sources: Supplemental Indenture (Teekay Offshore Partners L.P.)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments made by a non-U.S. Payor or on behalf of the Company under or with respect to the Notes or any guarantee of the Notes will be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectivelyincluding penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than of the United States government of the Republic of ▇▇▇▇▇▇▇▇ Islands or any political subdivision or governmental any authority or agency therein or thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes Company (including any successor entity) is organized or is otherwise considered to be a resident for tax purposes, or any political subdivision jurisdiction from or governmental authority thereof or therein having through which payment is made (including, without limitation, the power to tax jurisdiction of each paying agent) (each of clauses (1) and (2), a “Relevant Taxing Specified Tax Jurisdiction”), will at any time be required to be made from any payments made under or with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor Company will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order so that the net amounts amount received in respect of such payments by the a Holder (including Additional Amounts) after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that amount such Holder would have received if such Taxes had not been received in respect of such payments on the Notes withheld or the guarantees of the Notes in the absence of such withholding or deductiondeducted; provided, however, that no such the foregoing obligation to pay Additional Amounts will be payable for or on account ofdoes not apply to:
(1i) any Taxes that would not have been so imposed or levied but for the existence Holder or beneficial owner of the Notes having any present or former connection between with the relevant Specified Tax Jurisdiction, including any such connection arising as a result of such Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, partner, member or shareholder i) being organized under the laws of, or possessor of power overotherwise being or having been a domiciliary, the relevant Holdercitizen, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national ofthereof, (ii) being or carrying on having been engaged in a trade or business therein, (iii) having or having had its principal office located therein, (iv) maintaining a permanent establishment intherein, (v) being or having been physically present therein, or being physically present in, (vi) otherwise having or having had some connection with the Relevant Taxing Jurisdiction) but excludingSpecified Tax Jurisdiction (other than, in each case, any present or former connection arising solely from as a result of the mere acquisition, ownership or holding of such Notes or any guarantee of the Notes or the ownership, holding, enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such TaxesNotes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4ii) any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar Taxestax, assessment or governmental charge;
(5iii) any Taxes payable other than by deduction or withholding from payments under, or with respect to, the Notes;
(iv) any Taxes imposed in connection with as a Note presented for payment (where presentation is required for payment) by or on behalf result of a the failure of the Holder or beneficial owner who of the Notes to complete, execute and deliver to the Company (but only if such Holder or beneficial owner can do so without undue hardship) any form or document to the extent applicable to such Holder or beneficial owner that may be required by law or by reason of administration of such law and which is reasonably requested in writing to be delivered to the Company in order to enable the Company to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a lesser amount, which form or document will be delivered within 30 days of a written request therefor by the Company;
(v) any Taxes that would not have been so imposed but for the Holder having presented a Note for payment (in cases in which presentation is required) more than 30 days after the date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the Holder would have been able entitled to avoid Additional Amounts had the Note been presented on the last day of such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent30-day period);
(6vi) any Taxes payable imposed on or with respect to any payment by the Company to the Holder if such Holder is (i) a fiduciary, a partnership, a limited liability company or other fiscally transparent entity or (ii) a Person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a partner or a member of such partnership, limited liability company or other fiscally transparent entity or the beneficial owner of such payment would not have been entitled to Additional Amounts had such beneficiary, settlor, partner, member or beneficial owner been the direct Holder of such Note;
(vii) any Taxes that are required to be deducted or withheld on a payment pursuant to European Council Directive 2003/48/EC or any law implementing, or introduced in order to conform to, such directive;
(viii) any Taxes imposed under FATCA (as defined below); or
(ix) any combination of items (i) through (viii) above. For purposes of this Section 8.01, FATCA shall mean Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”), as of the date of the Offering Memorandum Issue Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), or any current or future Treasury regulations promulgated thereunder or official administrative interpretations thereof, thereof and any agreements entered into pursuant theretoto Section 1471(b)(1) of the Code or any fiscal or regulatory legislation, and rules or practices adopted pursuant to any intergovernmental agreements implementing agreement entered into in connection with the foregoing (including any legislation or other official guidance relating to implementation of such intergovernmental agreements); orSections of the Code.
(7b) any combination of If the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided Company becomes aware that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor it will be obligated to pay Additional Amounts with respect to any payment under or with respect to any payment made on the Notes, the Company will deliver to the Trustee and Paying Agent at least 30 days prior to the date of such paymentthat payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the non-U.S. Payor Company will deliver notify the Trustee and Paying Agent in writing promptly thereafter but in no event later than five calendar days prior to the Trustee date of payment) an Officer’s Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount so payable and such payable. The Officers’ Certificate shall also set forth any other information necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall and Paying Agent will be entitled to rely solely on such Officer’s Officers’ Certificate as conclusive proof that such payments are necessary. Wherever The Company will provide the Trustee and Paying Agent with documentation reasonably satisfactory to the Trustee and Paying Agent evidencing the payment of Additional Amounts.
(c) The Company will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant governmental authority on a timely basis in this Indentureaccordance with applicable law. As soon as practicable, the Notes or any guarantee Company will provide the Trustee and Paying Agent with an official receipt or, if official receipts are not obtainable, other documentation reasonably satisfactory to the Trustee and Paying Agent evidencing the payment of the Notes Taxes so withheld or deducted. Upon written request, copies of those receipts or other documentation, as the case may be, will be made available by the Trustee and Paying Agent to the Holders of the Notes.
(d) Whenever in the Indenture there is mention ofreferenced, in any context:
(1) , the payment of amounts based upon the principal amount of the Notes or of principal;
(2) redemption prices , interest or purchase prices in connection with a redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on under, or with respect to any of the Notes or any guarantee of to, the Notes; , such reference shall will be deemed to include payment of Additional Amounts as described under this Section 2.13 heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The Company will indemnify a Holder, within 10 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder to a governmental authority of a Specified Tax Jurisdiction, on or with respect to any payment by on or account of any obligation of the Company to withhold or deduct an amount on account of Taxes for which the Company would have been obligated to pay Additional Amounts hereunder and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant governmental authority. A certificate as to the amount of such payment or liability delivered to the Company by a Holder will be conclusive absent manifest error.
(f) The non-U.S. Payors Company will pay any present or future stamp, court court, issue, registration or documentary Taxes, taxes or any other exciseexcise or property taxes, property charges or similar Taxes levies that arise in any Relevant Taxing Specified Tax Jurisdiction from the execution, delivery, issuance, initial resale, enforcement or registration or enforcement of any the Notes, this the Indenture or any other document or instrument in relation thereto (other than a transfer thereof, or the receipt of any payments with respect to the Notes). The foregoing obligations , and the Company will survive indemnify the Holders for any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinsuch taxes paid by such Holders.
Appears in 1 contract
Sources: First Supplemental Indenture (Star Bulk Carriers Corp.)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), a) The Company will make all payments made by a non-U.S. Payor of cash or deliveries of Ordinary Shares, Reference Property or otherwise (whether upon conversion, repurchase, redemption, maturity or otherwise) on or with respect to the Notes or any guarantee account of the Notes will be made Securities without withholding or deduction for, or deducting on account of, of any present or future tax, duty, levy, impost, assessment or other similar governmental charge in the nature of a tax (collectivelyincluding, without limitation, penalties, interest and other additions thereto) (a “TaxesTax”) imposed or levied by or on behalf of the government of any jurisdiction in which the Company, or any entity that assumes the Company’s rights and obligations under the Securities (a “Surviving Person”) is or is deemed to be organized, resident or doing business for tax purposes (or any political subdivision or taxing authority thereof or therein) (each, a “Relevant Jurisdiction”), unless such withholding or deduction is required by law law, rule, regulation or by governmental policy having the interpretation of administration force of law. If any such withholding or deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if anyrequired, the non-U.S. Payor will Company or the Surviving Person, as the case may be, shall make such withholding or deduction and pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order so that the net amounts amount of cash, Ordinary Shares or Reference Property, as applicable, received in respect by each Holder of such payments by Securities after the Holder after such withholding or deduction (including any such deduction or withholding from such with respect to Additional Amounts), ) will not be less than the amounts that amount of cash, Ordinary Shares or Reference Property, as applicable, the Holder would have received if the Relevant Jurisdiction Taxes had not been received in respect of such payments on withheld or deducted. Notwithstanding the Notes or the guarantees of the Notes in the absence of such withholding or deduction; providedforegoing, however, that no such Additional Amounts will be payable payable: Table of Contents (i) for or on account of:
(1) of any Taxes that would not have been so imposed or levied but for by reason of the existence failure of any present or former connection between the relevant Holder (or between beneficial owner of Securities to comply with a fiduciarytimely request from the Company or any successor to provide certification, settlorinformation, beneficiarydocuments or other evidence concerning such Holder’s nationality, partnerresidence, member identity or shareholder ofconnection with the Relevant Jurisdiction, or possessor of power over, the relevant Holderto make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably legally eligible to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any such request and such certification, identificationinformation, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence documents or other claim, filing or requirement evidence is required by the applicable lawstatute, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition in order to exemption from, reduce or reduction in the rate of deduction or withholding of, eliminate any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, in any context:
(1) the payment of principaldeduction;
(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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Avago Technologies LTD)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor the Company or any successor in interest to an Obligor the Company (each such Obligor Company or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or with respect to the Notes or any guarantee of the Notes will be made without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) Taxes unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority Governmental Authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
(1) any Taxes that would not have been so imposed imposed, withheld, deducted or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporationcorporation or other entity) or beneficial owner of the Note and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed imposed, withheld, deducted or levied if the Holder of the Note had complied with a reasonable request in writing of any applicable certification, information, documentation or other reporting requirement concerning such Holder’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, if compliance is timely requested by the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in and required under the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice tax laws and regulations of the Relevant Taxing Jurisdiction or any taxing authority thereof or therein or by an applicable income tax treaty to which the Relevant Taxing Jurisdiction is a party as a precondition to exemption from, from or reduction in the rate of deduction or withholding of, of any such Taxes);
(3) any Taxes that would not have been imposed, withheld, deducted or levied but for a change in any law, treaty, regulation, or administrative or judicial interpretation that becomes effective after the applicable payment becomes due or is duly provided for, whichever comes later;
(4) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(45) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(56) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(67) any Taxes payable under Sections 1471 through 1474 of the Code Code, as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply withprovisions), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) 8) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) 8) inclusive above. The non-U.S. Payors Payor will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any the non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes Indenture or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts as described under this Section 2.13 3.17 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors Payor will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Ii-Vi Inc)
Additional Amounts. After All payments made by the occurrence of a Non-U.S. Domicile Transaction with respect to Issuer, any Obligor Guarantor or any successor in interest to an Obligor thereto (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor ) on or with respect to the Notes or (including any guarantee Note Guarantee for the purposes of the Notes this Section 4.18) will be made without withholding or deduction for, or on account of, any present or future taxtaxes (including interest penalties to the extent resulting from a failure by the Issuer to timely pay amounts due), dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “Taxes”) unless such the withholding or deduction of such Taxes is then required by law or by the official interpretation of or administration of lawthereof. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the government of the United States Kingdom or any political subdivision or governmental authority thereof or therein having power to tax;
(2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payormade, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1), (2) and (23), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by each Holder, as the Holder case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than ) equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1A) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) beneficial owner and the Relevant Taxing Jurisdiction imposing such Taxes (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, other than the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, mere ownership or holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or under this Indenture or the enforcement or receipt of any payment payments in respect thereof);
(2B) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence non-residence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that (i) such declaration of nonresidence non-residence or other claim, claim or filing or requirement for exemption is required by the applicable law, treaty, regulation or official administrative practice law of the Relevant Taxing Jurisdiction as a precondition to exemption from, from the requirement to deduct or reduction in the rate withhold all or a part of deduction or withholding of, any such TaxesTaxes and (ii) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the Relevant Taxing Jurisdiction, the relevant Holder at that time has been notified (in accordance with the procedures set forth in this Indenture) by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made but only to the extent the holder is legally entitled to provide such declaration, claim or filing);
(3C) 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 during such 30-day period);
(D) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest on or with respect to the Notes or any guarantee of the Notes;
(4E) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(5F) Taxes withheld or deducted on a payment required to be withheld or deducted pursuant to the European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN 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;
(G) any Taxes imposed in connection with a Note presented for payment which could have been avoided by the presentation (where presentation is required for paymentrequired) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, to another Paying AgentAgent in a member state of the European Union;
(6H) all United States backup withholding taxes;
(I) any Taxes payable under withholding or deduction imposed pursuant to (i) Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986 (as amended), as of the date of the Offering Memorandum Issue Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), ) and any current or future regulations or official interpretations thereof; (ii) any treaty, any agreements entered into pursuant theretolaw, and any intergovernmental agreements implementing the foregoing (including any legislation regulation or other official guidance enacted in any other jurisdiction, or relating to such an intergovernmental agreements)agreement between the United States and any other jurisdiction, which (in either case) facilitates the implementation of (i) above or (iii) any agreement pursuant to the implementation of (i) or (ii) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction; or
(7J) any combination of the items (A) through (I) above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the NoteHolder, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1A) to (7J) inclusive aboveof this Section 4.18. The non-U.S. Payors Payor will (ia) make or cause to be made any required withholding or deduction and (iib) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies (or, if certified copies are not available despite reasonable efforts of the Payor, other evidence of payment reasonably satisfactory to the Trustee Trustee) to each Holder. The Payor will attach to each certified copy (or other evidence) 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 Holders. If, notwithstanding the efforts amount of such non-U.S. Payor to obtain withholding Taxes paid per €1,000 or $1,000 principal amount of the Notes, as the case may be. Copies of such receipts, documentation will be available for inspection during ordinary business hours at the same are not obtainable, such non-U.S. Payor will provide office of the Trustee and by the Holders upon request and will be made available at the offices of the Paying Agent if the Notes are then listed on the Luxembourg Stock Exchange. At least 30 days prior to each date on which any payment under or with other reasonable evidence. If any non-U.S. 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 Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor will deliver to the Trustee an Officer’s Certificate stating the fact that such Additional Amounts will be payable and payable, the amount amounts so payable and will set forth such other information necessary to enable the Paying Agent Trustee to pay such Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver . Each such Officer’s Certificate and shall be relied upon until receipt of a further Officer’s Certificate addressing such other information as promptly as practicable after the date that is 30 days prior to the payment date)matters. The Trustee shall be entitled to rely solely on each such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever mentioned in this Indenture, Indenture or the Notes or any guarantee of the Notes there is mention ofNotes, 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
, or (4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; , such reference shall be deemed to include payment of Additional Amounts as described under this Section 2.13 heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors Payor will pay any present or future stamp, court or documentary Taxes, taxes or any other exciseexcise or property taxes, property charges or similar Taxes that levies (including interest and penalties to the extent resulting from a failure by the Issuer to timely pay amounts due) which arise in any Relevant Taxing Jurisdiction jurisdiction from the execution, delivery, issuance, initial resale, delivery or registration or enforcement of any Notes, this Indenture Notes or any other document or instrument in relation thereto referred to therein (other than a transfer of the Notes), or the receipt of any payments with respect to the Notes, excluding any such taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction or any jurisdiction in which a Paying Agent is located, other than those resulting from, or required to be paid in connection with, the enforcement of the Notes or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes. The foregoing obligations of this Section 4.18 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Liberty Global PLC)
Additional Amounts. After (a) At least 10 days prior to the occurrence first date on which payment of a Non-U.S. Domicile Transaction with respect principal, premium, if any, or interest on the Notes or the Guarantees is to be made, and at least 10 days prior to any Obligor or subsequent such date if there has been any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or change with respect to the matters set forth in the Officers’ Certificate described in this Section 4.20, the Issuer will furnish the Trustee and the 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 form of Definitive Notes) or any guarantee of the Notes will Guarantee shall be made without 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, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of (1i) any jurisdiction (other than in which the United States Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (ii) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes Guarantees is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposesmade, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1i) and (2ii), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of Taxes is then required by law.
(b) If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction will at any time be required from any payments made with respect to the Notes or any guarantee of the NotesGuarantees, including payments of principal, redemption priceRedemption Price, interest or premium, if any, the non-U.S. Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts pursuant to Paragraph 2 of the relevant series of Notes (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:.
(1c) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) The Payor and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended Guarantor or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors Guarantor will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Upon written request, the Payor and each Guarantor 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to each Holder. The Payor and each Guarantor or successor Guarantor will attach to each certified copy a certificate stating (x) that the Trustee 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 Holders. If, notwithstanding the efforts amount of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on withholding Taxes paid per €1,000 principal amount of the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date .
(unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. d) Wherever in this Indenture, the Notes Indenture or any guarantee of the Notes there is mention ofare mentioned, in any context:
, (1i) the payment of principal;
, (2ii) redemption prices or purchase prices in connection with a redemption or purchase of Notes;
, (3iii) interest; or
interest or (4iv) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; Guarantees, such reference shall be deemed to include payment of Additional Amounts as described under in this Section 2.13 Indenture and the Notes to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(e) The non-U.S. Payors will pay Issuer shall indemnify the Trustee and the Paying Agent for, and hold them harmless against, any present loss, liability or future stampexpense incurred without gross negligence, court willful default or documentary Taxes, fraud on their part arising out of or in connection with actions taken or omitted by any other excise, property or similar Taxes that arise of them in reliance on any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, Officers’ Certificate furnished to them pursuant to this Indenture or any other document or instrument in relation thereto Section 4.20.
(other than a transfer of the Notes). The foregoing obligations f) Obligations under this Section 4.20 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinIndenture.
Appears in 1 contract
Sources: Indenture (Smurfit Westrock PLC)
Additional Amounts. After The Company and the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), Guarantor will make all payments made by a non-U.S. Payor on under or with respect to the Notes or any guarantee and the Guarantee free and clear of the Notes will be made and without withholding or deduction for, for or on account of, of any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, hereinafter “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than of the United States of America or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. PayorBermuda, or any political subdivision or governmental any authority or agency therein or thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at unless the Company or the Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. As used in this Note, the term ‘‘Taxes’’ shall not include (i) any time be estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment, or governmental charge; (ii) any Tax payable otherwise than by withholding from payments in respect of the Notes or the guarantees; and (iii) any Tax imposed by reason of payments on the Notes being treated as ‘‘contingent interest’’ within the meaning of Section 871(h)(4) of the Internal Revenue Code of 1986, as amended (the “Code”) If the Company or the Guarantor is required to withhold or deduct any amount for or on account of Taxes imposed by a Taxing Jurisdiction from any payments payment made under or with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if anyGuarantee, the non-U.S. Payor will Company or the Guarantor shall pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order so that the net amounts amount received in respect by Holders of such payments by the Holder Notes after such withholding or deduction (including any such withholding or deduction or withholding from such attributable to Additional Amounts), Amounts payable hereunder) will not be less than the amounts that amount such Holders would have received if such Taxes had not been received in respect of such payments on the Notes withheld or the guarantees of the Notes in the absence of such withholding or deductiondeducted; provided, however, that no such the foregoing obligation to pay Additional Amounts will be payable for or on account ofdoes not apply to any Taxes to the extent such Taxes would not have been so imposed:
(1) any Taxes that would not have been so imposed or levied but for the existence relevant Holder (or the beneficial owner of such Notes) (i) having any present or former connection between with the relevant Holder (Taxing Jurisdiction, including, without limitation, being or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being having been a citizen or resident or national ofthereof, or carrying on having been present, having been incorporated in, having engaged in a trade or business or maintaining having (or having had) a permanent establishment inor principal office therein, or (ii) being physically present in, a controlled foreign corporation within the Relevant Taxing Jurisdictionmeaning of Section 957(a) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code related within the meaning of Section 864(d)(4) of the Code to the Company or the Guarantor, (iii) being an actual or constructive owner of 10 percent or more of the total combined voting power of all classes of stock of the Company or the Guarantor entitled to vote, (iv) being a bank for United States federal income tax purposes whose receipt of interest on the Note is described in Section 881(c)(3)(A) of the Code or (v) being subject to backup withholding as of the date of the Offering Memorandum purchase by the Holder of the Note;
(2) but for the failure of the relevant Holder (or any amended the beneficial owner of such Notes) to use its reasonable best efforts, to the extent such Holder (or successor version that beneficial owner) is substantively comparable and not materially more onerous legally entitled to do so, to comply with)upon written notice by the Company or the Guarantor delivered 60 days prior to any payment date with a request to satisfy any certification, any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation identification or other official guidance relating to reporting requirements, which shall include any applicable forms or instructions, whether imposed by statute, treaty, regulation, or administrative practice, concerning the nationality or residence of such intergovernmental agreements); orHolder or the connection of such Holder with the Taxing Jurisdiction;
(73) any combination but for an election by the Holder of such Notes, the above. Such Additional Amounts will also not be payable effect of which is to make one or more payments in respect of such Notes subject to United States federal income tax or withholding tax provisions;
(x4) if the payment could have been made without such deduction or withholding if the beneficiary of the payment relevant Holder had presented the such Note for payment (where presentation is required) within 30 days after the relevant date on which such payment was became due and first made available for payable or the date on which payment to the Holder thereof is duly provided for, whichever is later (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts had such Note been presented on presenting the Note for payment on any date during last day of such 30-day period period),
(5) with respect to any payment of principal of (or (ypremium, if any, on) whereor interest on such Note to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, had to the extent that a beneficiary with respect to such fiduciary, a member of such a partnership or the beneficial owner of the Note been the Holder of the Note, such beneficial owner payment would not have been entitled to payment of the Additional Amounts by reason had such beneficiary, member or beneficial owner been the actual Holder of such Note (but only if there is no material cost or expense associated with transferring such Notes 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); and
(6) any combination of clauses items (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If), notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein5) above.
Appears in 1 contract
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to All payments made by any Obligor Issuer or any Guarantor or any successor in interest to an Obligor any of the foregoing (each such Obligor or successoreach, a “non-U.S. Payor”), all payments made by a non-U.S. Payor ) on or with respect to the Notes or any guarantee of the Notes Guarantee will be made without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1a) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) from or through which payment on the Notes or any guarantee of the Notes Guarantee is made by or on behalf of a non-U.S. such Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2b) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes Guarantee is organized organized, or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1a) and (2b), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the NotesGuarantee, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders, the Trustee or any Agent, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes Guarantees in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
(1i) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder or beneficial owner of the Note (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment or exercise of any right in respect thereof;
(2ii) any Taxes that would not have been so imposed or levied if the Holder or beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from the requirement to deduct or reduction in the rate withhold all or a part of deduction or withholding of, any such Taxes);
(3iii) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the NotesGuarantee;
(4iv) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5v) any Taxes imposed in connection with pursuant to the Luxembourg law dated 23 December, 2005, as amended, introducing a Note presented for payment (where presentation is required for payment) by or withholding tax on behalf of a Holder or beneficial owner who would have been able certain interest payments made to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying AgentLuxembourg resident individuals;
(6vi) any Taxes payable under Sections 1471 through 1474 of the Code Code, as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreementsagreements (“FATCA”); or
(7vii) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the NoteHolder, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1i) to through (7vii) inclusive above. The non-U.S. Payors Payor will (i1) make or cause to be made any required withholding or deduction and (ii2) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the HoldersTrustee. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. Such receipts or other evidence will be made available by the Trustee to Holders on written request. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor will deliver to the Trustee and the Paying Agent 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 (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date, but no less than five Business Days prior thereto, and otherwise in accordance with the requirements of the Depositary). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof evidence that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes Guarantee there is mention of, 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 Notes or any guarantee of the NotesGuarantee; such reference shall be deemed to include payment of Additional Amounts as described under in this Section 2.13 2.15 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors Payor will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes), except regarding Luxembourg registration duties (droit d’enregistrement) for any Luxembourg Taxes payable due to a registration, submission or filing by a party of any Notes, this Indenture or any other document or instrument in relation thereto where such registration, submission or filing is or was not required to maintain or preserve the rights of the party under such documents. The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax Tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Ortho Clinical Diagnostics Holdings PLC)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor the Company on or with respect to the Notes (whether or any guarantee not in the form of the Notes Definitive Notes) will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “"Taxes”") unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of (1) any jurisdiction (other than Luxembourg, the United States States, Ireland or any political subdivision or governmental authority of any thereof or therein having power to tax, (2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payormade, or any political subdivision or governmental authority thereof or therein having the power to tax; or
tax or (23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. the Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1), (2) and (23), a “"Relevant Taxing Jurisdiction”"), will unless the withholding or deduction of Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption priceRedemption Price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; providedPROVIDED, howeverHOWEVER, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any payments to a Holder or beneficial owner who is liable for such Taxes that would not have been so imposed in respect of such Note by reason of the Holder's or levied but for the existence of beneficial owner's having any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and with the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than by the acquisition, ownership or mere holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof;
(2) any Taxes that would not have been so are imposed or levied if withheld where such withholding or imposition is by reason of the failure of the Holder or beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) any reasonable and timely request by the Payor to provide information concerning the nationality, residence or identity of such Holder or beneficial owner or to make a any declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrelating to such matters, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation regulation, protocol, or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from all or reduction part of such Taxes;
(3) except in the rate case of deduction or withholding ofthe winding up of the Payor, any such TaxesNote presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor's actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);
(34) 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 during such 30 day period);
(5) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest on or with respect to the Notes or any guarantee of the Notes;
(46) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(57) a Tax imposed on a payment to an individual and required to be made pursuant to any Taxes European Union Directive (a "Directive") on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(8) a Tax imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, to another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 paying agent in a member state of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the aboveEuropean Union. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) 8) inclusive above. The non-U.S. Payors Upon request, the Company will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted provide the full amount deducted or withheld Trustee with documentation satisfactory to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and documentation will provide such certified copies be made available to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinupon request.
Appears in 1 contract
Sources: Euro Indenture (MDCP Acquisitions I)
Additional Amounts. After (a) All payments and deliveries made by, or on behalf of, the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor Company or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on the Company under or with respect to this Indenture and the Notes Notes, including payments of principal (including, if applicable, the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price), premium, if any, payments of interest and payments of cash and/or deliveries of ADSs or any guarantee Ordinary Shares in lieu thereof deliverable upon conversion of the Notes will (together with payments of cash for any Fractional ADS or other consideration), shall be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levyassessments or governmental charges of whatever nature (including any penalties and interest related thereto) imposed or levied by or within the Cayman Islands, impostthe PRC or any other jurisdiction in which the Company or any successor to the Company is, assessment for tax purposes, incorporated, organized or other similar governmental charge resident or doing business or through which payment is made or deemed made (collectivelyand in each case, any political subdivision or taxing authority thereof or therein) (each, as applicable, a “TaxesRelevant Taxing Jurisdiction”) ), unless such withholding or deduction is required by law or by regulation or governmental policy having the interpretation of administration force of law. If In the event that any such withholding or deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be so required from any payments made with respect to the Notes any such payments or deliveries, other than any guarantee payments or deliveries that are made upon conversion of the Notes, including whether made in cash, ADSs, Ordinary Shares or other consideration, and including, for the avoidance of doubt, any payments of principal, redemption price, interest cash for any Fractional ADS or premium, if anyother consideration, the non-U.S. Payor will Company shall pay (together with such payments) to the Holder of each Note such additional amounts (the “Additional Amounts”) as may be necessary in order to ensure that the net amounts amount received in respect of such payments by the Holder beneficial owners of the Notes after such withholding or deduction (including and after deducting any such deduction or withholding from such taxes on the Additional Amounts), will not be less than ) shall equal the amounts that would have been received in respect of by such payments on the Notes or the guarantees of the Notes in the absence of beneficial owners had no such withholding or deductiondeduction been required; provided, however, provided that no such Additional Amounts will shall be payable payable:
(i) for or on account of:
(1A) any Taxes tax, duty, assessment or other governmental charge that would not have been so imposed or levied but for for:
(1) the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor beneficial owner of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) Note and the Relevant Taxing Jurisdiction Jurisdiction, other than merely acquiring or holding such Note, receiving cash and/or ADSs or Ordinary Shares in lieu thereof (including together with payments of cash for any Fractional ADSs or other consideration) due upon conversion of such Note or the receipt of payments of the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a citizen national, domiciliary or resident of such Relevant Taxing Jurisdiction or national of, treated as a resident thereof or carrying on being or having been physically present or engaged in a trade or business therein or maintaining having or having had a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereoftherein;
(2) any Taxes that the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of (including the Redemption Price, the Repurchase Price and Fundamental Change Repurchase Price, if applicable) or interest became due and payable pursuant to the terms thereof or was made or duly provided for, unless the Holder would not have been so imposed or levied if entitled to such Additional Amounts had such Note been presented on the last day of such 30-day period;
(3) the failure of the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably or beneficial owner to comply with that request) a timely request from the Company or any successor of the Company, addressed in writing to the Holder, to the extent such Holder or beneficial owner is legally entitled, to provide certification, information, documents or other evidence concerning such ▇▇▇▇▇▇’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make a any declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrelating to such matters, or reduction in if and to the rate of, withholding to which it is entitled (provided extent that due and timely compliance with such declaration of nonresidence or other claim, filing or requirement request is required by the applicable law, treatystatute, regulation or official administrative practice of the Relevant Taxing Jurisdiction in order to reduce or eliminate any withholding or deduction as a precondition to exemption from, or reduction which Additional Amounts would have otherwise been payable; or
(4) the presentation of such Note (in cases in which presentation is required) for payment in the rate of deduction or withholding ofRelevant Taxing Jurisdiction, any unless such Taxes)Note could not have been presented for payment elsewhere;
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4B) any estate, inheritance, gift, salessale, transfer, excise, transfer, personal property or similar Taxestax, assessment or other governmental charge (other than any value added taxes imposed by the PRC or any political subdivision thereof if the Company was to be deemed a PRC tax resident);
(5C) any Taxes tax, duty, assessment or other governmental charge that is payable otherwise than by withholding or deduction from payments under or with respect to the Notes;
(D) any tax, duty, assessment or other governmental charge that is imposed in connection with a Note presented any payments or deliveries that are made upon conversion of the Notes, whether made in cash, ADSs, Ordinary Shares or other consideration, and including, for payment (where presentation is required the avoidance of doubt, any payments of cash for payment) by any Fractional ADS or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agentother consideration;
(6E) any Taxes payable under tax, assessment, withholding or deduction required by Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version of such sections that is substantively comparable and not materially more onerous to comply with) (“FATCA”), any current or future regulations Treasury Regulations or official interpretations thereofrulings promulgated thereunder, any agreements entered into pursuant theretolaw, and any intergovernmental agreements implementing the foregoing (including any legislation regulation or other official guidance relating enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law, regulation or other official guidance enacted by such other jurisdiction to give effect to such intergovernmental agreementsagreement, or any agreement with the U.S. Internal Revenue Service under FATCA; or
(F) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B), (C), (D) or (E); or
(7ii) with respect to any combination payment of the above. Such Additional Amounts will also not be payable principal of (xincluding the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) or interest on such Note, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that such payment would be required to be included in the Holder income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a partner or member of that partnership or a beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner who would not have been entitled to payment of such Additional Amounts by reason of had that beneficiary, settlor, partner, member or beneficial owner been the Holder thereof.
(b) If the Company becomes obligated to pay Additional Amounts with respect to any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make payment under or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld with respect to the relevant taxing authority of Notes, the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies Company shall deliver to the Trustee and the Holders. IfPaying Agent, notwithstanding if other than the efforts of such non-U.S. Payor to obtain such receiptsTrustee, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, a date that is at least 30 days prior to the date of such paymentthat payment (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment date, in which case the non-U.S. Payor will deliver to Company shall notify the Trustee and the Paying Agent promptly thereafter) an Officer’s Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and payable; provided that no such Officers’ Certificate will be required prior to any date of payment of principal of, premium, if any, or interest on the Notes if there has been no change with respect to the matters set forth in a prior Officers’ Certificate. The Officers’ Certificate must also set forth any other information reasonably necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee and the Paying Agent (if other than the Trustee) shall be entitled to rely solely on such Officer’s Officers’ Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, The Company will provide the Notes or any guarantee of Trustee and the Notes there is mention of, in any context:
Paying Agent (1if other than the Trustee) with documentation reasonably satisfactory to the Trustee evidencing the payment of principal;Additional Amounts.
(2c) redemption prices Any reference in this Indenture or purchase prices the Notes in connection with a redemption any context to the payment of principal of (including the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable), premium, if any, and interest (including any Additional Interest) on any Note or purchase of Notes;
(3) interest; or
(4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; such reference Note, shall be deemed to include payment of Additional Amounts as described under this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in with respect thereof. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or to that amount pursuant to this Section 4.07.
(d) Notwithstanding any other exciseprovisions to the contrary, property the Company, the Trustee and the Paying Agent shall be entitled to make any withholding or similar Taxes that arise in deduction pursuant to FATCA.
(e) If the Company or its successor is required to make any Relevant Taxing Jurisdiction deductions or withholding from any payments or deliveries with respect to the executionNotes, deliveryit will deliver to the Trustee and the Paying Agent, issuanceif other than the Trustee, initial resaleofficial tax receipts evidencing the remittance to the relevant tax authorities of the amounts so deducted or withheld or, registration or enforcement if official receipts are not obtainable, an Officers’ Certificate and any other relevant documentation evidencing the payment of any Notes, this Indenture applicable taxes so deducted or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinwithheld.
Appears in 1 contract
Additional Amounts. After The Company will pay the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or with respect to the Notes or any guarantee holder of the Notes will be made without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) unless Securities such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order that every net payment of the net amounts received Principal Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price, Change in Control Purchase Price or interest, if any, in respect of such payments any Security by the Holder Company, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciaryfuture tax, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence assessment or other claim, filing governmental charge imposed upon or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice result of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes Netherlands or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Successor Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereintherein ("Taxes") will not be less than the amount provided for in such Security to be then due and payable; provided, however, that the foregoing obligation to pay Additional Amounts will not apply (a) with respect to any Security presented for payment by, or on behalf of, a holder who is liable to such taxes or duties in respect of such Security by reason of his having some connection with The Netherlands or any Successor Jurisdiction other than the mere holding of such Security, (b) more than 30 days after the Relevant Date except to the extent that the holder of such Security would have been entitled to such Additional Amounts on presenting the same for payment on such thirtieth day (where such presentation is required), or (c) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply, following a request by the Company to the holder, with any certification, identification or other reporting requirements concerning the nationality, residence, identity, or connection with The Netherlands or any Successor Jurisdiction or any political subdivision thereof of the holder of the Security, if compliance is required by statute or by regulation of The Netherlands or any Successor Jurisdiction or any political subdivision or taxing authority thereof as a precondition to exemption from such tax, assessment or other governmental charge.
Appears in 1 contract
Sources: Indenture (Stmicroelectronics Nv)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments made by the Issuer, a non-U.S. Payor Successor Company or a Guarantor (a “Payor”) on or with respect to the Notes or any guarantee of the Notes Note Guarantees will be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) Taxes unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the Grand Duchy of Luxembourg, the United States Kingdom or any political subdivision or governmental authority Governmental Authority thereof or therein having power to tax;
(2) any jurisdiction from or through which payment on the Notes any such Note or any guarantee of the Notes Note Guarantee is made by the Issuer, Successor Company, Guarantor or on behalf of a non-U.S. Payortheir agents, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax; or
(23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. the Payor that actually makes a payment on the Notes is incorporated or its guarantee of the Notes is organized organized, engaged in business for tax purposes or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax (each of clauses (1), (2) and (23), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes any Note or any guarantee of the NotesNote Guarantee, including payments of principal, redemption price, interest or premium, if any, or interest, the non-U.S. Payor will shall pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that which would have been received in respect of such payments on the Notes any such Note or the guarantees of the Notes Note Guarantee in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, over the relevant Holder, if such the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including including, but not limited to, being a citizen or resident or national or domiciliary of, or carrying on the existence of a business, a permanent establishment, a dependent agent, a place of business or maintaining a permanent establishment in, place of management present or being physically deemed present in, in the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes Note or any guarantee enforcement of the Notes rights hereunder or under a Note Guarantee or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so are imposed or levied if withheld by reason of the failure by the Holder or the beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) a written request of the Payor addressed to the Holder, after reasonable notice, to provide certification, information, documents or other evidence concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of the Holder or such beneficial owners or to make a any declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrelating to such matters, or reduction in the rate of, withholding to which it is entitled (provided each case that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treatyregulation, regulation treaty or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from all or reduction part of such Tax; provided that in each case the rate of deduction Holder or withholding of, any such Taxes)beneficial owner is legally eligible to do so;
(3) any Taxes that are payable otherwise than by deduction or withholding from a payment on or with respect to the Notes or any guarantee of the NotesNote Guarantee;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying AgentAgent in the United Kingdom or any member state of the European Union;
(6) any Taxes payable under imposed on or with respect to a payment to a Holder that is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment or Note, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note;
(7) any Taxes imposed pursuant to or in connection with Sections 1471 through 1474 of the Code as of Code, the date of the Offering Memorandum (United States Treasury Regulations thereunder or any amended similar law or successor version that is substantively comparable regulations adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and not materially more onerous the United States with respect to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements)foregoing; or
(7) 8) any combination of the above. .
(b) Such Additional Amounts will also not be payable (x) if to the extent the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is requiredrequired for payment) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders)Holder, except for Additional Amounts with respect to the extent Taxes that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting imposed had the Holder presented the Note for payment on any date during within such 30-30 day period or (y) where, had the beneficial owner of the Note been the Holder, except for Additional Amounts with respect to Taxes that would have been imposed had the Holder of presented the NoteNote for payment within such 30-day period, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) 8) inclusive above. , but only if there is no material cost or legal restriction associated with transferring the Note to such beneficial owner.
(c) The non-U.S. Payors will Payor shall (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will shall 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes Taxes, in such form as provided in the ordinary course by the Relevant Taxing Jurisdiction and will as is reasonably available to the Payor, and shall provide such certified copies to the Trustee Trustee. Such copies shall be made available to the Holders upon request and shall be made available at the Holdersoffices of the Paying Agent. If, notwithstanding The Payor shall attach to each certified copy a certificate stating (x) that the efforts 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 non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. withholding Taxes paid per €1,000 principal amount of Notes.
(d) If any non-U.S. Payor will becomes aware that it shall be obligated to pay Additional Amounts under or with respect to any payment made on the Notesany Note or Note Guarantee, at least 30 days prior to the date of such payment, the non-U.S. Payor will shall deliver to the Trustee and the Paying Agent 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 (unless such obligation to pay Additional Amounts arises arises, or the Payor becomes aware of such obligation, less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall may deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date but in any event no less than 2 (two) Business Days prior to the payment date). The Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate without further inquiry, as conclusive proof that such payments are necessary. .
(e) Wherever in this Indenture, Indenture or the Notes or any guarantee of the Notes Note Guarantees there is mention ofare mentioned, in any context:
(1) the payment of principal;
(2) purchase or redemption prices or purchase prices in connection with a purchase or redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; , such reference shall be deemed to include payment of Additional Amounts as described under pursuant to this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(f) The non-U.S. Payors will Payor shall pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture Indenture, the Proceeds Loan Agreement, the Intercreditor Agreements, the other Security Documents or any other document or instrument in relation thereto (other than a transfer or exchange of the Notes). ) excluding any such Taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction.
(g) The foregoing obligations of this Section 2.13 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor the Issuer or any Guarantor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Encore Capital Group Inc)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor the Company on the Securities (whether or with respect to not in the Notes or any guarantee form of the Notes will Definitive Securities) shall be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “"Taxes”") imposed or levied by or on behalf of the United Kingdom or any political subdivision thereof or any authority having power to tax therein (each a "U.K. Tax Authority"), unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will U.K. Tax Authority shall at any time be required from on any payments made by the Company with respect to the Notes or any guarantee of the NotesSecurities, including payments of principal, redemption price, interest interest, liquidated damages or premium, if any, the non-U.S. Payor will Company shall pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of the Securities or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts)deduction, will not be less than equal the respective amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will shall be payable for or on account ofwith respect to:
(1i) in the case of Securities listed on a Recognized Stock Exchange at the time such Additional Amounts would be payable, any payments on a Security held by or on behalf of a Holder or a beneficial owner who is liable for such Taxes that would not have been so imposed in respect of such Security by reason of the Holder or levied but for beneficial owner having some connection with the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction United Kingdom (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing JurisdictionUnited Kingdom) but excluding, in each case, any connection arising solely from other than by the acquisition, ownership or mere holding of such Notes Security or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof;
(2ii) in the case of Securities listed on a Recognized Stock Exchange at the time such Additional Amounts would be payable, any Taxes that would not have been so are imposed or levied if withheld as a result of a change in law after the Issue Date where such withholding or imposition is Exh. T3C-B-2 by reason of the failure of the Holder or beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably Security to comply with that request) any request by the Company to provide information concerning the nationality, residence or identity of such Holder or beneficial owner or to make a any declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or reporting requirement for exemption fromrequirement, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction taxing jurisdiction as a precondition to exemption from, from all or reduction in the rate part of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5iii) any Taxes imposed except in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 case of the Code as winding up of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with)Company, any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had Security presented the Note for payment (where presentation is required) within in the United Kingdom (unless by reason of the Company's actions presentment could not have been made elsewhere); or
(iv) any Security presented for payment (where Securities are in the form of Definitive Securities and presentation is required) more than 30 days after the relevant payment was due and is first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts had the Security been presented on presenting the Note for payment on any date during last day of such 30-30 day period or (y) period). Such Additional Amounts shall also not be payable where, had the beneficial owner of the Note Security been the Holder of the NoteSecurity, such beneficial owner he would not have been entitled to payment of Additional Amounts by reason of any of clauses (1i) to (7iv) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted Upon request, the full amount deducted or withheld Company shall provide the Trustee with documentation satisfactory to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies documentation shall be made available to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinupon request.
Appears in 1 contract
Sources: Indenture (Texon International PLC)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by the Company, any Note Guarantor or a non-U.S. Payor on or with respect to the Notes or successor of any guarantee of the foregoing (each a “Payor”) on the Senior Notes will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “Taxes”) unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States Ireland or any political subdivision or governmental authority thereof or therein having power to tax;
(2) any jurisdiction from or through which payment on the Senior Notes, the Senior Notes eircom Guarantee or any guarantee of the Notes Additional Note Guarantee is made by or on behalf of a non-U.S. Payormade, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. the Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses Sections 4.15(a)(1), (12) and (23), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of the Senior Notes or the Senior Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Senior Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, over the relevant Holderholder, if such Holder the relevant holder is an estate, nominee, trust, partnership, limited liability company trust or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than by the acquisition, mere ownership or holding of such Notes or any guarantee of the Notes Senior Note or the enforcement or receipt of any payment payments in respect thereof;
(2) any Taxes that would not have been so imposed or levied if (i) the Holder holder of the Senior Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence non-residence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that (x) such declaration of nonresidence non-residence or other claim, claim or filing or requirement for exemption is required by the applicable law, treaty, regulation or official administrative practice law of the Relevant Taxing Jurisdiction as a precondition to exemption fromfrom the requirement to deduct or withhold all or a part of any such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the Relevant Taxing Jurisdiction, the relevant holder at that time has been notified (in accordance with the procedures set forth in Section 3.4) by the Payor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption is required to be made), or reduction (ii) in the rate case of deduction Taxes imposed by or withholding ofon behalf of Ireland or any political subdivision or governmental authority thereof or therein having the power to tax (each of the foregoing an “Irish Taxing Jurisdiction”), the holder of the Senior Note had provided such other evidence as is reasonably necessary to enable the Payor or any other person through whom payment may be made to determine the residence of the holder (provided that (x) such determination of residence is necessary under the applicable laws of the Irish Taxing Jurisdiction to determine the application of the exemption from the requirement to deduct or withhold all or a part of any such TaxesTaxes and (y) at least 30 days prior to the first payment date with respect to which such determination is required under the applicable law of the Irish Taxing Jurisdiction, the relevant holder at that time has been notified (in accordance with the procedures set forth in each relevant Note under the caption “Selection and Notice of Redemption”) by the Payor or any other person through whom payment may be made that such evidence must be provided);
(3) any Senior 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 Senior Note been presented during such 30 day period);
(4) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any or interest, if any, on or with respect to the Senior Notes or under any guarantee of the NotesNote Guarantee;
(45) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(56) any Taxes imposed on a payment to an individual and required to be made pursuant to the European Union Directive (the “Directive”) on the taxation of savings implemented by the ECOFIN Council meeting of June 3, 2003 or any law implementing or complying with, or introduced in order to conform to, such Directive;
(7) any Taxes imposed in connection with a Senior Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Senior Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 paying agent in a member state of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements)European Union; or
(7) 8) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Senior Note been the Holder of the Senior Note, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) 8) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Additional Amounts. After Additional Amounts shall be payable in respect of the occurrence Notes pursuant to Section 10.4 of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor the Base Indenture. Solely for purposes of the Notes, Section 10.4 of the Base Indenture is hereby replaced in interest to an Obligor (each such Obligor or successor, a its entirety as follows: “non-U.S. Payor”), all All payments made by a non-U.S. Payor on or with respect to the Notes Issuer or any guarantee of Guarantor (each a “Payor”) on the Notes will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “Taxes”) unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any the guarantee of the Notes thereof is made by or on behalf of a non-U.S. Payormade, or any political subdivision or of governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) other jurisdiction in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident or engaged in business for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made by a Payor with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by each Holder of the Holder Notes, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1a) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlorsenior, beneficiary, partnerpartner of, member or shareholder of, or possessor of power over, over the relevant Holder, if such the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being or having been a citizen or citizen, resident or treated as a resident or a national of, thereof or being or having been present or engaged in a trade or carrying on a business in, or maintaining having had a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than by the acquisition, mere ownership or holding of such Notes or any enforcement of rights thereunder or under the guarantee of the Notes thereof or the enforcement or receipt of any payment payments in respect thereof;
(2b) any Taxes that would not have been so to the extent such Taxes are imposed or levied if withheld by reason of the failure of a Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably Notes to comply with that request(x) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrequirement, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is whether required by the applicable lawstatute, treaty, regulation or official administrative practice of the a Relevant Taxing Jurisdiction 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 a certification that the Holder is not resident in the Relevant Taxing Jurisdiction) (provided that at least 30 days prior to the first payment date with respect to which such withholding, deduction or imposition is required under the applicable law of the Relevant Taxing Jurisdiction, the relevant Holder at that time has been notified (in the manner contemplated by the Indenture) by the Payor or any other person through whom payment may be made of such Taxescertification, identification, information or other reporting requirement); or (y) any requirement under U.S. tax laws and regulations to establish any entitlement to a partial or complete exemption from such Taxes to which such Holder is legally entitled (including, but not limited to, by providing Internal Revenue Service Form W-8BEN, Form W-8BEN-E, Form W-8ECI, as applicable, or any subsequent versions thereof or successor thereto);
(3c) any Taxes, to the extent such Taxes were imposed as a result of a note being presented for payment (where Notes are legended Notes in certificated form 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 such note been presented during such 30-day period);
(d) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any under the guarantee of the Notesthereof;
(4e) any estate, inheritance, gift, salessale, transfer, excise, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(5f) any Taxes withheld, deducted or imposed on a payment to an individual or a “residual entity” (as interpreted within the context of European Council Directive 2003/48/EC) that are required to be made pursuant to European Council Directive 2003/48/EC Directive or any other directive implementing the conclusions of the ECOFIN Council meeting on 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;
(g) any Taxes imposed in connection on or with respect to a Note presented for payment (where presentation is required for payment) by or on behalf of made to a Holder or beneficial owner of the Notes who would have been able to avoid such Tax imposition by presenting (where the Notes are legended Notes in certificated form and presentation is required) the relevant Note to, or otherwise accepting payment from, note to another Paying AgentAgent in a member state of the European Union;
(6h) any Taxes payable imposed on or with respect to any payment by the Issuer or the Parent to the Holder if such Holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, to the extent that Taxes would not have been imposed on such payment had such Holder been the sole beneficial owner of such Note;
(i) any Taxes imposed by reason of the Holder:
A. owning or having owned, directly or indirectly, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Issuer, ▇▇▇▇▇▇▇ Company, a Michigan corporation that is an indirect wholly-owned subsidiary of Parent, or Parent, as described in Section 871(h)(3)(B) of the Code;
B. being a bank receiving interest described in Section 881(c)(3)(A) of the Code; or
C. being a controlled foreign corporation (a “CFC”) that is related to the Issuer, ▇▇▇▇▇▇▇ Company or Parent by stock ownership within the meaning of Section 881(c)(3)(C) of the Code;
(j) any Taxes imposed as a result of such Holder’s present or former status under the Code as a personal holding company, a foreign personal holding company, a CFC, a passive foreign investment company, a foreign tax exempt organization or a corporation which accumulates earnings to avoid U.S. federal income tax;
(k) any Taxes imposed under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with)Code, any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements or treaties (and any related legislation, rules, or official administrative practices) implementing the foregoing foregoing;
(including l) any legislation or other official guidance relating to such intergovernmental agreements)U.S. federal backup withholding Taxes; or
(7m) any combination of the items (a) through (l) above. Such Additional Amounts will also not be payable (x) if As used in this Section 10.4, the payment could have been made without such deduction or withholding if the beneficiary term “Holder” shall include both a Holder of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due Notes and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the a beneficial owner of the Note been Notes, as applicable. In the Holder of event the NoteNotes are held in global form, such the right to receive Additional Amounts shall be determined at the beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive abovelevel. The non-U.S. Payors Payor will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes. The Payor will furnish to the Trustee (or to a Holder upon written request), within a reasonable time after the date the payment of any Taxes and will provide so deducted or withheld is made, such certified copies to each Holder. Copies of such documentation will be available for inspection during ordinary business hours at the office of the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and by the Holders of the Notes upon request and will be made available at the offices of the Paying Agent . At least 30 days prior to each date on which any payment under or with other reasonable evidence. If any non-U.S. respect to the Notes or the guarantee thereof 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 Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor will deliver to the Trustee an Officer’s Certificate officers’ certificate stating the fact that such Additional Amounts will be payable and the amount amounts so payable and will furnish such other information necessary to enable the Paying Agent to pay such Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver . Each such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee officers’ certificate shall be entitled to rely solely on relied upon until receipt of a further officers’ certificate addressing such Officer’s Certificate as conclusive proof that such payments are necessarymatters. Wherever in this the Indenture, the Notes or any the guarantee of the Notes there is mention of, are references in any context, to:
(1) the payment of principal;,
(2) redemption prices or purchase prices in connection with a redemption or purchase of Notes;interest, or
(3) interest; or
(4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this Section 2.13 heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors Payor will pay any present or future stamp, court or documentary Taxesissuance, or any other excise, property or transfer and similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, delivery or registration or enforcement of any Notes, this Indenture Notes or any other document or instrument in relation thereto referred to therein (other than a transfer of the Notes), or the receipt of any payments with respect to the Notes or the guarantee, or the enforcement of the Notes, the guarantee thereof or any other such document or instrument following the occurrence of any event of default with respect to the Notes, limited, solely in the case of Taxes attributable to the receipt of any payments with respect to the Notes or the guarantee, to any Taxes imposed in a Relevant Taxing Jurisdiction that are not excluded under clause (a) through (d), or (f) through (l), or any combination thereof. The foregoing obligations will survive any termination, defeasance or discharge of this the Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.”
Appears in 1 contract
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor the Company on or with respect to the Notes (whether or any guarantee not in the form of the Notes Definitive Notes) will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “"Taxes”") unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of (1) any jurisdiction (other than Luxembourg, the United States States, Ireland or any political subdivision or governmental authority of any thereof or therein having power to tax, (2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payormade, or any political subdivision or governmental authority thereof or therein having the power to tax; or
tax or (23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. the Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1), (2) and (23), a “"Relevant Taxing Jurisdiction”"), will unless the withholding or deduction of Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or any guarantee of under the NotesSubsidiary Guarantee, including payments of principal, redemption priceRedemption Price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; providedPROVIDED, howeverHOWEVER, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any payments to a Holder or beneficial owner who is liable for such Taxes that would not have been so imposed in respect of such Note by reason of the Holder's or levied but for the existence of beneficial owner's having any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and with the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than by the acquisition, ownership or mere holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof;
(2) any Taxes that would not have been so are imposed or levied if withheld where such withholding or imposition is by reason of the failure of the Holder or beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) any reasonable and timely request by the Payor to provide information concerning the nationality, residence or identity of such Holder or beneficial owner or to make a any declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrelating to such matters, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation regulation, protocol, or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from all or reduction part of such Taxes;
(3) except in the rate case of deduction or withholding ofthe winding up of the Payor, any such TaxesNote presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor's actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);
(34) 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 during such 30 day period);
(5) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest on or with respect to the Notes or any guarantee of the Notes;
(46) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(57) a Tax imposed on a payment to an individual and required to be made pursuant to any Taxes European Union Directive (a "Directive") on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(8) a Tax imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, to another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 paying agent in a member state of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the aboveEuropean Union. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) 8) inclusive above. The non-U.S. Payors Upon request, the Company will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted provide the full amount deducted or withheld Trustee with documentation satisfactory to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and documentation will provide such certified copies be made available to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinupon request.
Appears in 1 contract
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor the Company on or with respect to the Notes (whether or any guarantee not in the form of the Notes Definitive Notes) will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “"Taxes”") unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of (1) any jurisdiction (other than Luxembourg, the United States States, Ireland or any political subdivision or governmental authority of any thereof or therein having power to tax, (2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payormade, or any political subdivision or governmental authority thereof or therein having the power to tax; or
tax or (23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. the Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1), (2) and (23), a “"Relevant Taxing Jurisdiction”"), will unless the withholding or deduction of Taxes is then required by law. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption priceRedemption Price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; providedPROVIDED, howeverHOWEVER, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any payments to a Holder or beneficial owner who is liable for such Taxes that would not have been so imposed in respect of such Note by reason of the Holder's or levied but for the existence of beneficial owner's having any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and with the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than by the acquisition, ownership or mere holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof;
(2) any Taxes that would not have been so are imposed or levied if withheld where such withholding or imposition is by reason of the failure of the Holder or beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) any reasonable and timely request by the Payor to provide information concerning the nationality, residence or identity of such Holder or beneficial owner or to make a any declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrelating to such matters, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation regulation, protocol, or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from all or reduction part of such Taxes;
(3) except in the rate case of deduction or withholding ofthe winding up of the Payor, any such TaxesNote presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor's actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);
(34) 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 during such 30 day period);
(5) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest on or with respect to the Notes or any guarantee of the Notes;
(46) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(57) a Tax imposed on a payment to an individual and required to be made pursuant to any Taxes European Union Directive (a "Directive") on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(8) a Tax imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, to another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 paying agent in a member state of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the aboveEuropean Union. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) 8) inclusive above. The non-U.S. Payors Upon request, the Company will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted provide the full amount deducted or withheld Trustee with documentation satisfactory to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and documentation will provide such certified copies be made available to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinupon request.
Appears in 1 contract
Sources: Euro Indenture (MDCP Acquisitions I)
Additional Amounts. After All payments made by or on behalf of (i) any Guarantor or successor in interest thereto that is not organized under the laws of the United States or any political subdivision or governmental authority thereof or (ii) after the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or the Issuer, any successor in interest to an Obligor the Issuer (each such Obligor or successoreach, a “non-U.S. Payor”), all payments made by a non-U.S. Payor ) on or with respect to the Notes or any guarantee of the Notes will be made without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. such Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Broadcom Inc.)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments made by the Company, a non-U.S. Payor Successor Company or a Guarantor (a “Payor”) on or with respect to the Notes or any guarantee of the Notes Note Guarantees will be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectively, “Taxes”) Taxes unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) (i) the United States of America, (ii) any jurisdiction (other than State of the United States or the District of Columbia, (iii) the Grand Duchy of Luxembourg, (iv) the United Kingdom or (v) with respect to each of the jurisdictions in (i)-(iv), any political subdivision or governmental authority Governmental Authority thereof or therein having power to tax;
(2) any jurisdiction from or through which payment on the Notes any such Note or any guarantee of the Notes Note Guarantee is made by the Company, Successor Company, Guarantor or on behalf of a non-U.S. Payortheir agents, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax; or
(23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. the Payor that actually makes a payment on the Notes is incorporated or its guarantee of the Notes is organized organized, engaged in business for tax purposes or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority Governmental Authority thereof or therein having the power to tax (each of clauses (1), (2) and (23), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes any Note or any guarantee of the NotesNote Guarantee, including payments of principal, redemption price, interest or premium, if any, or interest, the non-U.S. Payor will shall pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that which would have been received in respect of such payments on the Notes any such Note or the guarantees of the Notes Note Guarantee in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, over the relevant Holder, if such the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including including, but not limited to, being a citizen or resident or national or domiciliary of, or carrying on the existence of a business, a permanent establishment, a dependent agent, a place of business or maintaining a permanent establishment in, place of management present or being physically deemed present in, in the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes Note or any guarantee enforcement of the Notes rights hereunder or under a Note Guarantee or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that are imposed or withheld on behalf of a Holder who would not have been so imposed able to avoid such withholding or levied if the Holder of the Note had complied deduction by complying with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any applicable certification, documentation, identification, information or other reporting requirement for exemption fromconcerning the nationality, residence, identity or reduction in connection with the rate of, withholding to which it is entitled (provided that Relevant Taxing Jurisdiction if such declaration of nonresidence or other claim, filing or requirement compliance is required by the applicable law, treaty, statute or regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to relief or exemption from, applicable withholding tax or reduction in the rate of deduction or withholding of, any such Taxes)duty;
(3) any Taxes that are payable otherwise than by deduction or withholding from a payment on or with respect to the Notes or any guarantee of the NotesNote Guarantee;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying AgentAgent in the United Kingdom or any member state of the European Union;
(6) any Taxes payable under imposed on or with respect to a payment to a Holder that is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment or Note, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note;
(7) any Taxes imposed pursuant to or in connection with Sections 1471 through 1474 of the Code Code, the United States Treasury Regulations thereunder or any similar law or regulations adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing; or
(8) any Taxes required to be withheld by any Paying Agent from any payment of principal of, or interest on, any Note if such payment can be made without such withholding by any other Paying Agent outside the United States;
(9) any Taxes imposed by reason of such Holder’s past or present status, for U.S. federal income tax purposes, as a passive foreign investment company (including a qualified election fund), a controlled foreign corporation, a personal holding company, a private foundation or other tax exempt organization or as a corporation which accumulates earnings to avoid United States federal income tax;
(10) any Taxes imposed on interest received by a Holder or beneficial owner of a Note that is a 10% shareholder (as defined in Section 871(h)(3)(B) of the date Code and the regulations that may be promulgated thereunder) of the Offering Memorandum (Company, being a bank whose receipt of interest on a Note is described in Section 881(c)(3)(A) of the Code and regulations that may be promulgated thereunder or any amended or successor version being a controlled foreign corporation that is substantively comparable and not materially more onerous related to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreementsCompany as described in Section 881(c)(3)(C); or
(711) any combination of the above. .
(b) Such Additional Amounts will also not be payable (x) if to the extent the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is requiredrequired for payment) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders)Holder, except for Additional Amounts with respect to the extent Taxes that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting imposed had the Holder presented the Note for payment on any date during within such 30-30 day period or (y) where, had the beneficial owner of the Note been the Holder, except for Additional Amounts with respect to Taxes that would have been imposed had the Holder of presented the NoteNote for payment within such 30-day period, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (711) inclusive above. , but only if there is no material cost or legal restriction associated with transferring the Note to such beneficial owner.
(c) The non-U.S. Payors will Payor shall (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will shall 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes Taxes, in such form as provided in the ordinary course by the Relevant Taxing Jurisdiction and will as is reasonably available to the Payor, and shall provide such certified copies to the Trustee Trustee. Such copies shall be made available to the Holders upon request and shall be made available during normal business hours at the Holdersoffices of the Paying Agent. If, notwithstanding The Payor shall attach to each certified copy a certificate stating (x) that the efforts 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 non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. withholding Taxes paid per €1,000 principal amount of Notes.
(d) If any non-U.S. Payor will becomes aware that it shall be obligated to pay Additional Amounts under or with respect to any payment made on the Notesany Note or Note Guarantee, at least 30 days prior to the date of such payment, the non-U.S. Payor will shall deliver to the Trustee and the Paying Agent 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 (unless such obligation to pay Additional Amounts arises arises, or the Payor becomes aware of such obligation, less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall may deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date but in any event no less than 2 (two) Business Days prior to the payment date). The Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Certificate without further inquiry, as conclusive proof that such payments are necessary. .
(e) Wherever in this Indenture, Indenture or the Notes or any guarantee of the Notes Note Guarantees there is mention ofare mentioned, in any context:
(1) the payment of principal;
(2) purchase or redemption prices or purchase prices in connection with a purchase or redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; , such reference shall be deemed to include payment of Additional Amounts as described under pursuant to this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. .
(f) The non-U.S. Payors will Payor shall pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture Indenture, the Intercreditor Agreement, the other Security Documents or any other document or instrument in relation thereto (other than a transfer or exchange of the Notes). ) excluding any such Taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Taxing Jurisdiction.
(g) The foregoing obligations of this Section 2.13 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor the Company or any Guarantor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Encore Capital Group Inc)
Additional Amounts. After (a) All payments and deliveries made by, or on behalf of, the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor Company or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on the Company under or with respect to this Indenture and the Notes Notes, including, but not limited to, payments of principal (including, if applicable, the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price), premium, if any, payments of interest, including any Additional Interest, and deliveries of ADSs or any guarantee other consideration due on conversion of the Notes will a Note (together with payments of cash for any Fractional ADS or other consideration), shall be made without withholding withholding, deduction or deduction reduction for any other collection at source for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature imposed or levied (collectively, including any penalties and interest related thereto) (“Taxesapplicable taxes”) unless such withholding withholding, deduction or deduction reduction is required by law or by regulation or governmental policy having the interpretation of administration force of law. If In the event that any such withholding, deduction or withholding for, or on account of, any Taxes imposed or levied reduction is so required by or on behalf of:
within (1) the Cayman Islands or the People’s Republic of China, (2) any jurisdiction (other than in which the United States Company or any political subdivision successor are, for tax purposes, incorporated, organized or governmental authority thereof resident or therein having power to taxdoing business or (3) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf deemed made (each of a non-U.S. Payor(1), or (2) and (3), and in each case, any political subdivision or governmental taxing authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposestherein, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2)as applicable, a “Relevant Taxing Jurisdiction”), will at the Company or any time be required from any payments made with respect successor to the Notes Company shall pay or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) deliver to each Holder such additional amounts of cash, ADSs or other consideration, as applicable (the “Additional Amounts”) as may be necessary in order to ensure that the net amounts amount received in respect of such payments by the Holder beneficial owner of the Notes after such withholding or deduction (including any such withholding, deduction or withholding from such reduction (and after deducting any taxes on the Additional Amounts), will not be less than ) shall equal the amounts that would have been received in respect of by such payments on the Notes beneficial owner had no such withholding, deduction or the guarantees of the Notes in the absence of such withholding or deductionreduction been required; provided, however, provided that no such Additional Amounts will shall be payable payable:
(1) for or on account of:
(1A) any Taxes applicable taxes that would not have been so imposed or levied but for for:
(i) the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor beneficial owner of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) Note and the Relevant Taxing Jurisdiction Jurisdiction, other than merely acquiring or holding such Note, receiving ADSs (including together with payment of cash for any Fractional ADS) or other consideration upon conversion of such Note or the receipt of payments or the exercise or enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a citizen national, domiciliary or resident of such Relevant Taxing Jurisdiction or national of, treated as a resident thereof or carrying on being or having been physically present or engaged in a trade or business therein or maintaining having had a permanent establishment intherein;
(ii) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of (including the Redemption Price, the Repurchase Price and Fundamental Change Repurchase Price, if applicable) and interest on such Note or being physically present inthe delivery of ADSs (together with payment of cash for any Fractional ADS) upon conversion of such Note became due and payable pursuant to the terms thereof or was made or duly provided for (except to the extent that the Holder or beneficial owner would have been entitled to additional amounts had the Note been presented on the last day of such 30 day period); or
(iii) the failure of the Holder or beneficial owner to comply with a timely written request from the Company or any successor of the Company, addressed to the Holder, to the extent such Holder or beneficial owner is legally entitled, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a any declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or other reporting requirement for exemption fromrelating to such matters, or reduction in if and to the rate of, withholding to which it is entitled (provided extent that due and timely compliance with such declaration of nonresidence or other claim, filing or requirement request is required by the applicable law, treatystatute, regulation or official administrative practice of the Relevant Taxing Jurisdiction in order to reduce or eliminate any withholding or deduction as a precondition to exemption fromwhich Additional Amounts would have otherwise been payable to such Holder or beneficial owner; provided that, in the case of applicable taxes imposed by the People’s Republic of China, the provision of any certification, information, documents, or reduction other evidence described in this clause (1)(A)(iii) would not be materially more onerous, in form, in procedure, or in the rate substance of deduction information disclosed, to a Holder or withholding ofbeneficial owner than comparable information or other reporting requirements imposed under U.S. tax law, regulations and administrative practice (such as U.S. Internal Revenue Service Forms W-8BEN, W-8BEN-E and W-9, or any successor forms), and reasonable procedure for the collection of such Taxes)documentation has been implemented and is in effect at the time that such written request is received;
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4B) any estate, inheritance, gift, sales, excisesale, transfer, personal property or similar Taxesapplicable tax or excise tax imposed on transfer of the Notes;
(5C) any Taxes imposed in connection applicable tax that is payable otherwise than by withholding, deduction or any other collection at source from payments or deliveries under or with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able respect to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying AgentNotes;
(6D) any Taxes payable applicable tax required to be withheld or deducted under Sections 1471 through to 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version versions of such Sections that is substantively comparable and not materially more onerous to comply with) (“FATCA”), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating thereunder, any intergovernmental agreement or agreement pursuant to such Section 1471(b)(1) of the Code entered into in connection with FATCA, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreementsagreement; or
(E) any combination of applicable taxes referred to in the preceding clauses (A), (B), (C) or (D); or
(72) with respect to any combination payment of the above. Such principal of (including the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable), premium, if any, or interest, including any Additional Amounts will also not be payable Interest, on, such Note or the delivery of ADSs (xtogether with payment of cash for 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 could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except delivery to the extent that such payment or delivery would be required to be included in the Holder income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a partner or member of that partnership or a beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner who would not have been entitled to payment of such Additional Amounts had that beneficiary, settlor, partner, member or beneficial owner been the Holder thereof.
(b) The Company or its successor shall pay and indemnify each Holder and beneficial owner for any present or future stamp, issue, registration, value added, court or documentary taxes, or any other excise or property taxes, charges or similar levies or taxes (including penalties, interest and any other reasonable expenses related thereto) which are levied by reason any Relevant Taxing Jurisdiction (and in the case of enforcement, any jurisdiction) on the execution, delivery, registration or enforcement of any of clauses the Notes, this Indenture or any other document or instrument referred to therein or the receipt of payments with respect thereto (1including the receipt of ADSs (together with payment of cash for any fractional ADS) or other consideration due upon conversion).
(c) If the Company or its successor becomes obligated to (7) inclusive above. The non-U.S. Payors will (i) make pay Additional Amounts with respect to any payment or cause to be made any required withholding delivery under or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld with respect to the relevant taxing authority of Notes, the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted Company or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies its successor shall deliver to the Trustee and the Holders. IfPaying Agent, notwithstanding if other than the efforts of such non-U.S. Payor to obtain such receiptsTrustee, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, a date that is at least 30 days prior to the date of such paymentthat payment or delivery (unless the obligation to pay Additional Amounts arises after the 30th day prior to that payment or delivery date, in which case the non-U.S. Payor will deliver to Company or its successor shall notify the Trustee and the Paying Agent promptly thereafter) an Officer’s Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and such payable. The Officers’ Certificate must also set forth any other information reasonably necessary to enable the Paying Agent or the Trustee, as the case may be, (on behalf of the Company and subject to receipt of funds from the Company pursuant to the last paragraph in Section 4.04(a)) to pay Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment or delivery date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee and the Paying Agent shall be entitled to rely solely on such Officer’s Officers’ Certificate as conclusive proof that such payments are necessarynecessary and that the estimate of such Additional Amounts set forth in such Officers’ Certificate is accurate. Wherever The Company or its successor shall provide the Trustee and the Paying Agent with documentation reasonably satisfactory to the Trustee evidencing the payment of Additional Amounts.
(d) The Company or its successor shall make all withholdings and deductions required by law and shall remit the full amount deducted or withheld to the relevant tax authority in this Indentureaccordance with applicable law. The Company or its successor shall provide to the Trustee a certified copy of an official receipt or, if official receipts are not obtainable, other documents reasonably satisfactory to the Notes Trustee evidencing the payment of any applicable taxes so deducted or any guarantee withheld. The Company or its successor will attach to each certified copy or other document a certificate stating the amount of such applicable taxes paid per $1,000 principal amount of the Notes there is mention ofthen outstanding. Upon request, copies of those receipts or other documentation, as the case may be, shall be made available by the Trustee to the Holders of the Notes upon written request.
(e) Any reference in this Indenture or the Notes in any context:
context to the delivery of ADSs (1together with payment of cash for any Fractional ADS) or other consideration upon conversion of any Note or the payment of principal;
principal of (2including the Redemption Price, the Repurchase Price and Fundamental Change Repurchase Price, if applicable) redemption prices and any premium or purchase prices in connection with a redemption interest (including any Additional Interest) on any Note or purchase of Notes;
(3) interest; or
(4) any other amount payable on or with respect to any of the Notes or any guarantee of the Notes; such reference Note, shall be deemed to include payment of Additional Amounts as described under this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in with respect thereof. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes to that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, amount pursuant to this Indenture or any other document or instrument in relation thereto Section 4.07.
(other than a transfer of the Notes). f) The foregoing obligations will shall survive any termination, defeasance or discharge of this Indenture or any transfer by a Holder or beneficial owner of its Notes and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor the Company is then, for tax purposes, incorporated, organized or otherwise considered to be a resident for tax purposes or doing business (or any political subdivision or taxing authority or agency thereof or therein) or any jurisdiction from or through which payment under or with respect to the Notes is made or deemed made by or on behalf of such successor (or any political subdivision or taxing authority thereof or therein).
Appears in 1 contract
Sources: Indenture (Qudian Inc.)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. the Payor on or with respect to the Notes or any guarantee of the Notes Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of (1) any jurisdiction (other than in which the United States Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes Guarantees is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposesmade, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1) and (2), a “Relevant Taxing Jurisdiction”), will 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 of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or any guarantee of the NotesGuarantees, including including, without limitation, payments of principal, redemption priceRedemption Price, interest or premium, if any, the non-U.S. Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any Taxes that would not have been so withholding or deduction imposed or levied but by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or beneficial owner who is liable for such Taxes in respect of the existence Notes by reason of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partnermember, member partner or shareholder of, or possessor of power over, over the relevant Holder, if such the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the or beneficial owner having any present or former connection with such Relevant Taxing Jurisdiction (including including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the such Relevant Taxing Jurisdiction) but excluding, in each case, any other than a connection arising solely from the acquisition, ownership or holding of such Notes Note or any guarantee enforcement of rights thereunder or the receipt of payments in respect of the Notes or the enforcement or receipt of with respect to any payment in respect thereofGuarantee;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note or beneficial owner had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence non-residence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that (x) such declaration of nonresidence non-residence or other claim, claim or filing or requirement for exemption is required by the applicable law, treaty, regulation or official administrative practice law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption fromfrom the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or reduction beneficial owner at that time has been notified in writing by the rate Payor or any other person through whom payment may be made that a declaration of deduction non-residence or withholding of, any such Taxesother claim or filing for exemption is required to be made);
(3) except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);
(4) any Note presented for payment (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 during such 30 day period);
(5) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to the Notes or any guarantee of the NotesGuarantee;
(46) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(57) any Taxes a Tax imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting accept payment from, another Paying Agentpaying agent in a member state of the European Union;
(6) 8) any Taxes payable under Sections imposed, deducted or withheld pursuant to section 1471(b) of the Code or otherwise imposed pursuant to sections 1471 through 1474 of the Code Code, in each case, as of the date of the Offering Memorandum Issue Date (or and any amended or successor version that is substantively comparable and not materially more onerous to comply withcomparable), any current or future regulations or agreements thereunder, official interpretations thereof, thereof or any agreements entered into pursuant law implementing an intergovernmental agreement relating thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(79) any combination of the clauses (1) through (8) above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (79) inclusive above. The non-U.S. Payors Upon request, the Issuer will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted provide the full amount deducted or withheld Trustee with documentation satisfactory to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and documentation will provide such certified copies be made available to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinupon request.
Appears in 1 contract
Sources: Indenture (Smurfit WestRock PLC)
Additional Amounts. After All payments made by or on behalf of the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor Company, the Subsidiary Guarantors or any successor in interest to an Obligor thereto (each such Obligor or successoreach, a “non-U.S. Payor”)) under, all payments made by a non-U.S. Payor on or with respect to to, the Notes Securities or any guarantee of the Notes Note Guarantees will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future tax, duty, levy, impost, assessment or other similar governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) unless such withholding imposed, levied, collected or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied assessed by or on behalf of:
of (1) any jurisdiction (other than the United States Grand Duchy of Luxembourg or any political subdivision or governmental authority thereof or therein having power to tax, (2) any jurisdiction from or through which payment on the Notes Securities or any guarantee of the Notes Note Guarantees is made by or on behalf of a non-U.S. the Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
tax or (23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes is organized, resident or its guarantee of the Notes is organized or otherwise considered deemed to be a resident for tax purposesdoing business, or any political subdivision or governmental authority thereof or therein having the power to tax (each of jurisdiction described in clauses (1), (2) and (23), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law or the interpretation or administration thereof. If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction will at any time be required from any payments made with respect to the Notes Securities or any guarantee of the Notes, Note Guarantees including payments of principal, redemption price, interest or premium, if any, redemption price or interest, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments received by the Holder each Holder, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that which would have been received by each Holder in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, partnermember, member partner or shareholder of, or possessor of power over, the relevant HolderHolder or beneficial owner, if such the relevant Holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company company, partnership or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, other than the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding receipt of such Notes or any guarantee of the Notes payment or the acquisition or ownership of such Security or enforcement or receipt of any payment in respect thereofrights thereunder);
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, transfer or personal property tax;
(3) any Taxes which are imposed, payable or similar due because the Securities are presented (where presentation is required) for payment more than 30 days after the date such payment was due and payable or was provided for, whichever is later, except for Additional Amounts with respect to Taxes that would have been imposed had the Holder presented the Security for payment on the last day of such 30-day period;
(4) any Taxes that are imposed or withheld by reason of the failure of the Holder or beneficial owner of a Security to comply, at our written request, with certification, identification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection of the Holder or such beneficial owner with the Relevant Taxing Jurisdiction or to make, at our written request, any other claim or filing for exemption to which it is entitled if (a) such compliance, making a claim or filing for exemption 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 Taxes, (b) the Payor has given the Holder or the beneficial owner at least 30 days’ notice that the Holder or beneficial owner will be required to provide such certification, identification, documentation or other reporting requirement, and (c) the provision of any certification, identification, information, documentation or other reporting requirement would not be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Security than comparable information or other reporting requirements imposed under U.S. tax law, regulations and administrative practice (such as U.S. Internal Revenue Service Forms W-8BEN-E and W-9);
(5) any Taxes imposed in connection with a Note presented for payment (where presentation withholding or deduction that is required for payment) by or on behalf to be made pursuant to the Luxembourg law of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to23 December 2005, or otherwise accepting payment from, another Paying Agentas amended;
(6) any Taxes payable under Sections 1471 through 1474 which could have been avoided by the presentation (where presentation is required) of the Code as relevant Security to another available paying agent of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements)Payor in a EU Country; or
(7) any combination of the above. Such Also such Additional Amounts will also not be payable with respect to any payment of principal of (xor premium, if any, on) if or interest on such Security to any Holder who is a fiduciary or partnership or any person other than the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice sole beneficial owner of such payment is given to the Holders)payment, except to the extent that the Holder a beneficiary or beneficial owner settlor with respect to such fiduciary, a member of such a partnership or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner payment would not have been entitled to payment of the Additional Amounts by reason of any of clauses had such beneficiary, settlor, member or beneficial owner held such Security directly. The Payor will (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) 2)except as expressly provided below, remit or cause to be remitted the full amount deducted or withheld to the relevant applicable taxing authority of in the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts provide to obtain the Trustee certified copies of tax receipts or, if such tax receipts are not reasonably available, such other documentation to the Trustee evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes. The Payor will attach to such documentation 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 Securities or the Note Guarantees, as applicable, and will provide such certified copies to (y) the Trustee and the Holders. If, notwithstanding the efforts amount of such non-withholding Taxes paid per U.S. Payor to obtain such receipts, dollar principal amount of the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidenceSecurities. If any non-U.S. the Payor will be obligated to pay Additional Amounts with respect to any payment under or with respect to any payment made on the Notes, at least 30 days prior to Securities or the date of such paymentNote Guarantees, the non-U.S. Payor will deliver to the Trustee and deliver notice to the Holders, at least five Business Days prior to the relevant payment date, an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and the amount so payable applicable record date and will set forth such other information necessary to enable the Trustee and Paying Agent to pay such Additional Amounts to Holders of Securities on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver . Each such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such relied upon by the Trustee and Paying Agent without further inquiry until receipt of a further Officer’s Certificate as conclusive proof that addressing such payments are necessarymatters. Wherever The Payor will pay any stamp, issue, registration, documentary, excise, property or other similar taxes and other duties (including interest and penalties) imposed by any Relevant Taxing Jurisdiction payable in respect of the creation, issue, offering, execution or performance of the Securities, this Indenture, the Notes Note Guarantees or any guarantee of the Notes there is mention ofdocumentation with respect thereto and any such taxes, in charges or duties imposed by 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 jurisdiction with respect to any the enforcement of the Notes Securities following the occurrence and during the continuance of any Default. The Company will agree to reimburse each of the Trustee, the paying agents and the Holders of the Securities for any such amounts paid (and reasonably documented) by the Trustee, the paying agents or such Holders; except where any such amounts arise or are due in relation to the registration of the Securities, this Indenture, the Note Guarantees or any guarantee of documentation with respect hereto or referred to therein, where such registration is made on a purely voluntary basis by the Notes; Trustee, the paying agents or such reference shall be deemed to include payment of Additional Amounts as described under this Section 2.13 to Holders (i.e., where such registration is not necessary for the extent thatperfection, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration protection or enforcement of any Notestheir rights in respect of the Securities, this Indenture Indenture, the Note Guarantees or any other document or instrument in relation thereto (other than a transfer of the Notesdocumentation with respect hereto). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein. Whenever in this Indenture there is mentioned, in any context, (1) the payment of principal, premium, if any, or interest, (2) redemption prices or purchase prices in connection with the redemption or purchase of Securities or (3) any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, deducted or withholding Taxes are, were or would be payable in respect thereof. Notwithstanding anything herein, if any withholding or deduction for Taxes is imposed with respect to any payment on the Securities pursuant to FATCA, then (i) the Company, the Subsidiary Guarantors, any paying agent or any other person acting on their behalf shall be entitled to make such deduction or withholding, and (ii) none of the Company, the Subsidiary Guarantors, any paying agent or any other person acting on their behalf will have any obligation to pay any Additional Amounts with respect to any such withholding or deductions imposed pursuant to FATCA.
Appears in 1 contract
Sources: Indenture (Arazi S.a r.l.)
Additional Amounts. After At least 10 days prior to the occurrence first date on which payment of a Non-U.S. Domicile Transaction with respect principal, premium, if any, or interest on the Notes is to be made, and at least 10 days prior to any Obligor or subsequent such date if there has been any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or change with respect to the Notes matters set forth in the Officers' Certificate described in this Section 4.20, the Company will furnish the Trustee and the Paying Agent, if other than the Trustee, with an Officers' Certificate instructing the Trustee and the Paying Agent whether such payment of principal, premium, if any, or any guarantee of interest on the Notes will (whether or not in the form of Definitive Notes) shall be made to the Holders without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “Taxes”"TAXES") imposed or levied by or on behalf of the United States, The United Kingdom of Sweden or any jurisdiction in which the Company or any Successor Company is organized or is otherwise resident for tax purposes or any political subdivision thereof or any authority having power to tax therein or any jurisdiction from or through which payment is made (each, a "RELEVANT TAXING JURISDICTION"), unless such the withholding or deduction of Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will Jurisdiction shall at any time be required from on any payments made by the Company with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, Liquidated Damages, interest or premium, if any, the non-U.S. Payor Company will pay (together with such payments) to the Trustee or the Paying Agent such additional amounts pursuant to paragraph 3 of the Initial Notes and paragraph 2 of the Exchange Notes, as applicable (the “Additional Amounts”"ADDITIONAL AMOUNTS") as may be necessary in order that the net amounts received in respect of such payments by the Holder after such withholding or deduction (including any such deduction or withholding from such Additional Amounts)and, will not be less if paid to a Paying Agent other than the amounts that would have been received in respect of such payments on Trustee, shall provide the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied Trustee with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts documentation evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority such Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies documentation shall be made available to the Holders upon request. The Company shall indemnify the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes their part arising out of or any guarantee of the Notes there is mention of, in any context:
(1) the payment of principal;
(2) redemption prices or purchase prices in connection with a redemption actions taken or purchase of Notes;
(3) interest; or
(4) any other amount payable on or with respect to omitted by any of the Notes or them in reliance on any guarantee of the Notes; such reference shall be deemed Officers' Certificate furnished to include payment of Additional Amounts as described under them pursuant to this Section 2.13 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein4.20.
Appears in 1 contract
Sources: Indenture (Preem Holdings Ab Publ)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all a) All payments made by a non-U.S. Payor by, or on behalf of, (i) the Guarantor under or with respect to the Notes or any guarantee of Guarantee and (ii) the Notes will Company with respect to the Notes, in each case, shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or within any jurisdiction in which the Guarantor is organized or resident, or doing or deemed to be doing business, for tax purposes or from or through which payments or deliveries by or on behalf of the Guarantor are made or deemed made, or by or within any political subdivision thereof or any authority therein or thereof having power to tax, dutyother than the United States or any state thereof (each, levyexcluding the United States or any state thereof, imposta “Relevant Taxing Jurisdiction”), assessment or other similar governmental charge (collectively, “Taxes”) unless such withholding or deduction is required by law or by regulation or governmental policy having the interpretation of administration force of law. If In the event that any deduction such taxes, duties, assessments or withholding for, or on account of, any Taxes governmental charges imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered Relevant Taxing Jurisdiction are required to be a resident for tax purposes, withheld or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required deducted from any payments or deliveries made by the Company or by the Guarantor or any Paying Agent with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest the Company or premium, if any, the non-U.S. Payor Guarantor will pay (together with such payments) to the Holder of each Note such additional amounts (the “Additional Amounts”) as may be are necessary in order to ensure that the net amounts amount received in respect of such payments by the Holder after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the amounts that would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of had no such withholding or deductiondeduction been required; provided, however, provided that no such Additional Amounts will be payable payable:
(1) for or on account of:
(1A) any Taxes tax, duty, assessment or other governmental charge that would not have been so imposed or levied but for for:
(i) the existence of any present or former connection between the relevant Holder or beneficial owner of such Note (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant HolderHolder or beneficial owner, if such the relevant Holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including Jurisdiction, other than merely holding or enforcing rights under such note or the receipt of payments thereunder, including, without limitation, such Holder or beneficial owner being or having been a citizen national, domiciliary or resident of such Relevant Taxing Jurisdiction or national of, treated as a resident thereof or carrying on being or having been physically present or engaged in a trade or business therein or maintaining having or having had a permanent establishment intherein;
(ii) the presentation of such Note (in cases in which presentation is required) more than 30 days after the Relevant Date (as defined below); or
(iii) the failure of the Holder, intermediary or being physically present inbeneficial owner to timely comply with a timely request from the Guarantor to provide certification, information, documents or other evidence concerning such Holder’s, intermediary’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction) but excluding, in each case, or to make any connection arising solely from the acquisition, ownership or holding declaration of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence residence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided or satisfy any other reporting requirement relating to such matters, if and to the extent that the Holder, intermediary or beneficial owner is able to comply with such declaration of nonresidence or other claim, filing or requirement request without undue hardship and due and timely compliance with such request is required by the applicable law, treatystatute, regulation or official administrative practice of the Relevant Taxing Jurisdiction in order to reduce or eliminate any withholding or deduction as a precondition to exemption fromwhich Additional Amounts would have otherwise been payable to such Holder, intermediary or reduction in the rate of deduction or withholding of, any such Taxes)beneficial owner;
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4B) any estate, inheritance, gift, use, sales, transfer, excise, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(5C) any Taxes tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(D) any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (“FATCA”), any current or future U.S. Treasury Regulations or rulings promulgated thereunder, any law, regulation, rule, practice 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, regulation, rule, practice, or other official guidance enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA;
(E) any tax, assessment or other governmental charge imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder Holder, intermediary or beneficial owner who would have been able to avoid such Tax tax, assessment or governmental charge by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;; or
(6F) any Taxes payable under Sections 1471 through 1474 combination of taxes referred to in the Code as of the date of the Offering Memorandum preceding clauses (or any amended or successor version that is substantively comparable and not materially more onerous to comply withA), any current or future regulations or official interpretations thereof(B), any agreements entered into pursuant thereto(C), (D) and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreementsE); or
(72) with respect to any combination payment on a Note to a Holder that is a fiduciary, partnership or person other than the sole beneficial owner of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders)payment, except to the extent that such payment would be required to be included in the Holder income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a partner or member of that partnership or a beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner who would not have been entitled to payment of such Additional Amounts by reason of had that beneficiary, settlor, partner, member or beneficial owner been the Holder thereof.
(b) If the Company or the Guarantor is required to make any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make deduction or cause to be made withholding from any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or payments with respect to any payment made on the Notes, at least 30 days prior to the date of such paymentCompany or the Guarantor, the non-U.S. Payor as applicable, will deliver to the Trustee an Officer’s Certificate stating official tax receipts evidencing 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 (unless such obligation to pay Additional Amounts arises less than 45 days prior remittance to the relevant payment date, in which case tax authorities of the non-U.S. Payor shall deliver amounts so withheld or deducted. Copies of such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee receipts shall be entitled made available to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this IndentureHolders, the Notes or any guarantee intermediaries and beneficial owners of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinnotes upon written request.
Appears in 1 contract
Sources: Indenture (LivaNova PLC)
Additional Amounts. After (a) All payments of principal of, premium, if any, and interest on the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments Notes made by a non-U.S. Payor on the Issuer or with respect the Guarantor pursuant to the Notes or any guarantee of the Notes will Guarantee, respectively, shall be made free and clear of and without withholding or deduction for, for or on account of, of any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectivelyincluding penalties, “Taxes”interest and other liabilities related thereto) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of Canada or of any jurisdiction (other than the United States province, territory or any political subdivision or governmental authority thereof or by any authority or agency therein or thereof having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) collectively, "Taxes" and (2each, a "Taxing Jurisdiction"), a “Relevant Taxing Jurisdiction”)unless the Issuer or the Guarantor, will at 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 the Guarantor is required to withhold or deduct any time be required amount for or on account of Taxes from any payments payment made under or with respect to the Notes or any guarantee of the NotesGuarantee, including payments of principal, redemption price, interest or premium, if anyrespectively, the non-U.S. Payor will pay (together with such payments) Issuer or the Guarantor, as the case may be, shall pay, or cause to be paid, such additional amounts (the “"Additional Amounts”") as may be necessary in order so that the net amounts amount received by each Holder (in respect of such payments by the Holder beneficial owner thereof) (including Additional Amounts) after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that amount such Holder would have received if such Taxes had not been received in respect of such payments on the Notes withheld or the guarantees of the Notes in the absence of such withholding or deductiondeducted; provided, however, that no such Additional Amounts will shall be payable for with respect to a payment made to a Holder or beneficial owner thereof or to a third party on account ofbehalf of a Holder or beneficial owner thereof (an "Excluded Holder") with respect to:
(1i) any Taxes that would Tax imposed on, or deducted or withheld from, payments in respect of the Notes to a Holder or beneficial owner (y) by reason of its being a Person with whom the Issuer, a partner of the Issuer or the Guarantor does not have been so imposed deal at arm's length for the purposes of the income tax laws of the Taxing Jurisdiction at the time of making such payment or levied but for (z) by reason of the existence of any present or former connection between the relevant such Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, partnermember, member shareholder or shareholder other equity owner of, or possessor of power over, the relevant Holdersuch Holder or beneficial owner, if such Holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company company, corporation or corporationother entity) and the Relevant Taxing Jurisdiction (including being a citizen including, without limitation, any Tax imposed on, or resident deducted or national withheld from, such Holder's or beneficial owner's net income) other than the mere holding, or receiving payments under, or enforcing any rights in respect of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4ii) any estate, inheritance, gift, sales, excise, transfer, stamp, excise or personal property Tax or any similar TaxesTax;
(5iii) any Taxes Tax imposed on, or deducted or withheld from, payments in connection with a Note presented for payment (where presentation is required for payment) by or on behalf respect of the Notes to a Holder or beneficial owner who would have been able as a result of the failure of such Holder or beneficial owner of Notes (y) to avoid duly and timely comply with any certification, identification, information, documentation, or similar reporting requirements concerning the nationality, residence, entitlement to treaty benefits, identity or connection with the relevant Taxing Jurisdiction of such Holder or beneficial owner or (z) to duly and timely make a declaration, claim or filing for exemption from or reduction in the rate of such Tax, if such compliance or the making of such declaration, claim or filing is required by statute, treaty, regulation or administrative pronouncement or practice, as a precondition to exemption from or reduction in the rate of such Tax by presenting and if the relevant Note toIssuer or the Guarantor has provided such Holder or beneficial owner or its nominee with at least 30 days written notice of any opportunity to so comply or make such declaration, claim or otherwise accepting payment from, another Paying Agentfiling;
(6iv) any Taxes payable under Sections 1471 through 1474 Tax imposed on, or deducted or withheld from, payments in respect of the Code as of the date of the Offering Memorandum (Notes to a Holder or any amended beneficial owner which is a fiduciary or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing partnership (including any legislation entity or other official guidance relating arrangement treated as a partnership by the relevant Taxing Jurisdiction) or not the sole beneficial owner of such payments to the extent that any beneficiary or settler with respect to such intergovernmental agreements); orfiduciary, any partner or member of such partnership or any beneficial owner of such payments would not have been entitled to such Additional Amounts with respect to such payments had such beneficiary, settler, partner, member or beneficial owner received directly its beneficial or distributive share of such payments;
(7v) any combination Tax imposed on, or deducted or withheld from, payments in respect of the above. Such Additional Amounts will also not be payable (x) Notes to a Holder or beneficial owner if the payment such payments could have been made without such imposition, deduction or withholding if the beneficiary of the payment such Tax had such Notes been presented the Note for payment (where presentation is required) within 30 days after the relevant payment was date on which such payments or such Notes became due and first made available for payable or the date on which payment to the Holder thereof is duly provided for, whichever is later (provided that notice of such payment is given to the Holders), except to the extent that the such Holder or beneficial owner or other such Person would have been entitled to such Additional Amounts had such Notes been presented on presenting the Note for payment on any date during last day of such 30-day period or period); or
(yvi) where, had the beneficial owner any combination of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will items (i) through (v).
(b) The Issuer or the Guarantor, as the case may be, shall also (a) make or cause to be made any required such withholding or deduction and (iib) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. .
(c) The non-U.S. Payor will use reasonable efforts Issuer or the Guarantor, as the case may be, shall furnish the Holders, within 30 days after the date the payment of any Taxes is due pursuant to obtain applicable law, certified copies of tax receipts evidencing such payment by the Issuer or the Guarantor or, if certified copies of tax receipts are not reasonably available to the Issuer or the Guarantor, such other documentation evidencing such payment by the Issuer or the Guarantor that is reasonably satisfactory to the Trustee. The Issuer and the Guarantor shall, jointly and severally, indemnify each Holder (other than an Excluded Holder) for the amount of (x) any Taxes so deducted levied or withheld from each relevant taxing authority imposed and paid by such Holder as a result of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts payments made under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention ofGuarantee, 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
(4y) any other amount payable on cost or expense arising therefrom or with respect thereto, and (z) any Taxes so levied or imposed with respect to any of reimbursement under the Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.clauses
Appears in 1 contract
Sources: Indenture
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with All payments in respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or with respect to the Notes or any guarantee of the Notes (including payments by the Guarantor under the Guarantee) will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levyassessments or governmental charges of whatever nature, impostimposed or levied by Luxembourg, assessment the United States or other similar governmental charge (collectivelyany taxing authority thereof or therein, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any such withholding or deduction is required by law, the Issuer or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1as the case may be) any jurisdiction (other than the Guarantor will pay to a Noteholder who is not a United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
person (2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such paymentsas defined below) such additional amounts (the “Additional Amounts”) as may be are necessary in order that the net amounts received in respect payment of the principal of, and premium, if any, and interest on, the Notes to such payments by the Holder Noteholder, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that would have been received amount provided in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deductionto be then due and payable; provided, however, that no such the foregoing obligation to pay Additional Amounts will be payable for or on account ofshall not apply:
(1) to any Taxes tax, assessment or other governmental charge that would not have been so imposed or levied but for the existence of any present holder, or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, holder if such Holder the holder is an estate, nominee, trust, partnership, limited liability company partnership or corporation, or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(a) and being or having been engaged in a trade or business in Luxembourg or (as the Relevant Taxing Jurisdiction case may be) the United States or having or having had a permanent establishment in Luxembourg or (as the case may be) the United States or having or having had a qualified business unit which has the United States dollar as its functional currency;
(b) having a current or former connection with Luxembourg or (as the case may be) the United States (other than a connection arising solely as a result of the ownership of the Notes, the receipt of any payment or the enforcement of any rights thereunder) or being considered as having such relationship, including being or having been a citizen or resident of Luxembourg or national of(as the case may be) the United States;
(c) being or having been a personal holding company, a passive foreign investment company or carrying on a business controlled foreign corporation with respect to the United States or maintaining a permanent establishment inforeign personal holding company that has accumulated earnings to avoid U.S. federal income tax;
(d) being or having been a “10-percent shareholder” of the Guarantor, or being physically present inas defined in section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the Relevant Taxing Jurisdiction“Code”) but excluding, in each case, any connection arising solely from and the acquisition, ownership or holding of such Notes Treasury regulations thereunder or any guarantee successor provision; or
(e) being a bank described in section 881(c)(3)(A) of the Notes or the enforcement or receipt of any payment in respect thereofCode;
(2) to any Taxes holder that is not the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficiary or settlor with respect to the fiduciary, a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of any Additional Amounts had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(3) to any tax, assessment or other governmental charge that would not have been so imposed or levied if but for the Holder failure of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably holder or any other person to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identificationidentification or information reporting requirements concerning the nationality, information residence, identity or reporting requirement for exemption fromconnection with Luxembourg or (as the case may be) the United States of the holder or beneficial owner of the Notes, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement if compliance is required by statute, by regulation of Luxembourg or (as the case may be) United States or any respective taxing authority therein or by an applicable law, treaty, regulation income tax treaty to which Luxembourg or official administrative practice of (as the Relevant Taxing Jurisdiction case may be) the United States is a party as a precondition to exemption fromfrom such tax, assessment or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notesother governmental charge;
(4) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Issuer, the Guarantor or a Paying Agent (as the case may be) from the payment;
(5) to any tax, assessment or other governmental charge that would not have been imposed but for a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
(6) to any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar Taxestax, assessment or other governmental charge;
(57) to any Taxes withholding or deduction that is imposed in connection with on a Note presented for payment (where presentation to an individual and that is required for payment) by to be made pursuant to any law implementing or on behalf of a Holder complying with, or beneficial owner who would have been able introduced in order to avoid such Tax by presenting the relevant Note conform to, any European Union Directive on the taxation of savings;
(8) to any tax, assessment or otherwise accepting other governmental charge required to be withheld by any Paying Agent from any payment fromof principal of, another or premium, if any, or interest on, any Note, if such payment can be made without such withholding by at least one other Paying Agent;
(69) to any Taxes tax, assessment or other governmental charge that would not have been imposed but for the presentation by the holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable under or the date on which payment thereof is duly provided for, whichever occurs later;
(10) to any withholding or deduction that is imposed on a payment pursuant to Sections 1471 through 1474 of the Code as of and related Treasury regulations and pronouncements (the date of the Offering Memorandum (Foreign Account Tax Compliance Act, or “FATCA”) or any amended or successor version that is substantively comparable provisions and not materially more onerous to comply with), any current or future regulations or official law, agreement or interpretations thereof, any agreements entered into pursuant thereof implementing an intergovernmental approach thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(711) in the case of any combination of the above. Such Additional Amounts will also not be payable items (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders1), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where2), had the beneficial owner of the Note been the Holder of the Note(3), such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to 4), (5), (6), (7), (8), (9) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date10). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments Notes are necessary. Wherever subject in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 all cases to any of the Notes tax, fiscal or any guarantee of other law or regulation or administrative or judicial interpretation applicable to the Notes; such reference shall be deemed to include payment of Additional Amounts . Except as described specifically provided under this Section 2.13 Condition 8, neither the Issuer nor the Guarantor will be required to the extent thatmake any payment for any tax, in such contextduty, Additional Amounts are, were assessment or would be payable in respect thereof. The non-U.S. Payors will pay governmental charge of whatever nature imposed by any present government or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority of or agency thereof in any government or thereinpolitical subdivision.
Appears in 1 contract
Sources: Fiscal Agency Agreement (Simon Property Group L P /De/)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor the Company on or with respect to the Notes ------------------ (whether or any guarantee not in the form of the Notes Definitive Notes) will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levyassessments, impost, assessment or other similar governmental charge charges of whatever nature (collectively, “"Taxes”") imposed or levied by or on behalf of Germany or any jurisdiction in which the Company or any Surviving Entity is organized or is otherwise resident for tax purposes or any political subdivision thereof or any authority having power to tax therein or any jurisdiction from or through which payment is made (each a "Relevant Taxing Jurisdiction"), unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will shall at any time be required from on any payments made by the Company with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor Company will pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts)deduction, will not be less than equal the respective amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, except that no such Additional Amounts will be payable for or on account ofwith respect to:
(1a) any payments on a Note held by or on behalf of a Holder or beneficial owner who is liable for such Taxes that would not have been so imposed in respect of such Note by reason of the Holder or levied but for the existence of any present or former beneficial owner having some connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and with the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than by the acquisition, ownership or mere holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof;
(2b) any Taxes that would not have been so are imposed or levied if withheld as a result of a change in law after the Issue Date where such withholding or imposition is by reason of the failure of the Holder or beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) any request by the Company to provide information concerning the nationality, residence or identity of such Holder or beneficial owner or to make a any declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or reporting requirement for exemption fromrequirement, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from all or reduction in the rate part of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5c) except in the case of the winding up of the Company, any Taxes imposed in connection with a Note presented for payment (where presentation is required for paymentrequired) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting in the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements)Relevant Taxing Jurisdiction; or
(7d) any combination of Note presented for payment (where presentation is required) more than 30 days after the aboverelevant payment is first made available for payment to the Holder. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner he would not have been entitled to payment of Additional Amounts by reason of any of clauses (1a) to (7d) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Cybernet Internet Services International Inc)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor the Company on or with respect to the Notes ------------------ (whether or any guarantee not in the form of the Notes Definitive Notes) will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levyassessments or governmental charges of whatever nature (collectively "Taxes") imposed or levied by or on behalf of Germany or any jurisdiction in which the Company or any Surviving Entity is organized or is otherwise resident for tax purposes or any political subdivision thereof or any authority having power to tax therein or any jurisdiction from or through which payment is made (each a "Relevant Taxing Jurisdiction"), impost, assessment or other similar governmental charge (collectively, “Taxes”) unless such the withholding or deduction of such Taxes is then required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
(1) of any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will shall at any time be required from on any payments made by the Company with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor Company will pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts)deduction, will not be less than equal the respective amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, except that no such Additional Amounts will be payable for or on account ofwith respect to:
(1a) any payments on a Note held by or on behalf of a Holder or beneficial owner who is liable for such Taxes that would not have been so imposed in respect of such Note by reason of the Holder or levied but for the existence of any present or former beneficial owner having some connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and with the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than by the acquisition, ownership or mere holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof;
(2b) any Taxes that would not have been so are imposed or levied if withheld as a result of a change in law after the Issue Date where such withholding or imposition is by reason of the failure of the Holder or beneficial owner of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) any request by the Company to provide information concerning the nationality, residence or identity of such Holder or beneficial owner or to make a any declaration of nonresidence or any other similar claim or filing or satisfy any certification, identification, information or reporting requirement for exemption fromrequirement, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required or imposed by the applicable lawa statute, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, from all or reduction in the rate part of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5c) except in the case of the winding up of the Company, any Taxes imposed in connection with a Note presented for payment (where presentation is required for paymentrequired) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting in the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements)Relevant Taxing Jurisdiction; or
(7d) any combination of Note presented for payment (where presentation is required) more than 30 days after the aboverelevant payment is first made available for payment to the Holder. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner he would not have been entitled to payment of Additional Amounts by reason of any of clauses (1a) to (7d) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Cybernet Internet Services International Inc)
Additional Amounts. After (a) All payments made by the occurrence Company, any Guarantor or a successor of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor the foregoing (each such Obligor or successoreach, a “non-U.S. Payor”)) under, all payments made by a non-U.S. Payor on or with respect to to, the Notes or any guarantee of the Notes relevant Note Guarantee will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future tax, duty, levy, impost, assessment or other similar governmental charge (including penalties and interest related thereto) (collectively, “Taxes”) unless such withholding imposed, levied, collected or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied assessed by or on behalf of:
of (1) any jurisdiction (other than the United States Bermuda or any political subdivision or governmental authority thereof or therein having power to tax, (2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes relevant Note Guarantee is made by or on behalf of a non-U.S. Payorthe Company or any Guarantor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
, or (23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. the relevant Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposesresident, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1), (2) and (23), a “Relevant Taxing Jurisdiction”), unless the withholding or deduction of such Taxes is then required by law or the interpretation or administration thereof.
(b) If any deduction or withholding for, or on account of, any Taxes of any Relevant Taxing Jurisdiction will at any time be required from any payments made with respect to the Notes or any guarantee of the Notesrelevant Note Guarantee, including payments of principal, premium, if any, redemption price, interest or premium, if anySpecial Interest, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder each Holder, after such deduction or withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding deduction or deductionwithholding; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any Taxes that would not have been so imposed imposed, levied, collected or levied assessed but for the existence of any present or former connection between the relevant Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, partnermember, member partner or shareholder of, or possessor of power over, the relevant HolderHolder or beneficial owner, if such the relevant Holder or beneficial owner is an estate, nominee, trust, partnership, limited liability company company, partnership or corporation, if applicable) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, other than the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes Note or any guarantee enforcement of the Notes rights thereunder or the enforcement or receipt of any payment payments in respect thereof);
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(3) any Taxes payable otherwise than by deduction or withholding from payments on or in respect of any Note or Note Guarantee;
(4) any Taxes which would not have been imposed, payable or due if the presentation (where presentation is required) of the Notes for payment occurred within 30 days after the date such payment was due and payable or was provided for, whichever is later, except for Additional Amounts with respect to Taxes that would have been imposed had the Holder presented the Note for payment within such 30-day period;
(5) any Taxes that are imposed in connection with a Note presented for payment (where presentation is required for payment) or withheld by or on behalf reason of a the failure of the Holder or beneficial owner who would have been able of a Note to avoid comply, upon the Company’s reasonable request, with certification, identification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction of the Holder or such Tax beneficial owner or to make, upon the Company’s reasonable request, any other claim or filing for exemption to which it is entitled if such compliance, making a claim or filing for exemption is required or imposed by presenting a statute, treaty or regulation or administrative practice of the relevant Note to, Relevant Taxing Jurisdiction as a precondition to exemption from all or otherwise accepting payment from, another Paying Agentpart of such Taxes;
(6) any Taxes payable under Sections 1471 through 1474 withholding or deduction imposed on a payment to an individual and required to be made pursuant to European Union Directive on the taxation of savings income which was adopted by the ECOFIN Council (the Council of EU Finance and Economic Ministers) on June 3, 2003, or any law implementing or complying with, or introduced to conform to, such directive, or pursuant to related measures entered into on a reciprocal basis between member states of the Code as European Union and certain non-European Union countries and dependent or associated territories;
(7) any Taxes which could have been avoided by the presentation (where presentation is required) of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous relevant Note to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements)another paying agent in a Relevant Taxing Jurisdiction; or
(7) 8) any combination of the above. Such In addition, such Additional Amounts will also not be payable with respect to any payment of principal of (x) or premium, if any, on), interest or Special Interest on such Note or Note Guarantee to any Holder who is a fiduciary or partnership or any person other than the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice sole beneficial owner of such payment is given to the Holders)payment, except to the extent that the Holder a beneficiary or beneficial owner settlor with respect to such fiduciary, a member of such a partnership or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner payment would not have been entitled to payment of the Additional Amounts by reason had such beneficiary, settlor, member or beneficial owner been the actual Holder of any of clauses such Note.
(c) The Payor will (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii2) remit or cause to be remitted the full amount deducted or withheld to the relevant applicable taxing authority of in the Relevant Taxing Jurisdiction in accordance with applicable law. .
(d) The non-U.S. Payor will use all commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing such Taxes and upon request by the Trustee at the direction of a Holder will provide such certified copies to the Trustee and Trustee.
(e) If the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to any payment made on the Notes, at least 30 days prior to the date of such paymentNotes or a Note Guarantee, the non-U.S. 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 Trustee, at least five days prior to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date (unless such the obligation to pay Additional Amounts arises less than 45 days after the fifth day prior to the relevant payment date, in which case the non-U.S. Payor shall deliver notify the Trustee and paying agent promptly after becoming aware of such obligation), an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts estimated to be so payable and will set forth such other information reasonably necessary to enable the Trustee and Paying Agent to pay such Additional Amounts to Holders of Notes on the relevant payment date. Each such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such relied upon by the Trustee and Paying Agent without further inquiry until receipt of a further Officer’s Certificate as conclusive proof that addressing such payments are necessary. Wherever matters.
(f) The Payor will pay any stamp, issue, registration, documentary, value added, excise, property or other similar taxes and duties (including interest and penalties) payable in this Indenturerespect of the creation, issue, offering or execution of the Notes or a Note Guarantee, or any guarantee documentation with respect thereto, excluding any such taxes, charges or similar levies or duties imposed by a jurisdiction outside the jurisdiction in which the Payor is organized or any political subdivision or taxing authority or agency thereof or therein other than those resulting from, or required to be paid in connection with, the enforcement of the Notes or a Note Guarantee following the occurrence of any Default or Event of Default.
(g) The provisions of this Section 4.29 will survive any termination, defeasance or discharge of this Indenture and will apply with appropriate modifications to any jurisdiction in which any successor Person to a Payor is organized or any political subdivision or taxing authority or agency thereof or therein.
(h) Whenever in this Indenture or in this Section 4.29 there is mention ofmentioned, in any context:
, (1) the payment of principal;
, premium, if any, or interest, (2) redemption prices or purchase prices in connection with a the redemption or purchase of Notes;
, or (3) interest; or
(4) any other amount payable on under or with respect to any of the Notes Note or any guarantee of the Notes; a Note Guarantee, such reference mention shall be deemed to include mention of the payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Indenture (Global Crossing LTD)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. the Payor on or with respect to the Notes or any guarantee of the Notes Guarantor with respect to its Guarantee will be made without withholding or deduction for, or on account of, any present or future taxtaxes, dutyduties, levy, impost, assessment assessments or other similar governmental charge charges of whatever nature (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of (1) any jurisdiction (other than in which the United States Payor or any Guarantor or successor Guarantor is organized or otherwise considered resident for tax purposes or any political subdivision or governmental authority of any thereof or therein having power to tax, or (2) any jurisdiction from or through which payment on the Notes or any guarantee of the Notes Guarantees is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposesmade, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses clause (1) and (2), a “Relevant Taxing Jurisdiction”), will 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 of any Relevant Taxing Jurisdiction shall at any time be required from any payments made with respect to the Notes or any guarantee of the NotesGuarantees, including including, without limitation, payments of principal, redemption priceRedemption Price, interest or premium, if any, the non-U.S. Payor or the relevant Guarantor, as applicable, will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by the Holder Holders of the Notes or the Trustee, as the case may be, after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the amounts that which would have been received in respect of such payments on the Notes or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account ofwith respect to:
(1) any Taxes that would not have been so imposed or levied but by or on behalf of a Relevant Taxing Jurisdiction upon any payments to a Holder or Beneficial Owner who is liable for such Taxes in respect of the existence Notes by reason of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partnermember, member partner or shareholder of, or possessor of power over, over the relevant Holder, if such the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the or Beneficial Owner having any present or former connection with such Relevant Taxing Jurisdiction (including including, without limitation, being resident for tax purposes, being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the such Relevant Taxing Jurisdiction) but excluding, in each case, any other than a connection arising solely from the acquisition, ownership or holding of such Notes Note or any guarantee enforcement of rights thereunder or the receipt of payments in respect of the Notes or the enforcement or receipt of with respect to any payment in respect thereofGuarantee;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note or Beneficial Owner had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence non-residence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that (x) such declaration of nonresidence non-residence or other claim, claim or filing or requirement for exemption is required by the applicable law, treaty, regulation or official administrative practice law of the applicable Relevant Taxing Jurisdiction as a precondition to exemption fromfrom the requirement to deduct or withhold such Taxes and (y) at least 30 days prior to the first payment date with respect to which such declaration of non-residence or other claim or filing for exemption is required under the applicable law of the applicable Relevant Taxing Jurisdiction, the relevant Holder or reduction Beneficial Owner at that time has been notified in writing by the rate Payor or any other person through whom payment may be made that a declaration of deduction non-residence or withholding of, any such Taxesother claim or filing for exemption is required to be made);
(3) except in the case of the winding up of the Payor, any Note presented for payment (where presentation is required) in the Relevant Taxing Jurisdiction (unless by reason of the Payor’s actions, presentment could not have been made elsewhere and except to the extent that the Holder would have been entitled to Additional Amounts had the Notes been presented elsewhere);
(4) any Note presented for payment (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 during such 30 day period);
(5) any Taxes that are payable otherwise than by withholding from a payment of the principal of, premium, if any, or interest, if any, on the Notes or with respect to the Notes or any guarantee of the NotesGuarantee;
(46) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxestax, assessment or other governmental charge;
(57) any Taxes a Tax imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner Beneficial Owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting accept payment from, another Paying Agentpaying agent in a member state of the European Union;
(6) 8) any Taxes payable under imposed, deducted or withheld pursuant to Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code Code, in each case, as of the date of the Offering Memorandum Issue Date (or and any amended or successor version that is substantively comparable and not materially more onerous to comply withcomparable), ; any current or future regulations or agreements thereunder, official interpretations thereofthereof or any law implementing an intergovernmental agreement relating thereto; or any treaty, any agreements entered into pursuant theretolaw, and any intergovernmental agreements implementing the foregoing (including any legislation regulation or other official guidance relating enacted in any other jurisdiction, facilitating implementation thereof;
(9) all United States backup withholding taxes;
(10) any Tax deducted, withheld or imposed in connection with the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021) as amended from time to such intergovernmental agreements)time; or
(711) any combination of the clauses (1) through (10) above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner Beneficial Owner of the Note been the Holder of the Note, such beneficial owner it would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (711) inclusive above. The non-U.S. Payors Upon request, the Issuer will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted provide the full amount deducted or withheld Trustee with documentation satisfactory to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor will use reasonable efforts to obtain certified copies of tax receipts Trustee evidencing the payment of any Taxes so deducted or withheld from each relevant taxing authority Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and documentation will provide such certified copies be made available to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee of the Notes there is mention of, 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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinupon request.
Appears in 1 contract
Sources: Indenture (Smurfit WestRock PLC)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with (a) All payments in respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all payments made by a non-U.S. Payor on or with respect to the Notes or any guarantee of the Notes Securities will be made free and clear of and without withholding or deduction for, for or on account ofof any Applicable Tax Amount, unless such Applicable Tax Amount is required by law or the official interpretation or administration thereof. In the event that the Company shall be obligated to pay Additional Amounts in respect of such Applicable Tax Amount, no such obligation to pay Additional Amounts shall apply in respect of any Security:
(i) to the extent that such taxes, duties or governmental charges are imposed or levied by reason of such Holder (or the beneficial owner) having some connection with the Taxing Jurisdiction other than the mere holding (or beneficial ownership) of such Security, or receiving Principal or interest payments on the Securities (including, but not limited to, citizenship, nationality, residence, domicile, or existence of a business, a permanent establishment, a dependent agent, a place of business or a place of management present or future taxdeemed present within the Taxing Jurisdiction);
(ii) to the extent that such taxes are not withholding taxes;
(iii) in respect of which the Holder (or beneficial owner) fails to comply with any certification, duty, levy, impost, assessment identification or other reporting requirement concerning its nationality, residence, identity or connection with the Taxing Jurisdiction if (1) compliance is required by applicable law, regulation, administrative practice or treaty as a precondition to exemption from all or a part of the taxes, (2) the Holder (or beneficial owner) is able to comply with those requirements without undue hardship and (3) the Company has given all Holders (or beneficial owners) at least 30 days prior notice that they will be required to comply with such requirements;
(iv) in respect of which the Holder fails to surrender (where surrender is required) its Security for payment within 30 days after the Company has made available such payment provided that the Company will pay Additional Amounts to which a Holder would have been entitled had the Security been surrendered on the last day of such 30-day period;
(v) to the extent that such taxes, duties or governmental charges are imposed by reason of any estate, inheritance, gift, personal property, value added, use or sales tax or any similar taxes, assessments or other governmental charge charges;
(collectively, “Taxes”vi) unless where such withholding or deduction is imposed on a payment to an individual and is required by to be made pursuant to European Council Directive 2003/48/EC or any other Directive on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 or any law implementing or by the interpretation of administration of law. If any deduction or withholding forcomplying with, or on account ofintroduced in order to conform to, any Taxes imposed or levied by or on behalf of:such Directive;
(1vii) any jurisdiction to the extent that withholding or deduction is imposed pursuant to or in connection with FATCA, as set forth in Section 2.15 of this Indenture;
(other than the United States or any political subdivision or governmental authority thereof or therein having power to taxviii) from or through which payment on the Notes or any guarantee withholding tax in excess of a rate of 15% imposed as a result of the Notes is made application of Normative Ruling No. 1,037 and Law No. 11,727;
(ix) taxes imposed pursuant to Article 26 of Law No. 10,833;
(x) by or on behalf of a non-U.S. PayorHolder who would have been able to avoid such withholding or deduction by presenting the relevant Security to another Paying Agent in a Member State of the European Union; or
(xi) in the case of any combination of the items listed above. Nor will Additional Amounts be paid with respect to any payment on a Security to a Holder who is a fiduciary, a partnership, a limited liability company or other than the sole beneficial owner of that payment to the extent that payment would be required by the laws of a Taxing Jurisdiction (or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2thereof) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident included in the income, for tax purposes, of a beneficiary or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments made settlor with respect to the Notes fiduciary, a member of that partnership, an interestholder in a limited liability company or a beneficial owner who would not have been entitled to the Additional Amounts had that beneficiary, settlor, member or beneficial owner been the Holder. Any reference to payments on the Securities shall be deemed also to include the payment of any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”. However, no Holder (or beneficial owner) as may of a Security shall be entitled to receive any Additional Amounts greater than the amounts necessary in order that the net amounts received in respect of receivable by such payments by the Holder after such withholding or deduction (including any such deduction or withholding from such Additional Amounts), will not be less than equal the respective amounts that which would have been received in respect of receivable by such payments on the Notes or the guarantees of the Notes Holder in the absence of such withholding or deduction; provided, however, that no such Additional Amounts will be payable for or on account of:subject to the exceptions above.
(1b) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes or any guarantee of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors Company will (i) make or cause to be made any required such withholding or deduction on its payments of Principal and interest on the Securities as required by the relevant Taxing Jurisdiction and (ii) remit or cause to be remitted the full amount withheld or deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor Company will use reasonable efforts furnish to obtain the Trustee, within 30 days after the date of payment of any such taxes due pursuant to applicable law, certified copies of tax receipts or, if such receipts are not obtainable, documentation evidencing such payment. Upon request, copies of such receipts or other documentation, as the case may be, will be made available to the Securityholders.
(c) At least 10 Business Days prior to the first interest payment date for the Securities, and, if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, at least 10 Business Days prior to each interest payment date for the Securities, the Company shall furnish to the Trustee an Officers’ Certificate instructing the Trustee as to any circumstances in which payments of Principal of or interest on the Securities (including Additional Amounts) due on such date shall be subject to deduction or withholding for or on account of any taxes and the rate of any such deduction or withholding and certifying that the Company shall pay all amounts required to be deducted or withheld to the appropriate governmental authority. Upon request, copies of such Officers’ Certificate will be made available to the Securityholders. The Company covenants to indemnify the Trustee and any other Paying Agents for, and to hold each harmless against, any duly documented loss, liability or expense reasonably incurred without gross negligence, bad faith or willful misconduct on their part, arising out of or in connection with actions taken or not taken by any of them in reliance on any certificate furnished to them pursuant to this paragraph or the failure to furnish any such certificate. The obligations of the Company under the preceding sentence shall survive the resignation or removal of the Trustee, the Registrar or any Paying Agent, payment of the Securities and the termination of this Indenture. Any certificate required by this Section to be provided to the Trustee and any other Paying Agent shall be deemed to be duly provided if sent by facsimile to the Trustee and such other Paying Agent. Upon request, the Company shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of taxes in respect of which the Company has paid any Taxes so deducted or withheld from each relevant taxing authority Additional Amounts. Copies of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies documentation shall be made available by the Trustee to the Trustee and Securityholders or the Holders. Ifother Paying Agents, notwithstanding the efforts as applicable, upon request therefor.
(d) The foregoing obligations shall survive any termination or resignation of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee or discharge of the Securities and this Indenture.
(e) If the Holders with other reasonable evidence. If Company shall at any non-U.S. Payor will time be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 required to pay Additional Amounts to Holders on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior Securityholders pursuant to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in terms of this Indenture, the Notes Company will use its reasonable efforts to obtain an exemption from the payment of (or otherwise avoid the obligation to pay) the tax which has resulted in the requirement that it pay such Additional Amounts.
(f) The Company agrees that it will ensure that it maintains a Paying Agent in an EU Member State that will not be obligated to withhold or deduct tax pursuant to European Council Directive 2003/48/EC or any guarantee other Directive implementing the conclusions of the Notes ECOFIN Council Meeting of 26-27 November 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive.
(g) Whenever in this Indenture there is mention ofmentioned, in any context:
(1) , the payment of principal;
(2) redemption prices the Principal of or purchase prices in connection with a redemption interest or purchase of Notes;
(3) interest; or
(4) any other amount payable on amounts on, or with in respect to of, any Security of the Notes or any guarantee of the Notes; series, such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under this Section 2.13 provided for herein or by the terms of such series established hereby or pursuant hereto to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The non-U.S. Payors will pay any present or future stampthereof pursuant to such terms, court or documentary Taxes, or any other excise, property or similar Taxes that arise and express mention of the payment of Additional Amounts (if applicable) in any Relevant Taxing Jurisdiction from provision hereof shall not be construed as excluding the execution, delivery, issuance, initial resale, registration or enforcement payment of any Notes, this Indenture or any other document or instrument Additional Amounts in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor those provisions hereof where such express mention is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinnot made.
Appears in 1 contract
Sources: Subordinated Indenture (Banco Santander (Brasil) S.A.)
Additional Amounts. After For purposes of the occurrence Offered Securities and this Twentieth Supplemental Indenture, the first paragraph of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor Section 14.02, Sections 14.02(a)(iii) and (each such Obligor or successor, a “non-U.S. Payor”iv), all Section 14.02(f) and Section 14.02(h) through (j) of the Base Indenture are hereby deleted and replaced with the following: All payments made by a non-U.S. Payor on the Company, Parent or New Irish TE under or with respect to the Notes or any guarantee of Securities and the Notes Guarantees will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxtaxes, dutyduties, levylevies, impostimposts, assessment assessments or other similar governmental charge (collectively, “Taxes”) unless such withholding or deduction is required by law or by the interpretation charges of administration of law. If any deduction or withholding for, or on account of, any Taxes whatever nature imposed or levied by or on behalf of:
of any Taxing Jurisdiction (1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing JurisdictionTaxes”), will at unless the Company, Parent or New Irish TE, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that the Company, Parent or New Irish TE (or any time be successor thereof) is required to so withhold or deduct any amount for or on account of any Taxes from any payments payment made under or with respect to the Notes Securities or the Guarantees, as the case may be, the Company, Parent or New Irish TE (or any guarantee of successor thereof), as the Notescase may be, including payments of principal, redemption price, interest or premium, if any, the non-U.S. Payor will pay (together with such payments) such additional amounts (the “Additional Amounts”) as may be necessary in order so that the net amounts amount received in respect by each holder of such payments by the Holder Securities (including Additional Amounts) after such withholding or deduction (including any will equal the amount that such deduction or withholding from such Additional Amounts), will not be less than the amounts that Holder would have received if such Taxes had not been received in respect of such payments on the Notes required to be withheld or the guarantees of the Notes in the absence of such withholding or deduction; provided, however, deducted; provided that no such Additional Amounts will be payable with respect to a payment to a holder of Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than the holder’s mere ownership of the Securities or for or on account of:
(1a) (iii) with respect to any withholding Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable lawUnited States, treatyis or was, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes United States, a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or any guarantee of the Notesa corporation that has accumulated earnings to avoid United States federal income tax;
(4a) any estate, inheritance, gift, sales, excise, transfer, personal property (iv) owns or similar Taxes;
(5) any Taxes imposed in connection with a Note presented for payment (where presentation is required for payment) by owned 10% or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 more of the Code as issued share capital or total combined voting power of all classes of stock of the date of the Offering Memorandum (Company, Parent or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements)New Irish TE; or
(7a) any combination of the above. Such Additional Amounts will also not be payable (xv) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts by reason of any of clauses (1) to (7) inclusive above. The non-U.S. Payors will (i) make or cause to be made any required withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction in accordance with applicable law. The non-U.S. Payor 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 of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the NotesTaxes that are imposed or withheld by Ireland, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever in this Indenture, the Notes or any guarantee profits available for distribution of the Notes there is mention ofCompany, in any context:
(1) the payment of principalParent or New Irish TE;
(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 Notes or any guarantee of the Notes; such reference shall be deemed to include payment of Additional Amounts 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. The non-U.S. Payors will pay any present or future stamp, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (other than a transfer of the Notes). The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Sources: Twentieth Supplemental Indenture (TE Connectivity Ltd.)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor or on behalf of the Company or any Guarantor under or with respect to the Notes Securities or any guarantee of the Notes Guarantee will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxtaxes, dutyduties, levylevies, impostimposts, assessment assessments or other similar governmental charge charges of whatever nature (including any penalties, interest and other liabilities related thereto) imposed, assessed or levied by or on behalf of any Taxing Authority (collectively, “"Taxes”) "), unless such withholding the Company or deduction any Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation of or administration of lawthereof. If the Company or any deduction Guarantor is so required to withhold or withholding for, deduct any amount for or on account of, of any Taxes imposed or levied by or on behalf of:
(1) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having power to tax) from or through which payment on the Notes or any guarantee of the Notes is made by or on behalf of a non-U.S. Payor, or any political subdivision or governmental authority thereof or therein having the power to tax; or
(2) any jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes is organized or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at any time be required from any payments payment made under or with respect to the Notes Securities or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if anyGuarantee, the non-U.S. Payor Company or such Guarantor, as the case may be, will pay (together with such payments) such additional amounts (the “"Additional Amounts”") as may be necessary in order so that the net amounts amount (including Additional Amounts) received in respect by each Holder and beneficial owner of such payments by the Holder Securities after such withholding or deduction (including any such withholding or deduction or withholding from such in respect of Additional Amounts), ) will not be less than the amounts that amount such Holder or beneficial owner would have received if such Taxes had not been received in respect of such payments on the Notes withheld or the guarantees of the Notes in the absence of such withholding or deductiondeducted; provided, however, PROVIDED that no such Additional Amounts will be payable for or on account of:
(1) any Taxes that would not have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from the acquisition, ownership or holding of such Notes or any guarantee of the Notes or the enforcement or receipt of any payment in respect thereof;
(2) any Taxes that would not have been so imposed or levied if the Holder of the Note had complied with a reasonable request in writing of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence or any other claim or filing or satisfy any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required by the applicable law, treaty, regulation or official administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of deduction or withholding of, any such Taxes);
(3) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes a payment made to a Holder or any guarantee beneficial owner of the Notes;
(4) any estate, inheritance, gift, sales, excise, transfer, personal property Securities or similar Taxes;
(5) any Taxes imposed in connection with to a Note presented for payment (where presentation is required for payment) by or third party on behalf of a Holder or beneficial owner who would have been able of the Securities if and to avoid the extent any of the following exceptions apply (if and to any such extent, an "Excluded Holder"):
(a) in the case of Canadian withholding Taxes, such Taxes were so imposed, assessed or levied by reason of the Company's not dealing at arm's-length (within the meaning of the Income Tax Act (Canada)) with such Holder or beneficial owner at the time of making such payment,
(b) such Taxes were so imposed, assessed or levied on such payment to such Holder or beneficial owner by presenting reason of its being connected with the relevant Note toTaxing Jurisdiction otherwise than by reason of such Holder's or beneficial owner's activity in connection with purchasing the Securities, mere ownership or otherwise accepting payment fromdisposition of the Securities, another Paying Agent;receipt of payments under the Securities or enforcement or exercise of its rights under the Securities, the Guarantees or this Indenture, 125
(6c) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding of such Taxes if the beneficiary of the payment relevant Security had been presented the Note for payment (where presentation is required) within 30 days after the relevant date on which such payment was or such Security became due and first made available for payable or the date on which payment to the Holder thereof is duly provided for, whichever is later (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts had the Security been presented on presenting the Note for payment on any date during last day of such 30-day period period),
(d) the Holder or (y) wherebeneficial owner is a fiduciary, had a partnership or not the sole beneficial owner of a Security, if and to the Note been the Holder of the Noteextent that any beneficiary or settler with respect to such fiduciary, any partner in such partnership or a beneficial owner of such Security (as the case may be) would not have been entitled to payment of receive Additional Amounts with respect to the payment in question if such beneficiary, settler, partner or beneficial owner had been the sole beneficial owner of such Security (but only if there is no material cost or expense associated with transferring such Security to such beneficiary, settler, partner or beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, settler, partner or beneficial owner),
(e) such Holder or beneficial owner failed to duly and timely comply with a written request of the Company addressed or otherwise provided to the Holder (and made at a time which would enable the Holder and/or beneficial owner acting reasonably to duly and timely comply with that request) to provide information, documents or other evidence concerning such Holder's or beneficial owner's nationality, residence, entitlement to treaty benefits, identity or connection with the relevant Taxing Authority or any political subdivision or authority thereof, but only (x) if and to the extent that such Holder and/or beneficial owner was legally able to comply with such request and (y) if and to the extent due and timely compliance with such request is required by reason the law, regulation, administrative practice or any treaty obligation of the relevant Taxing Authority or any political subdivision or authority thereof as a precondition to reduction or elimination of any Taxes as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner of Securities but for this clause (e), or
(f) any combination of the foregoing clauses (1) to (7) inclusive aboveof this proviso. The non-U.S. Payors Company or such Guarantor will also (ia) make or cause to be made any required such withholding or deduction and (iib) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction Authority in accordance with applicable law. The non-U.S. Payor Company or such Guarantor will use reasonable efforts furnish to obtain 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 payment Company or such Guarantor. The Company and each Guarantor will indemnify and hold harmless each Holder and beneficial owner of Securities (other than an Excluded Holder with respect to any Taxes) and, upon written request, promptly reimburse each such Holder or beneficial owner for the amount of: (1) any Taxes paid by such Holder or beneficial owner as a result of payments made under or with respect to the Securities or any Guarantee or any Documentary Taxes paid by such Holder or beneficial owner and (2) any Taxes paid by such Holder or beneficial owner with respect to any reimbursement payment under the foregoing clause (1), so deducted that the net amount received by such Holder or withheld from each relevant taxing authority of each Relevant Taxing Jurisdiction imposing beneficial owner after such reimbursement payment will not be less than the net amount such Holder or beneficial owner would have received if the Taxes or the Documentary Taxes described in the foregoing clauses (1) and (2) had not been imposed, assessed or levied, but excluding any such Taxes and will provide on such certified copies Holder's or beneficial owner's net income generally. 126 At least 30 days prior to each date on which any payment under or with respect to the Trustee Securities is due and payable, if the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If Company or any non-U.S. Payor Guarantor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. Payor Company will deliver to the Trustee an Officer’s Officers' Certificate stating the fact that such Additional Amounts will be payable and the amount amounts so payable payable, and will set forth such other information necessary to enable the Paying Agent Trustee to pay such Additional Amounts to Holders of Securities on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. Wherever Whenever in this Indenture, the Notes or any guarantee of the Notes Indenture there is mention ofmentioned, in any context:
(1) , the payment of principal;
principal (2) redemption prices and premium, if any), Redemption Price, Change in Control Purchase Price, interest or purchase prices in connection with a redemption or purchase of Notes;
(3) interest; or
(4) any other amount payable on under or with respect to any of the Notes Security or any guarantee of the Notes; Guarantee, such reference mention shall be deemed to include mention of the payment of Additional Amounts as described under this Section 2.13 or reimbursement payments to the extent that, in such context, Additional Amounts or reimbursement payments are, were or would be payable in respect thereof. The non-U.S. Payors Company will pay any present or future stamp, court issue, registration, court, documentary or documentary Taxes, or any other excise, property or similar Taxes that arise in (including Additional Amounts with respect thereto) imposed, assessed or levied by any Relevant Taxing Jurisdiction from in respect of or in connection with the execution, delivery, issuance, initial resaleredemption, retirement, delivery or registration of, or enforcement of any Notesrights under, this Indenture Indenture, the Securities, the Guarantees or any other related document or instrument in relation thereto (other than a transfer of the Notescollectively, "Documentary Taxes"). The foregoing obligations obligation to pay Additional Amounts, any reimbursement payments and Documentary Taxes under the terms and conditions described above will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinIndenture.
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Sources: Exhibit (Brooks Pharmacy, Inc.)
Additional Amounts. After the occurrence of a Non-U.S. Domicile Transaction with respect to any Obligor or any successor in interest to an Obligor (each such Obligor or successor, a “non-U.S. Payor”), all All payments made by a non-U.S. Payor on under or with respect to this Note under the Notes Indenture or pursuant to any guarantee of the Notes will Note Guarantee must be made free and clear of and without withholding or deduction for, for or on account of, of any present or future tax, duty, levy, impost, assessment or other similar governmental charge (collectivelyincluding penalties, “Taxes”interest and other liabilities related thereto) unless such withholding or deduction is required by law or by the interpretation of administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of:
of the (1) any jurisdiction (other than the United States 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 guarantee of the Notes Note Guarantee is made by or on behalf of a non-U.S. Payormade, or any political subdivision or governmental authority thereof or therein having the power to tax; or
tax or (23) any other jurisdiction (other than the United States or any political subdivision or governmental authority thereof or therein having the power to tax) in which a non-U.S. Payor that actually makes a payment on the Notes or its guarantee of the Notes 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 of clauses (1) and (2), a “Relevant Taxing Jurisdiction”), will at 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 Issuer, a Guarantor or other applicable withholding agent is so required to withhold or deduct any time be required amount for or on account of Taxes from any payments payment made under or with respect to the Notes or any guarantee of the Notes, including payments of principal, redemption price, interest or premium, if anyNote Guarantee, the non-U.S. Payor Issuer or such Guarantor, as the case may be, will be required to pay such amount (together with such payments) such additional amounts (amount the “Additional Amounts”) as may be necessary in order so that the net amounts amount (including Additional Amounts) received in respect of such payments by the Holder each beneficial owner after such withholding or deduction (including any such withholding or deduction or withholding from on such Additional Amounts), ) will not be less than the amounts that amount such beneficial owner would have received if such Taxes had not been received in respect of such payments on the Notes withheld or the guarantees of the Notes in the absence of such withholding or deductiondeducted; provided, however, that no such Additional Amounts will be payable for 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 on account of:
(1) any Taxes that would not to have been so imposed or levied but for the existence of any present or former connection between the relevant Holder (or between connected with a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant Holder, if such Holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) but excluding, in each case, any connection arising solely from other than by the acquisition, ownership ownership, holding or holding disposition of such Notes 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 guarantee of Note Guarantee, or (ii) such beneficial owner not completing any procedural formalities that it is legally eligible to complete and are necessary for the Notes Issuer, Guarantors or other applicable withholding agent to make or obtain authorization to make payments without such Taxes (including, without limitation, providing prior to the enforcement or receipt of any payment on or in respect thereof;
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 (2i) any Taxes that would not have been so Tax imposed on interest by the United States or levied if the Holder 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 Note had complied with a reasonable request in writing total combined voting power of all classes of stock of the non-U.S. Payor (such request being made at a time that would enable such Holder acting reasonably to comply with that request) to make a declaration of nonresidence Issuer or any other claim or filing or satisfy Guarantor entitled to vote, (ii) any certification, identification, information or reporting requirement for exemption from, or reduction in the rate of, withholding to which it is entitled (provided that such declaration of nonresidence or other claim, filing or requirement is required Tax imposed on interest by the applicable law, treaty, regulation United States or official administrative practice 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 Relevant Taxing Jurisdiction Internal Revenue Code of 1986, as a precondition to exemption from, or reduction in amended (the rate of deduction or withholding of, any such Taxes);
(3“Code”) any Taxes that are payable otherwise than by withholding from a payment on or with respect to the Notes Issuer or any guarantee of the Notes;
Guarantor, (4iii) any estate, inheritance, gift, sales, excise, transfer, personal property or similar Taxes;
(5) any Taxes Tax imposed in connection with a Note presented for payment (where presentation is required for payment) on interest by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant Note to, or otherwise accepting payment from, another Paying Agent;
(6) any Taxes payable under Sections 1471 through 1474 of the Code as of the date of the Offering Memorandum (United States or any amended political subdivision or successor version that is substantively comparable and not materially more onerous to comply with), any current governmental authority thereof or future regulations or official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(7) any combination of the above. Such Additional Amounts will also not be payable (x) if the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Note for payment (where presentation is required) within 30 days after the relevant payment was due and first made available for payment to the Holder (provided that notice of such payment is given to the Holders), except to the extent that the Holder or beneficial owner or other such Person would have been entitled to Additional Amounts on presenting the Note for payment on any date during such 30-day period or (y) where, had the beneficial owner of the Note been the Holder of the Note, such beneficial owner would not have been entitled to payment of Additional Amounts therein by reason of any beneficial owner being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of clauses its trade or business or (1iv) any United States federal tax imposed pursuant to FATCA, (7v) inclusive abovewith 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 is held in custody with such German custodian. The non-U.S. Payors Issuer or any Guarantor (as applicable) required to withhold any Taxes will (i) make or cause to be made any required such withholding or deduction and (ii) remit or cause to be remitted the full amount deducted or withheld to the relevant taxing authority of the Relevant Taxing Jurisdiction as and when required in accordance with applicable law. The non-U.S. Payor 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 authority of each Relevant Taxing Jurisdiction imposing such Taxes and will provide such certified copies to the Trustee and the Holders. If, notwithstanding the efforts of such non-U.S. Payor to obtain such receipts, the same are not obtainable, such non-U.S. Payor will provide the Trustee and the Holders with other reasonable evidence. If any non-U.S. Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the Notes, at least 30 days prior to the date of such payment, the non-U.S. 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 relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the non-U.S. Payor shall deliver such Officer’s Certificate and such other information as promptly as practicable after the date that is 30 days prior to the payment date). The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessaryTrustee. Wherever in this the Indenture, the Notes this Note or any guarantee of the Notes Note Guarantee there is mention ofare mentioned, in any context:
, (1) the payment of principal;
, (2) redemption prices or purchase prices in connection with a redemption or purchase of Notes;
Notes under the Indenture or this Note, (3) interest; or
interest or (4) any other amount payable on or with respect to any of the Notes this Note or any guarantee of the Notes; Note Guarantee, such reference shall be deemed to include payment of Additional Amounts as described under this Section 2.13 heading to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.. At least 30 days prior to each date on which payment of principal, premium, if any, interest or other 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 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 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 non-U.S. Payors Issuer or a Guarantor (as applicable) will pay any present to the Trustee or future stampthe Paying Agent such Additional Amounts and, court or documentary Taxes, or any other excise, property or similar Taxes that arise in any Relevant Taxing Jurisdiction from the execution, delivery, issuance, initial resale, registration or enforcement of any Notes, this Indenture or any other document or instrument in relation thereto (if paid to a Paying Agent other than a transfer 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 Notes)holders upon request. The foregoing obligations in this Paragraph 2 will survive any termination, defeasance or discharge of the Indenture. References in this Indenture and will Paragraph 2 to the Issuer or any Guarantor shall apply mutatis mutandis to any jurisdiction in which any successor to a non-U.S. Payor is organized or otherwise considered to be a resident for tax purposes or any political subdivision or taxing authority or agency thereof or thereinsuccessor(s) thereto.
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